IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 35,065-04

 

EX PARTE RICKY EUGENE KERR, Applicant





ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM BEXAR COUNTY


Keller, P.J., filed a dissenting opinion joined by Keasler, J..

DISSENTING OPINION



The Court concludes that applicant's first application for writ of habeas corpus was not in fact a true application for writ of habeas corpus. Because I disagree with this conclusion, I must dissent.

We have construed the non-capital habeas statute, Article 11.07, on several occasions. Before the enactment of Article 11.071 in 1995, Article 11.07 covered both death penalty and non-death penalty cases. Within the same bill that enacted Article 11.071, the Legislature added 1 and 4 to Article 11.07. (1) The death penalty and non-death penalty amendments were discussed together by their sponsor in committee. (2) Given the common history of the death penalty and non-death penalty provisions, they should be construed the same, except where differences in the language of the provisions dictate otherwise.

Applicant's first application was styled an "application for writ of habeas corpus" under Texas Code of Criminal Procedure, Article 11.071. The attorney who drafted that application was appointed in accordance with the provisions of Article 11.071. (3) The Court contends that the application nevertheless does not constitute a true writ application under Article 11.071 because "it did not attack applicant's capital murder conviction or death sentence. It raised no constitutional or jurisdictional claims concerning the fundamental fairness of the underlying trial or the accuracy of the verdict." (4) The Court asserts that this type of claim fails to satisfy Article 11.071, 1's requirement that the application seek "relief from a judgment imposing a penalty of death." (5)

However, we have construed parallel language in Article 11.07 in a manner contrary to this conclusion. Article 11.07, 1 contains language virtually identical to the Article 11.071, 1 language referenced by the Court, to wit: "This article establishes the procedures for an application for writ of habeas corpus in which the applicant seeks relief from a...judgment...." (6) The two provisions differ only in the type of judgment referenced, with Article 11.071, 1 referring to "a judgment imposing a penalty of death" and Article 11.07, 1 referring to "a felony judgment imposing a penalty other than death." Yet, in the Article 11.07 context, we have recognized as cognizable claims that do not attack the underlying trial or the verdict, including attacks upon parole revocation procedures (7) and requests for out-of-time appeals. (8) In Ex parte Whiteside, we stated that the wording in Article 11.07, 1 was simply meant to "indicate that, after the enactment of Article 11.071, Article 11.07 would apply only to non-capital habeas applications, as distinguished from capital habeas applications." (9) In so concluding, we rejected the contention in Judge Womack's concurring opinion that after 1995, Article 11.07 no longer applied to claims that did not seek relief from a judgment. (10) Under the same reasoning, the Article 11.071, 1 "seeks relief from a judgment" language was not meant to narrow the class of claims cognizable in the death penalty habeas setting, but was instead simply meant to designate Article 11.071 as the provision applicable to death penalty cases. (11) It follows that an applicant's claims need not attack the trial, verdict, or sentence to be cognizable in a capital habeas corpus setting.

The Court extends its holding to Article 11.07 applications, as logically it must. But if the provisions of Article 11.07 do not apply to pleadings that fail to "seek relief from a judgment," then Article 11.07 would, presumably, not be available for claims involving such matters as parole revocations, out-of-time appeals, and time credits. Aside from the fact that we have held that these claims are cognizable under Article 11.07, this interpretation leaves us with the unfortunate result that Article 11.07 does not apply to a great number of the habeas applications filed in this Court. I do not know by what method claimants in such instances will now seek relief, but even if there is a vehicle outside of Article 11.07, the claims will not be subject to the Article 11.07 subsequent application restrictions, and one of the primary aims of that legislation will be defeated.

Moreover, the Legislature has indicated that time credit claims, at least, are cognizable under Article 11.07. Section 501.0081 of the Government Code provides that inmates may not raise a time-served credit error in an application "under Article 11.07" unless certain requirements have been met. With the enactment of 501.0081 in 1999, the Legislature put to rest any contention that Article 11.07 applies only to claims that seek relief from a judgment.

The two habeas corpus statutes do differ in one significant respect: Article 11.071 does not contain the "challenging the conviction" language that limits subsequent applications. While Article 11.07 4 bars a subsequent application for writ of habeas corpus if it is filed "after final disposition of an initial application challenging the same conviction," Article 11.071 5 bars a subsequent application if it is filed "after filing an initial application." (12) In Evans, we found the presence of the "challenging the same conviction" language to be controlling in our determination that certain types of claims made in an initial application would not bar a subsequent application. (13) In Whiteside, we found the absence of that language with reference to subsequent applications to mean that the "challenging the same conviction" limitation did not apply to subsequent applications. (14) As a result, in non-death penalty cases, once an initial application challenging the conviction has been finally disposed, all subsequent applications are barred (unless they meet one of the enumerated exceptions) regardless of whether the subsequent application constitutes a challenge to the conviction. (15) We said in Whiteside that the fact that the Legislature placed the "challenging the conviction" limitation in one part of the statute but not another indicated the Legislature's intent that the limitation not apply in the part of the statute in which it is absent. (16) The same logic applies to Article 11.071. Given that Articles 11.071 and the revisions to Article 11.07 were adopted together in the same bill and contain some parallel language, we should assume that the differences in language are material and intended by the Legislature. Because the "challenging the conviction" language is wholly absent from Article 11.071, 5, the logical conclusion is that, in death penalty cases, any initial application, regardless of whether it attacks the conviction, triggers the 5 bar for all subsequent applications.

The Court's interpretation of Article 11.07 and Article 11.071 effectively disavows a number of cases, new and old, dealing with an applicant's ability to raise claims under Article 11.07, including Evans, Whiteside, Woodward, and McPherson. The result in this case may be appealing, but in the long run, I cannot agree that it is correct.

For these reasons, I conclude that the present application is indeed a subsequent application subject to 5. Because applicant fails to meet the enumerated exceptions, (17) this application should be barred. I respectfully dissent.



KELLER, Presiding Judge



DATE FILED: JANUARY 2, 2002

PUBLISH



1. See Acts 1995, 74th Leg., ch. 319, 1 and 5.

2. See Ex Parte Torres, 943 S.W.2d 469, 473 n. 6 (Tex. Crim. App. 1997)(citing S.B. 440, Senate Committee on Criminal Justice, March, 14, 1995, Tape 1, Side 1).

3. See Article 11.071, 2(a) - (c).

4. Court's opinion at 2.

5. Court's opinion at 3 (quoting Article 11.071, 1).

6. See Article 11.07, 1; Compare with Article 11.071, 1.

7. Ex Parte Evans, 964 S.W.2d 643, 648 (Tex. Crim. App. 1998); Ex Parte Woodward, 619 S.W.2d 179 (Tex. Crim. App. 1981).

8. Ex Parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000).

9. Ex Parte Whiteside, 12 S.W.3d 819, 822 n. 1 (Tex. Crim. App. 2000).

10. Id.

11. See id.

12. See Article 11.07, 4(a)(emphasis added) and Article 11.07, 5(a). Both provisions contain exceptions which are not relevant to the present discussion.

13. 964 S.W.2d at 646-647.

14. 12 S.W.3d at 821.

15. Id.

16. Id.

17. See Article 11.071(a)(1) - (3).