*1 felony these two offenses.32 that it was an abuse of discretion for the judge grant to trial in this case. rate, agree At I that defense counsel How can it be an abuse of discretion when constitutionally in this case was not defi- me, uncertainty there is in the law? To believing that the statute of limi- cient for regarding the fact that the law the statute is, aggravated tations for assault as we of limitations was unsettled at the time of noted, blithely years have three and for the trial indicates that judge the trial did filing quash therefore not a motion to not abuse his in granting discretion a new indictment.
trial. MEYERS, J., dissenting opinion. filed a I would hold that the court of appeals Bennett filed a motion for new trial in reversing erred the trial court’s order claiming that his counsel was ineffective granting a new trial. Because the majori- failing challenge to the indictment on ty affirms the court of I appeals, respect- two-year the basis that the statute limi fully dissent. aggravated-assault
tations
charge. judge said that he would granted
not have a motion to if quash one
had been filed because he believed the years,
statute of limitations to be three but granted the motion for new trial be pre
cause defense counsel should have appellate served the issue for review. The VILLEGAS, Ex Parte Daniel appealed State the trial court’s decision Applicant. reversed, and the court of appeals NO. WR-78260-01. that, is, best, “Because the law at unsettled to two-year as whether the statute of limi Court of Criminal of Texas. assault, applies aggravated tations Dec. grant trial court did not have discretion to a new trial based on failure to preserve State appellate purposes.”
that claim for Bennett, 05-11-00252-CR, No. 2012 WL *4, Tex.App.
11181 at LEXIS 24 at 2012) (not (Tex.App.-Dallas January
*10
designated publication). majority question overlooks the judge
whether the trial abused his discre- I disagree appeals
tion. with the court of 12.03(d) might peculiar Legislature presume be amended to read: seem degree "ag- intended Except that this first or third provided chap- as otherwise ter, any “aggra- gravated” offense bears the title offense have the same statute of vated," including aggravated assaidt and limitations as the various limitations for the aggravated perjury, carry misdemeanor, the same jail felony, state or third de- period primary limitation as the crime. gree felony offenses set out “Promotion of Although “Aggravat- there is an offense titled Application Prostitution” offense. Prostitution,” ed Promotion of that crime is 12.03(d) appear particularly inept would so different from the offenses described in here. "Promotion of Prostitution” that it would *2 Law, John Spencer, Attorney
Joe A. at Law, Paso, TX, Mobbs, Attorney at El P. Appellant. El Attorney Esparza, Jaime District Paso, TX, County, El Lisa C. Paso McMinn, Austin, The Attorney, State’s State.
OPINION PER CURIAM. provisions
Pursuant to the Proce- of the Texas Code Criminal dure, transmit- the clerk of the trial court for a writ application ted to this Court this corpus. Young, 418 of habeas (Tex.Crim.App.1967). Ap- murder capital was convicted of plicant imprisonment. and sentenced life con- affirmed his Eighth Court State, Villegas viction. No. 08-95- (Tex.App.-El July Paso 00272-CR 1997) (unpublished). contends, allega- in several
tions, assis- received ineffective counsel, actually he is tance of innocent. court held a series of fact and hearings findings
live made of law. court deter conclusions Ap mined that counsel was ineffective actually Schlup v. plicant is innocent under Delo, 513 U.S.
L.Ed.2d 808 Based on this Court’s record, review independent to relief agree that is entitled counsel, but due to ineffective assistance of that he he is disagree has shown In a claim, demonstrating innocence is satisfy to must prerequisite have an otherwise barred constitutional considered on the merits. In this at that Sixth filed a concurring opinion. the trial court found Amendment It has sometimes been said that we violations, combined with cumula- two “recognize! types of ‘innocence’ *3 innocence, evidence of that tive showed claims.”1 is the “bare One claim of inno- Because was cence,” we recognized which to be a due- Applicant’s process-based claim in Elizondo.2 The claims are not barred as so-called “Schlup other is the actual inno- Schlwp a innocence de- claim,” which cence we have identified as improper. on them is We further pendent upon being opinion based the of the Unit- that that has not shown find Supreme ed States Court in Schlup “unquestionably inno- facts establish” with respect Delo3—a decision to federal Elizondo, 947 parte Ex S.W.2d cence. has procedure bearing that on state 202, However, (Tex.Crim.App.1996). 209 proceedings, except habeas to the extent agree Applicant has demonstrated that provi- abuse-of-the-writ presenting was ineffective for after patterned counsel sions were it.4 The United (at possible perpetra- Supreme of States Court does not least alternative will) yet, assuming it ever present- recognize discovering tors and for not and implicate bare-innocence claims due allowed evidence that would have the ing so there process,5 analog and is no federal voluntary jury give effect to the confes- in to our Elizondo. But in jury in sion instruction submitted Court declared Supreme that a show- case. ing may operate of actual innocence aas granted. judgment Relief is federal review of gateway to of the merits No. 76187 in the District Court Cause 41st other federal constitutional claims under aside, County Appli- of El Paso is set and in which circumstances those constitutional custody is remanded to cant claims would otherwise be of El Paso answer the County Sheriff analog gateways barred.6 Our are con- charges set out the indictment. 11.07, 4(a)(2), Section tained Article and necessary court shall bench issue 5(a)(2).7 They are days within 10 mandate warrant after the statute, binding Supreme creatures of of this Court issues. Court case law. be Copies of this sent to “recog- For this Court to continue to Texas Department Jus- Criminal “Schlup nize” so-called innocence claims” tice-Correctional Division and Institutions to the bench does a disservice and bar Pardons Paroles Division. misunderstanding kind of engenders the convicting court in this exhibited opinion. a of the matter is that there concurring filed case. The truth 538, Brown, (Tex. Collins, (citing, e.g., parte Ex 544 1. 205 S.W.3d 5. Id. at 158 Herrera v. 506 417-19, 853, Crim.App.2006). 113 122 L.Ed.2d (1993)). Elizondo, (Tex. parte 2. Crim.App.1996). U.S. at 3. 513 U.S. 115 S.Ct. 130 L.Ed.2d 4(a)(2), § 7. Tex.Code Crim. Proc. arts. 11.07 § Blue, 151, 158, 4. See Ex 230 S.W.3d (Tex.Crim.App.2007). actual “Schlup a thing as really no such Wayne Dex HONEA. In re We have claim” in Texas. innocence that works mechanism statutory gateway No. 11-13-00300-CV. gateway. federal the court-made much like statutory gateway to just that —a But it is Court federal constitutional reaching other Eastland. actual-inno- ironically, a bare (including, Elizondo) that would cence claim under Oct. appli- to a habeas be unavailable
otherwise *4 now-codified abuse-of-the-
cant under our required It is provisions.
writ an actual-innocence It not even
Schlup. is merely operates right. It
claim in its own permit consideration a mechanism
as oth- claims that would constitutional
other barred because
erwise be subsequent in a first time
raised for the application.
writ both his claim applicant raised
Here of counsel and his claim in this actual-innocence
Elizondo proce- There is no application. writ
initial directly to the proceeding
dural bar to The abuse-of-the- of both claims.
merits in Article is provision
writ no reason for so there is triggered, exception that invoke the is
anyone to gateway provision Sec-
embodied certainly is And there
tion Schlup.8 mention We should
occasion to doing so.
quit remarks, in the I concur
With these judgment.
Court’s thing “a say no such as today, says Better to that there is the Court In its Applicant’s ineffective assistance Schlup innocence claim” in "[b]ecause are not of counsel claims gateway provision our own Schlup innocence claim de- having triggered in this Majority improper.” pendent on them is (including his raised his constitutional implies Opinion at 887. This sentence claim) in an initial Elizondo "proper” would ever be a context there application. writ "a innocence claim.” which to assert