*1 18.01(b) only legislature I the specifically would hold that Article supplement search process the can the statute to allow regulate expand comprehensively by telephonically, and telephonic warrants to be obtained obtaining search warrants Therefore, means, many respect- as so I yet it to do so. or other electronic fully Until that other have now done.36 dissent. states time, the of whether circum- question the telephonic warrant
stances of an individual satisfy the suffice solem- application will requirement nizing of the oath function 18.01(b) re- under will have be Article case-by-case basis. solved on a CONCLUSION SLEDGE, Casey Tyrone Ex Parte Judge rec- Ortega and Harris Because Applicant. on tele- ognized one another’s voices the time swore out his phone Ortega at the AP-76,947. No. affidavit, properly
warrant was solem- Appeals of Criminal Texas. Court Ortega nized. because the And reduced it to writing Judge and faxed affidavit to 16, 2013. Jan. filing, probable Harris for the basis cause properly was memorialized. Under circumstances,
these that Article we hold 18.01(b)’s “sworn requirement of a affida- we Accordingly, vit” satisfied. affirm was appeals. court of J., MEYERS, dissenting opinion. filed a MEYERS, J., dissenting opinion. filed a legislature
If had meant to allow by telephone, it warrants to be sworn to majority would so. The here is have said doing exactly majority what did (Tex.Crim. Spence v. a statute App.2010), by broadening beyond major legislature what the intended. ity correctly points here out our Court statutory language
should construe it, enlarge upon and that legislature supplement can amend or specifically regulate process
statute to obtaining a search warrant electronic Nevertheless,, majority means. still ap the telephonic concludes that warrant plication permissible in this case. was January on The 83rd convened
Casey Tyrone Tulia, TX, Sledge, for Ap- pellant. Sims,
Randall Attorney District Potter County, Amarillo, McMinn, Lisa C. State’s Attorney, Austin, TX, for State.
OPINION
PRICE, J., delivered opinion of the KELLER, P.J., Court which WOMACK, KEASLER, HERVEY, JJ., joined.
Pursuant to a plea bargain with the placed was on deferred adjudication for the offense of sexual as- sault of a child.1 convicting court adjudicated later the applicant’s guilt and years’ sentenced him to five imprisonment because, among other things, allegedly he committed two new offenses. No appeal was taken. The applicant filed an initial post-conviction application for writ of ha- corpus pursuant beas to Article 11.07 of Procedure,2 the Texas Code of Criminal which he claimed that there was insuffi- support cient evidence to his conviction. 22.011(a)(2). 2. Tex Code Crim. Proc. All 11.07. subse- Penal Tex. Code quent references to Articles are to the Texas Code of Criminal Procedure. recognized basis was not 28, 2012, legal the initial we denied March On written order. reasonably for- and could not have been appli- subsequent post-conviction This is a mulated from a final decision *3 it, corpus. In for writ of habeas cation Court, a court of Supreme States United court lacked that the trial applicant alleges States, or a court of the United appeals adjudi- his deferred jurisdiction to revoke of State of appellate jurisdiction [the community supervision because cation of the on or before date Texas] [the did not issue until for his arrest capias application].7 community days supervision after his three we are applicant allege, The fails to State,3 Langston In we period expired. of, any legal new basis that would jurisdiction to unaware that a trial court loses held a defendant’s proceed adjudicate statutory prevents us sidestep the bar to issue a when the district clerk fails reaching from the merits of his claim. period ex- probationary before his capias subsequent application New Facts: A pires. may avoid a Section 4 bar estab- also unsympathetic we are not While lishing that a factual basis now exists claim, lacks the applicant’s this Court he applicant was unavailable to the when Because this authority grant him relief. applica- writ post-conviction filed his initial appli writ subsequent post-conviction is a one that tion.8 A new factual basis is cation, by the abuse of the we are barred “through could not have been discovered doctrine, by Section writ as codified be- diligence” the exercise of reasonable reaching the merits of Article application.9 of the initial fore date claim, granting much less relief.4 diligence have stated that reasonable We 4 of Article 11.07 contains three Section “suggests inquiry at least some kind of general rule statutory exceptions to into the matter at issue.”10 In been made of a that bars consideration case, applicant claims he the instant post-conviction application, writ but exception meets this because “he did application “contains” no “suffi current discover” the factual basis for the current establishing” any facts of the specific cient 7, 2012,” claim until “on or about June exceptions.5 application enumerated The initial writ post-conviction after he filed his either fails to contain facts that establish law, facts, applicant But the does not application. new or actual innocence. new unable, explain why through he was rea- applicant Law: If an can invoke a New the informa- diligence, sonable to ascertain for relief that was unavailable legal basis filing post-conviction tion before his initial post-conviction time of his initial at the fact, readily ap- writ In it is application. applicant may over- application, easily could have parent To do come the Section bar.6 now, just so, obtained the information before he must establish that 4(b). § (Tex.Crim.App.1990), 7. Article 11.07 3. 800 part by overruled in Harris (Tex.Crim.App.1992). 4(a)(1). § 8. Article 11.07 4(a). § 4. Article 11.07 4(c). Article 11.07 (Tex. Lemke, 10. Ex Crim.App.2000). 6. Article 11.07 purpose as he did for the of developing attempt even prima to make a facie claim post-conviction current writ application.11 of either a constitutional violation or his innocence, actual so he cannot avoid the Innocence: If includes Section 4 bar under this exception.14 “by preponderance facts that establish the evidence” absent a federal consti- The violation,
tutional “no Dissent —Jurisdiction: juror rational could argues that, dissent regardless have applicant guilty beyond found the dic- tates of doubt,” the lack may reasonable he defeat the bar over a case will prohibiting subsequent post-conviction void, render the judgment *4 Brooks,13 writ and such a application.12 parte judgment “may In Ex always be col- that, explained laterally we to exception invoke this attacked.”15 But we have never bar, to the subsequent “always” a said that in applica- this context should tion must contain facts to establish both include for the a first time in a subsequent prima application facie claim of a constitutional viola- for writ of corpus habeas prima tion and a facie claim of actual satisfy any fails to of the three exceptions Here, applicant innocence. the does not to our statutory abuse of the writ doctrine. filing subsequent 11.Before post-convic- sary support to application the current writ application, applicant tion writ the set out to indicates a minimum amount of effort would prove jurisdiction that the trial court lacked necessary have applicant been for the to se- adjudicate to capias his because the is- information, cure the same through reason- probationary sued after period expired. his diligence, able filing before post- his initial claim, Langston, supra. See To bolster his the application. conviction writ applicant attached as Exhibit "A” a letter he wrote, 7, 2012, apparently dated June to a 4(a)(2). 12. Article 11.07 "Mr. apparent response Brian Thomas.” An applicant's inquiry to the is written on the 396, (Tex.Crim.App.2007). face "Deputy of the same letter a from Sel- Extraditions,” man” from "Warrants and in- 14. Under the exception actual innocence to forming applicant capias of the date his the abuse of the writ doctrine codified in applicant issued. The does not refer to the applicant must establish a "vio the-body letter in this exhibit in applica- of his lation of the United States Constitution[.]" tion. We have no information as to the iden- Tex.Code Crim. Proc. art. 11.07 tity authority of Brian Thomas. Nor can applicant specifically does not assert that a is, Deputy we tell who Selman what law en- just constitutional violation for, occurred— entity forcement he works or when he adjudi the trial court lacked to apparently applicant's query. answered the guilt. cate certainly possible It is to ar However, that, response seems in to his does, gue, as the dissent that a court that query, applicant copy was able to obtain a purports to act without violates capias, revealing of his the date the district process rights the due of the individual it it, clerk issued applicant which the also at- purports upon. Dissenting Opinion act taches as Exhibit "C.” 116; Ogle see also 43 Tex.Crim. Though Exhibit "A” does not tell us when (1901). 63 S.W. Because the applicant may have reply received his applicant prima showing fails to make a facie Selman, applicant alleges that "on innocence, of actual his claim would be or about June 2012” he learned the date sponte barred whether or not we sua con issued, capias presumably (although that his jurisdictional allege strued his claim to a constitutional so) expressly say he does not Thus, from Selman. viola tion— as the dissent would admission, by his own have us do. data, necessary was able to obtain the includ- ing copy capias, bring a his current period claim days Dissenting within a Opinion (quoting few of his first at 116 Ex Seidel, attempts (Tex.Crim. to do so. The relative parte ease with which he was able App.2001)). to discover the facts neces- convicting court Blue,16 a claim that Indeed, essentially we volves in Ex is, course, axio- There, It capital jurisdiction.21 lacked contrary. held to the our, juris- under Sec- review of in case law that applicant argued habeas matic 5(a)(3) post-con- 11.071 of the Code cognizable of Article claims are dictional Procedure,17 he should be able to proceedings.22 Criminal viction retardation a claim of mental interpose Moreover, to be recognized have them we in a penalty bar of the death ordinary no- regard cognizable post-conviction essentially be- tions of —even default — every opportunity enjoyed he had though optional with simply cause it is post-convic- in his initial to raise that claim subject matter agree to confer parties so.18 but failed to do application, tion writ convicting court where jurisdiction on mentally retard- execution of the Because Therefore, lacking.23 Eighth absolutely ed is barred Legisla- as unless and until such time the. Amendment, to claim he should be able otherwise, in exercise its might say ture time,” including mental “at retardation post- authority regulate constitutional *5 appli- writ subsequent post-conviction ain procedure,24 a meritorious conviction writ cation, notwithstanding the will truly jurisdictional dimension claim of rejected of the writ doctrine.19 We abuse , in an subject to vindication “always” be claim, pre- holding legislative this for writ original post-conviction application rogative regulate post-conviction not mean here to corpus. We do and corpus procedure was well established properly say otherwise. Had the not include in a that “at time” does original claim in his present raised his application writ subsequent post-conviction writ, reach the we would not hesitate to of Article that cannot meet the dictates and, relief. appropriate, grant merits if 11.071, reason to Section 5.20There is no subsequent post- in the context of But not be true of believe that the same should Legisla- the applications, conviction writ 11.07, of the writ Article Section 4’s abuse validly exercised its constitution- ture provisions. make regulatory authority to ally-endowed that fit clear that those claims it argues
The
that this case
dissent
because,
statutory exceptions prescribed
in-
the
from Blue
within
distinguishable
is
litigants’
Implementation
(Tex.Crim.App.2007).
dent
the
wishes.
16.
upon applications plainly embod- Because the statute admits of no 4(a). ied in we call jurisdictional exception, Section have no to Dissenting Opinion at 25. 29. 115-16. Dissenting Opinion 26. at 114-16. (Tex. Boykin 30. Crim.App.1991). Dissenting Opinion
27. 114. V, Dissenting Opinion at 5(c). 116. Const, Tex. Legislature contrary, fects.36 To the the extra-textual considerations.32 resort to have us nevertheless meant to mimic federal of largely The dissent would abuse 4(a) that, in of enacting Section presume practice.37 ap- the writ We note in of Legislature the was aware Article plying provi- the federal of the writ abuse habeas cor- post-conviction the of evolution of applicable challenges sion federal the of pus jurisprudence, burgeoning convictions, one criminal at least federal beyond chal- cognizability of claims those recently of held appeals court convicting of lenging the the court rightly federal district declined to non-jurisdictional court include constitu- petitioner’s entertain a claim a subse- history, this the tional claims.33 Aware of petition quent federal asserts, Legislature dissent the must sure- convicting the court had lacked ly have meant limit him.38 to convict 4(a)’s provisions abuse of the writ Section The Dissent —Innocence: Although category claims.34 only the latter no applicant argument ap- makes authority supporting The dissent cites no 4(a)(2) of plication satisfies Section Article assertion other than the common 11.07, the According dissenters do. to the Legislature aware presumption “is dissent, judge because trial in this affecting relating law to” its case adjudication proceeding deferred had not reject We it. That enactments.35 yet applicant guilty, found the the rational may have been aware of 4(a)(2) (here, posited fact-finder expansion cognizability historical trial judge) could not “have found does establish that it meant for its not court guilty” because trial doc- codification abuse the writ had lost to do so.39 The dis- expansion trine to circumscribe that authority sent finds for this assertion non-jurisdictional, with constitu- respect Blue, In jury Blue. we held that a rational Moreover, to the tionally based claims. punishment “could” answer capital legislative extent that we have looked to *7 special only issues in the State’s favor—“if 4, past in the history to construe Section for the reason of simple finding that” emphasized legislative we have the clear would, mental retardation under provide intent to but “one bite of the [full] Amendment, Eighth qualification for obviate apple,” expressed with no submis- “in predicated jurisdictional, jury sion of those issues to the the first habeas claims on constitutional, Here, contrast, opposed merely place.”40 as de- the relevant 473; Blue, supra, Boykin, supra, 32. at See at 785. 37. at 160 n. 40. 115-16; Choinski, 205, Thompson Dissenting Opinion 33. 38. v. 525 F.3d 208 at 115 n. 5 & 1118, (2nd Cir.2008), denied, parte cert. Crispen, see U.S. also Ex J., (2009). (Tex. 1989) (Clinton, 129 S.Ct. L.Ed.2d Crim.App. 106-108 concurring) (describing the evolution of Dissenting Opinion 39. at 116-17. The dissent scope cognizability addressing anomaly not the apparent does address vindicating jurisdictional claims to also analysis apply only its can in cases of deferred defects). substantial federal constitutional adjudication, involving regular in never cases probation proceedings. revocation 34. Id. at 115-16. Blue, State, supra, applicable provi- at 161. The (citing Miller Id. at 115-16 Blue, 5(a)(3) sion subsection of Article (Tex.Crim.App.2000)). special deals with issues submit- Torres, jury penalty 36. Ex 473-74 ted to the in a death That case. (Tex. 1997). Crim.App. subsection reads:
HI fact is not finding obviated. trial doctrine that is embodied in Section placed applicant court could not have
on adjudication community super- deferred Conclusion: In Section 4 of Article vision “in the first place” finding 11.07, the Legislature has explicitly pre- that the State’s at least scribed the only evidence “substan- circumstances in which we may reach the merits of a Thus, guilt[.]”41 tiates the defendant’s at post-conviction application. writ “[I]t the time the scheme contem- not for the courts to add or subtract” from plates of finding guilt that a must be that enactment.45 have long We held that (albeit made upon not acted in a formal the Legislature is authorized to circum- adjudication), clearly the fact-finder “could scribe post-conviction habeas procedure in have applicant guilty beyond found the precisely way.46 As none of the above Any subsequent reasonable doubt.”42 statutory exceptions provides an appropri- proceeding purposes deciding ate vehicle to review the merits of the proceed adjudication whether to does applicant’s grant claim—much less relief— not involve a revisitation the initial under Section this Court has no choice guilt-substantiation determination.43 The but to application. dismiss the instant applicant has show that failed to “no ra- ALCALA, J., tional filed jury guilty dissenting opinion could have found him J., COCHRAN, joined. which beyond a doubt” upon reasonable based originally whatever proffered evidence was JOHNSON, J., dissented. to substantiate nor plea; does he iden- MEYERS, J., did not participate. tify any new evidence that would somehow ALCALA, J., a dissenting opinion filed new, cast that original in a evidence over- J., in which COCHRAN, joins. whelmingly exculpatory light.44 Under these circumstances the has not I respectfully dissent from the Court’s satisfied the exception opinion the abuse of dismissing the second application (a) subsequent application adjudication Sec. 5 If a for a an original on the charge.”). writ of filing is filled after an Manuel Cf. 1999) (since 1987, may (Tex.Crim.App. initial a court consider grant relief provided merits based on the that defendants may
subsequent application
immediately
applica-
appeal
proceedings
unless the
they
placed
which
adjudica-
were
on
establishing
contains sufficient facts
deferred
*8
probation
place,
tion
they
in the first
that:
sufficiency
must now raise
of the
issues
of the
evidence to
in
substantiate
that immedi-
(3) by
convincing
clear and
evidence but
any
appeal,
appeal
ate
not in
later
of the
for a violation of the United States Constitu-
adjudication).
proceed
decision to
juror
tion no rational
would have answered
in the
one
state’s favor
or more of the
4(a)(2).
§
44. Article 11.07
special issues that were submitted to the
jury
applicant’s
in the
trial under Article
State,
(Tex.
45.
v.
Coit
37.071 or 37.0711.
Davis,
1991)
Crim.App.
(quoting
Ex
(Tex.Crim.App.1967)).
5(a).
41.
§
Article 42.12
Davis,
Rushing
H3
204,
judgment
(1996).
sentence or
of the court into
117 S.Ct.
114 consequences that may be would lead to absurd rights constitutional id. Because have intend possibly could not by Legislature a defendant’s action waived or forfeited ed, permit then review of inaction, asserting a constitu- which would a claim or factors). a distinct from extratextual right procedurally tional is asserting that the trial court lacked claim First, language of the statute plain therefore, and, reliance on jurisdiction, habe- expressly applies post-conviction to a applies rules of precedent felony filed after a final con- as right is mis- default to a constitutional art. viction. See Tex.Code CRIM Proc. placed. 3(a). (“After 11.07, final conviction Legislature Did Not Intend to The C. case, felony the writ must be made Procedurally Default Jurisdictional Ap- returnable to the Court of Criminal Claims Texas.”). Austin, Here, of Texas at peals however, no final conviction exists. “[A] reasons, I conclude that
For two
considered final if
judgment will never be
require
a
Legislature did not intend
subject-matter
jurisdic-
the court lacked
raising
jurisdictional
a
Kazi, 12
tion.” Dubai Petroleum
v.Co.
procedural requirements
meet the
claim to
(Tex.2000).
71,
It
76
is well-settled
for this
review. See
qualify
Court’s
4(a).
by
action
a court
legal
law that
I
Proc. Tex.Code CRIM.
Horan,
(1)
jurisdiction
nullity.
is a
See
9 Tex.
by
examining
reach this conclusion
319; Seidel,
at
at
39 S.W.3d
225. This
language of the statute to determine
plain
(2)
legal
recognized
exam Court has
that no
conse-
the intent of the
quences can result from a court with no
ining
history
the common-law
nullity
power
to act and that an action is a
and the context which
statute was
State,
yet
not
v.
even when a court has
declared
Boykin
enacted. See
(courts
Hoang,
at
(Tex.Crim.App.1991)
nullity.
to be a
See
872 S.W.2d
785-86
judgments
that are milli-
language
(holding
unless that
apply plain
should
however,
habeas).
historically
judgment,
Although
on
Such a
is
our case law
has dis
challenging
nullity
inception;
cussed habeas claims as
"void"
from its
it is "void”
judgments,
generic
term "void” has differ
only
subject
insofar as it is
to collateral re
depending
ap
implications
on whether it
826; Ross,
ent
Young,
view. See
418 S.W.2d
challenges
non-juris
plies
jurisdictional
Supreme
at 223. As the
Court
522 S.W.2d
hand,
challenges. On the one
dictional
observed,
say
"This is not to
that a state
has
wholly lacking
judgment
a court
rendered
judgment resting
criminal
on a constitutional
discussed,
and,
“an
is "void”
as
purposes,”
for the
error is void for all
nullity
inception.” Hoang
absolute
from [its]
purposes
affording
confined on
a defendant
State,
(Tex.Crim.App.
872 S.W.2d
judgment
opportunity
such a
the fullest
1993);
Gallagher v.
see also
690 S.W.2d
Noia,
judicial
Fay
plenary
review.
1985).
(Tex.Crim.App.
589 n.
On
391, 424,
U.S.
83 S.Ct.
H5 inception presume Legislature not bar successive that ty from do the understands under “even prosecutions jeopardy applicable legal concepts double it when enacts judgments not though State, such have been for- legislation. See Miller v. by 257, of
mally
competent
(in
vacated
a court
260 (Tex.Crim.App.2000)
constru-
jurisdiction”);
see
v. Hodg-
statute,
also Chambers
ing a
“it
presumed
is
that
the
104,
(1859)
es,
(appellate
110
affir-
23 Tex.
legislature
of
is aware
case law affecting or
juris-
of
judgment
statute”).
mance
rendered
relating
Legislature,
to the
The
nullity “by
itself
a
diction would
be
reason
therefore, understood that
power
a court’s
nullity
judgment appealed
of the
of the
to act could never be
aby
party’s
affected
from”).4 Because an action that is a nulli-
consent, action,
inaction,
therefore,
and,
or
ty
a court
always
is
that —even when
could not have
intended for
yet
nullity
not
it
a
declared
to be
—the
default to
preclude
claim
that a
alleging
plain
of
language
pre-
the statute that
trial
jurisdiction.
court
lacked
A court
requirements
subsequent
scribes the
lacks
may
acquire
not
writs that
follow a “final conviction” is
by a
action
by
defendant’s
or inaction or
to
inapplicable
this ease.5
subsequent
judicial action. See Marin v.
State,
275,
Second,
851
279 (Tex.Crim.App.
to
S.W.2d
it would be absurd
conclude
1993)
that,
statute,
(jurisdiction
optional
enacting
Legisla-
parties
the
the
with
consent);
by
and cannot
permit
Wynns
ture intended
the continued in-
be waived
Underwood,
48,
(1846) (“[C]on-
v.
person
carceration of a
the basis of a
1 Tex.
49
on
sent
...
give jurisdiction.”).
null conviction that was rendered
cannot
Im-
power
plementation
court
no
case.
requirement
with
over the
We
of this
is not
may
expansion
4. This Court has held that a defendant
address the
of
other than
writs
decades,
direct-appeal jurisdictional
jurisdictional
challenge
waive a
claims.
In recent
validity
recognized
non-jurisdic-
to the
of the
of an
transfer
action
courts have
certain
habeas,
juvenile
Rushing
cognizable
from
to district court.
v.
tional
name-
claims as
on
State,
283,
(Tex.Crim.App.
ly,
85
286
"denials of fundamental or constitutional
2002).
Shields,
Rushing
rights.”
the
parte
In
Court rea-
Ex
Legislature
(Tex.Crim.App.1976);
soned that
the
could limit the
675
see
Preiser v.
also
right
Rodriguez,
of
because it
appeal
could withhold that
411 U.S.
S.Ct.
("[T]he
(1973)
right entirely.
right
(explaining
Id. at 285
optional
Marin,
at 279.
satisfied one of the
851 S.W.2d
relief because he has
gants’ wishes.”
chal-
(e.g., failure to
Neither his inaction
exceptions. The
statutorily enumerated
(e.g.,
action
chal-
lenge jurisdiction) nor
a court to consider
permits
statute
grounds)
on other
lenging the conviction
application if it
subsequent
merits of a
can
id. Neither
consequence.
See
that, “by pre-
a
establishing
contains facts
nullity
is a
into
judgment
a
transform
evidence,
but for a viola-
ponderance
Chambers,
Tex. at
one that is not. See
no
tion of the United States Constitution
104;
Because
Hoang,
The record shows A defendant is “denied due proceedings. this jurisdiction trial court lacked over Although this is a of law and due course of the law process cause.6 writ, nullity lack judgment that is a for juris- court” acts without when the district collaterally jurisdiction “may always be Birdwell, parte diction. Ex Seidel, (citing attacked.” 89 S.W.3d at also (Tex.Crim.App.1999); see U.S. 698). I, therefore, Hoang, 872 S.W.2d at Const, XIV, 1;§ Frank v. Man- amend. application as one would construe this gum, 237 U.S. S.Ct. seeking a writ of habeas under (1915) (due requires process L.Ed. 969 law or the amendment of permit common be prosecution that a criminal “before ground to include this and this jurisdiction”). But for competent court of grant relief. namely, constitutional violation— Alternatively, Applicant’s II. Claim proceedings by of criminal commencement Requirements Subsequent Meets for a court without trial —the Writs court, factfinder, as could not have found Blue, applicant guilty. See I, alternatively, conclude even if 161;7 ju- parte Knipp, see also Ex subsequent-writ applies statute case, pe- jurisdiction over this applicant’s community-supervision After court that has no (1) complaint in the capias which is the basis of his expired, had the court issued a riod Sandoval, arrest; (2) present application. See Ex allega- applicant’s found the for true; 65-66 167 Tex.Crim. adjudicate tions the State’s motion (1958) (3) (4) (granting "there was no relief because applicant; convicted sentenced against pending relator in [that criminal case years prison. him five See Tex.Code Crim support 5(h) was en- when the order (providing court] that trial Proc. art. tered and that court was without community-su- court retains over law). support to enter the order” under proceedings may adjudicate pervision community-supervision period after the "juror” adjudi- expiration refers to a as the expired "if before the statute guilt. Crim Proc. attorney representing the state files a motion cator of See Tex.Code Here, continue, 11.07, 4(a). revoke, applicant’s revocation of modify community community deferred-adjudication supervi- capias supervision and a is issued for the defendant.”). bywas the court. How- Applicant, there- sion and conviction arrest of the ever, fore, juror could have found him prison no rational is in on a rendered
H7 *13 (Tex.Crim.App.2007) (permitting applicant’s subsequent applica- review of raising double-jeopardy constitutional
claim under Texas Code of Criminal Proce- 11.07, 4(a)(2)).
dure Article would, I alternatively, hold that a habeas applicant alleging, writ, in a subsequent
that the trial court lacked 4(a)(2)
render a satisfies Section if he preponderance demonstrates
the evidence that no rational factfinder
could find facts sufficient to support the trial court had over the proceedings. See Tex.Code Crim. PROC. 11.07, §
art. applicant Because this, has done he is entitled to relief. In re STATE of Texas ex rel.
David P. WEEKS. See also 392 S.W.3d 2012 WL AP-76,953, AP-76,954. Nos.
Court of Criminal Appeals of Texas.
Jan.
guilty
plea-bargain
under the terms of his
exception
retarded would meet this
"if
agreement
agreement, provided
because the
simple
reason
finding
that he
would receive no
un-
[death-penalty] special issues would not be
adjudication.
der his deferred
respect,
In this
jurors
submitted to the
place.”
the first
Blue,
present
analogous
case
to Ex
words, given
In other
the absolute constitu-