Ex Parte Tuan Van Truong

when it was before this Court on direct

appeal, or even when it was before this postconviction stage of the process, this granted Court would have pe-

titioner relief and ordered the attempted Truong, Tuan pro Van se.

murder conviction set aside. The majority Holmes, Jr., John B. Atty. Dist. and Cal- opinion correctly answers the certified Hartmann, vin A. Atty., Asst. Dist. Hous- question in the affirmative. ton, Huttash, Robert Atty., Austin, State’s For all of reasons, the above I concur for the State. and dissent.

OPINION

PER CURIAM. postconviction This is a petition for habe- pursuant relief to Article V.A.C.C.P. The claim we ordered filed and. TUAN VAN TRUONG. set is that in phase the trial No. 70672. court “committed in giving error” improper instruction. Court of Appeals Texas, Criminal En More particularly, Applicant Banc. contends he is entitled to consequences relief from of a May 1989. imposed sentence pun in accordance with by jury

ishment assessed unconstitution charged ally parole law mandated 37.07, 4, Article V.A.C.C.P. See Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987, 1988). outset, however,

At the the Court is con- fronted with the threshold whether the contention be raised and pursued under authority of Article 11.07. Regardless prior appeal present- direct ing point challenging validity sentence, we hold will his “Rose claim” proceeding under Article 11.07. emphasize First we that this Court decid- ed the issues in “solely Rose on the Consti- Texas,” id., tution and laws of the State of Accordingly, opinion 531. the instant basis, likewise founded on that same do implicate not intend to a federal question, substantial or otherwise. I, Rights pro- of the Bill of vides:

“The writ of habeas is a writ of right, suspended. and shall never be Legislature shall enact laws remedy speedy and effectual.” from works (1877), heavily it drew in his 74 person restrained any is When explain: to corpus is the learned commentators liberty, the writ “ 11.01, V.A.C.C.P. remedy to seek. Article irregular- for proceeding ‘A defective Legis- speedy and the effectual To make illegality may be void for and one ities alia, inter enacted, several the certiorari; lature but upon error or revised Eleven, provisions Chapter C.C.P. gives au- defect which is the latter corpus on discharge thority to preliminary procedures Generally, once a is to be want irregularity A defined matter is accomplished the and have been rule or prescribed to some adherence decision, or court judge ripe for on Habe- proceeding.... Hurd cause mode of “legal whether shall determine 434, Pr. and Corpus, citing Tidd’s restraint,” imprisonment or shown for Chitty’s Geni. Pr. 509. none, applicant. 3 discharge the if and parte Coupland, See Ex 28 Article 11.40. of radi- predicable is Illegality properly (1862). Chapter 391 Elev- Tex. only, signifies that which and cal corpus “applies to all cases of habeas en principles contrary of law is illegally enlargement persons for the distinguished from mere rules proce- in restrained custody any in or manner held in the compete defect It denotes dure. liberty[7j” Article 11.64.1 personal in their Hurd, 333; Pr. 485.” Tidd’s proceedings. af- to Article Pursuant (emphasis original). To Id., in at 80-81 in the writ felony cases ter final conviction Scwartz, Ex parte Ex supra, with compare challenge appli- “legality of the will lie to Slaren, (1878), Tex.App. 662 confinement,” resulting cant’s application illuminating and illustrative of “remanding the of this Court either propositions. common law of these ordering his petitioner custody or [sic] governed procedural rules law Common release, may justify,” as the law and facts state applied any particular and were 2(c) (d), and and § procedure the code of criminal case where on, and Early Supreme Court 1.27, V.A. provide a rule. Article failed to recognized pur this Court for then predecessors Chapter Until C.C.P. poses law the common of habeas provide procedures specific Eleven did distinguished proceedings their results and solely handling posteonvition for designed according to the character and effect corpus. See Historical write of habeas gener relief. See error claimed warrant 11.07. to Article Note Banks, (Tex. ally p. Leg., 48th Acts Oh. (Clinton, «L,dissenting opinion Cr.App.1989) felony cases to fill the void proposed 4-10). judge presented authorizing any district State, Perry v. Thus, 41 Tex. 488 hearing, set for petition to the same awith pointed Supreme pithily Court facts order issuance and to to ascertain out: along Court returnable to this of the writ was not “The writ made, well thus and as the record with operate of error or designed to as a unit whereby this supplementary certiorari, does their force and not have determined; might have facte errors It does not deal with and effect. matter and then hear the Court would proceed- irregularities which render remanding petition- its “enter only as to merely, ings voidable release, as the ordering his custody or er to them void.” render justify." proce- and That facts Id., discharging “exclusive” was to be dure justification Its is stated prisoner. the Court this Court named When Scwartz, Tex.App. viz: Appeals, in supplied throughout indicated. emphasis here 1. All opinion otherwise of this by the writer governing relief, statutes viz: tabling the writ pleadings “[P]resent “would inadequate to fully petitioner’s under the confinement arising conviction, cover cases after final illegal;” proof felony conviction going to necessity prompt [a] issues petitioner exist[s] material to “whether deserving petitioners adequate relief for restrained,” is illegally and this Court was rights as well of the state in such still to its remanding “enter cases[.]” petitioner custody ordering to or his re- lease, law and justify.” the facts Except the may justi “as law and facts 1967, ante, Acts at 1734-1735. fy,” Legislature the identify failed to “de serving” However, prisoners. op at first parte Young, Ex (Tex. 824 418 S.W.2d parte Ricketts, Ex portunity, 148 Tex.Cr.R. Cr.App.1967),the Court construed amended 569, (1945), 189 S.W.2d 872 the Court firm light 11.07 of develop- several quo the status ly preserved ante.2 ments, including concepts of the “[n]ew Thus common law prescribing meaning rules is- process of due by announced the post-conviction sues Supreme habeas States,” of Court the United corpus prevailed, and those limitations re- recognizing, “A judgment of conviction ob- is, mained in force—that until advent of tained in of violation of law is Question.3 The Substantial Federal jurisdiction void for of want the court to Id., enter such judgment.” at 826. Ac- Because the 1943 and ensuing enactment cordingly, the Court determined that in a judicial treatment failed to meet needs of “the corpus litigation increased federal habeas question why [applicant] is confined Supreme and the concomitant demands of Department in the Texas but Corrections petitioners courts, Court on and state re- judgment whether the of conviction under spectively, in such cases as Townsend v. Id., which he is so confined is void.” at Sain, 293, 745, 372 83 U.S. S.Ct. 9 L.Ed.2d 827. Noia, Fay v. (1963), 770 391, and 372 U.S. 822, (1963), 83 9 S.Ct. L.Ed.2d 837 Acts sum, Legislature in 1967 the devised 1967, Leg., 1732, 659, 7, 60th p. Ch. and the Court by sanctioned construction a (Act), Legislature 1734-1735 the reworked system remedy to render the via habeas expanded procedural and pro- requisites to effectual,” corpus “speedy and consonant

duce revised Article 11.07. with the admonition and mandate of Article I, 12, Rights. Unlike its earlier effort in behalf of Bill of the “de- Thus constitu- serving Legislature petitioners,” guarantee the tional pro- provisions availability of seeking vided some pursuant legislative standards for and ob- Great Writ en- applicant 2. judgment The Court to 119, only understood take the "The of inferior courts can position under that amended article "he has by attacked for such legal right impeach set aside an illegalities render them void. Erroneous judgment apparently compe- valid court of judgment having jurisdic- of inferior courts jurisdiction^]" pointedly tent noted the cir- subject person tion of the matter of the “jurisdiction cumstance that the trial court had successfully upon cannot be attacked matter, person, subject as well as corpus, they are so far erroneous as to power judgment, the questioned." is not even judgment void. “The of a court thought The Court that "unless jurisdiction competent can not be im- right, said article accords to the relator peached on collateral attack exist,” "nothing does not found in the statute irregularities extending for errors or enlarged legal right[.]" mentioned which ... his power far as to affect proceeding ap- Because it was obvious that the jurisdiction in the court to act case.'" plicant was a attack initiated collateral on what appeared judgment to be a valid of a court of hightened 3. For reflections of a awareness of competent jurisdiction, the Court concluded the see, corpus proceedings, that issue in our provide amended did not for that statute kind of McCune, 213, e.g., parte Ex 156 Tex.Cr.R. 246 Id., challenge. S.W.2d 189 at 873. Puckett, (1952); parte S.W.2d 172-173 Ex quoted parte Then the Court from Ex Dicker- (1958); 165 310 S.W.2d 118 Tex.Cr.R. son, Tex.App. 30 17 S.W. 1076 sub- Bush, Ex 166 Tex.Cr.R. S.W.2d ante, stantially propositions the same discussed (1958). citations, pertinent part omitting viz: hearing, entire designed fected the to enable actments contemplation Cole and to obtain relief within make a collateral attack man, (Tex.Cr.App.1978). final of conviction ren- against a 599 S.W.2d Id., 10; com- Maldo void not for reasons under see also dered at 537. n. (Tex.Cr. also for nado, mon law but want n. convicting enter it where con- court to rehearing decided App.1985). the Court On process. had in of due violation viction in Rule analysis codified that "the harm 81(b)(2) in this applicable to the error However, validity here is not issue case.” reflecting part of the adjudged guilty of the offense applicant is Therefore, ad- contrary the contention rather, jury; as found verdict of the has deter- by applicant, vanced part claim is directed to that in- giving the mined that unconstitutional reflecting punished applicant parole render ver- struction on did not jury as- in accordance with verdict assessing punishment dict of inval- 42.01, Article sessing punishment. See part that judgment id nor based in subdivision V.A.C.C.P. And the § give To the instruction verdict void. is had contention that because indeed, more than but is no be harmful unconstitutionally instructed on the been is say, That reversible error. law, assessing its parole punish- verdict voidable, is and as such ment at best invalid, by is extension the result- by writ subject to a collateral attack reject We the con- ant void. corpus. tention. Inasmuch as will be unable State, supra, In Rose v. the Court held including unconstitu demonstrate that 37.07, 4, along Article that with instruc- charge parole on in a tional instruction mandates, tion it is unconstitutional in that punishment under on Article separation powers doc- violates fatally entire infected the II, trine of Article and also violates the punishment proceeding as to render Due Clauses of Article Course §§ sentence invalid and resultant Rights. Bill of compare Ex parte see and Maldona Addressing holding do, supra, n. Ex Coleman at distinguished type Scwartz, of statutory supra, we hold and Ex both “[t]his by from charging cogni ... error as envisioned his claim” of error is not that “Rose 36.19, V.Á.C.C.P,” id., 553; at it did corpus pro zable in a remotely providing entertained, suggest ceeding, will and thus not be jury with an unconstitutional instruction under Article 11.07. solely pun- pertaining to considerations of petition relief on Accordingly, the for by ishment voided the verdict rendered ordered dismissed. is that

jury. consequence The a harm under Tex.R. analysis must be conducted J., P.J., MILLER, McCORMICK, 81(b)(2) Pro.App. instead of Almanza v. result. concur in the State, (Tex.Cr.App.1985), 686 S.W.2d 157 TEAGUE, Judge, dissenting. for “to determine whether it calls reversal the conviction.” Ibid. long stand Recently, reaffirmed the that habeas original ing, poorly understood notion holding, the latter on sub- As to appeal Ex substitute for agreed: “The is not a plurality a risk mission (Tex.Cr.App. Banks, 769 S.W.2d 589 will on extraneous be based 1989). was that matters society The effect is intolerable considerations not, been, on raised but were concepts of could have constitutionally demands way by appeal might pursued not later be in its fundamental fairness be honored is akin to principle corpus. of habeas justice system.” criminal liti forfeiture, whereby Nevertheless, unwilling common majority a waiver complain of errors gants expected to fatally in- are find that “the infirm instruction losing right (and due course or to com they implicate risk because per- the federal plain altogether. of them state) haps constitution, regard nor do we them outside the usual rules of waiver application Naturally, a literal of the rule and forfeiture for this reason alone. A would utterly eliminate the writ of habeas array alleged whole constitutional errors corpus, challenge at a least as to defects routinely present nothing are held to appealable proceedings, such as criminal when raised review for the first time on Consequently, trials. certain defects long regarded falling appeal. Yet some at been outside the of these least are effect, practical rule. these defects can- thought to be in a habeas cor- waived, by object not be either failure to at hand, pus proceeding. On the other certain complaint trial or of a on absence insufficiency such defects of evidence appeal. short, they any can be raised invariably appeal are entertained on with- time, including by pro- a remote collateral necessity complaint trial, out the ceeding corpus. such as habeas though precludes even our caselaw consid- defects, course, of them among way corpus. Chief eration affecting Yet, adversely juris- matters a court’s criminal a conviction on insufficient diction. evidence, remembered, Without tribunal directly will be all, no authority purported to act at and its We violates law. should be acts are Clearly, therefore void. find, therefore, surprised to that convic- rendering void are not waiva- constitutionally tions based insufficient were, If they ble. the proceeding would cogni- evidence are not void and Hence, merely not be void but voidable. is, corpus. in habeas But such zable in- implication, to cor- will lie deed, current of our state caselaw. jurisdictional defects, rect defects See, Christian, e.g., which cannot be waived. See Ex (Tex.Cr.App.1988). Watson, 601 350 (Tex.Cr.App.1980). S.W.2d examples Further could be elaborated at arise, however, Problems when the Great length. Clearly, implicating issues double Writ is upon nonjurisdic- called correct counsel, jeopardy ineffective for exam- tional, waivable, example, defects. For special ple, problems. point The have to be Court, during twenty years the last this approach is that cog- made here our to the lead, following a federal has the writ made by application of nizability claims raised arising available to errors from the correct been, and contin- (and state) perhaps violation of federal con be, hopelessly largely ues to ad hoc and upon vague stitutional law rather theo with our to the approach inconsistent ry jurisdiction that a trial court lacks voidness, jurisdiction, retroactivity, process convict without due of law. See waiver, standing, Today, and forfeiture. (Tex. parte Young, S.W.2d potentially that it is also we find odds Cr.App.1967). prohibitions most Since rapidly evolving with our law harmless applicable are federal constitution error. way only by states the due clause, based it seems that convictions sense, majority opinion what in upon any error constitutional violate this teaches is that voidness and harm- case process. presumably, And convictions mutually concepts are exclusive lessness court obtained are the trial proposition on its —a rather unremarkable upon has no face, disturbing implications. in its appear them. Also it would to follow Here, applicant is denied relief because his making them the defects so are not waiva- corpus. claim is not ble. cognizable because, even if It his con- isn’t true, he attacks tentions appearances deceiving

But can be when judgment cannot be void is not The patent void. it comes to such a fiction as this. subject judgments void aren’t to a except do because every we context analysis. Consequently, any defect jurisdictional simply regard not harm subject of to the following in reference rule to the harmless subject constitu rights in the federal “fundamental corpus. cognizable in habeas enact ephemeral not “They are tion”: one interesting result and This is passing occasions. ments, designed meet which, with even a modicum pursued if immortality approach ‘designed to They are reduce this significantly rigor, should ap can institutions human nearly Also, it corpus caseload. Court’s habeas care, and future is their it.’ The proach the antecedent fairly well with comports tend good and bad provision for events Court, one at least when caselaw made. can be prophecy no of which encies involving a substantial opinions excludes constitution, there application of In the although possible, It is question. federal only of be fore, contemplation cannot our view, obliged my that we are likely in been, Under be. but what what has questions federal constitutional to address indeed would a constitution any other rule corpus even under by habeas presented application as would easy of be as not be we would circumstances where gener power. Its efficacy deficient state constitutional obliged to address value, and be little principles al would way. Cer- presented in the same questions impotent and into by precedent converted suggests as majority opinion tainly, the Rights declared formulas. lifeless me interesting to is most much. But what reality. And might lost words by majority approach taken about meaning and recognized. has been most provoke the it will doubtless developed vitality the Constitution have cogniz- thinking on the creative construc and restrictive against narrow years. by the Court ability undertaken Dulles, 356 U.S. Trop v. tion.” Also see connection, lately I am inclined to In this (1958); Fur 2 L.Ed.2d 630 78 S.Ct. cognizability should focus of think that the 238, 92 S.Ct. 408 U.S. Georgia, v. man general theory forfeiture than a more (1972). L.Ed.2d 346 cognizable by way of What is of voidness. have the same I that these words find corpus is a matter to be determined meaning meaning it comes to what when expand- judicially by this Court. It can be funda- of the most give to one should require- to meet current ed or contracted citizenry guaranteed to our rights mental Moreover, its reach system. of the ments Rights, which Texas Bill of through the Although comport with fairness. should right to and inviolate fundamental rendering proceeding void all defects right, by our corpus, which cognizable in habeas continue to be should suspended.” Constitution, “shall never jurisdiction, powerful reasons of Also see 1, 12, Texas Constitution. Art. might also that other defects I now believe states without Art. scope of the writ brought within the whatsoever qualification any limitation tending to objectively under circumstances a writ that “The writ otherwise constitute excuse what would suspended.” right and shall never long right complain, so forfeiture ap- denying Therefore, approve I do entitled have been as the would cause, simply in the instant plicant relief existing at the law relief either under he attacks because under alleged defect or the time of the affording him without law, changes in the subsequent retroactive he has not to demonstrate a chance proceeding will long as the habeas and so mean- opportunity and fair yet had a full previ- issue relitigation of an not involve in his the issues raised litigate ingfully adversely to finally determined ously and fail- that his application or subsequent applicant’s position be excused. now should to do so before ure changes in the law would retroactive result. a different required States, 217 U.S. v. United

In Weems the Su 54 L.Ed. 793 30 S.Ct. stated States of the United preme Court

Case Details

Case Name: Ex Parte Tuan Van Truong

Court Name: Court of Criminal Appeals of Texas

Date Published: May 10, 1989

Citation: 770 S.W.2d 810

Docket Number: 70672

Court Abbreviation: Tex. Crim. App.