IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 73,927



EX PARTE ANTHONY CHARLES GRAVES, Applicant






ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM BRAZORIA COUNTY


Holcomb, J., delivered a dissenting opinion, in which Price and Johnson, JJ., joined.



DISSENTING OPINION





This case is not about cognizability. Rather, it is about whether Article 11.071 of the Texas Code of Criminal Procedure should be interpreted to afford a death row inmate one full and fair opportunity to present whatever claims he may have with the effective assistance of counsel. I conclude that it should be so interpreted.

When we interpret statutes, we are constitutionally required to effectuate the collective intent or purpose of the legislators who enacted the legislation. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cri.App. 1991). Where the language of a statute is unambiguous, we ordinarily give effect to that unambiguous meaning. Ibid. Where the language of a statute is ambiguous, we may consider extratextual factors in arriving at a reasonable interpretation. Ibid.

Article 11.071, by its explicit terms, limits a death row inmate to one application for a writ of habeas corpus, except in certain circumstances not relevant here. Art. 11.071, 5(a). Article 11.071 also guarantees that a death row inmate will have "competent counsel" to assist him in the preparation and presentation of his one application. Art. 11.071, 2(a). Does Article 11.071's ambiguous guarantee of "competent counsel" mean counsel likely to render, and rendering, effective assistance, or does it merely mean counsel who appears qualified at the time of appointment?

The only sensible interpretation of "competent counsel" is the traditional one: counsel reasonably likely to render, and rendering, effective assistance. This is so for several reasons. First, the guarantee of the effective assistance of counsel is what makes the one-application limitation comport with traditional notions of fair play and substantial justice. Second, nothing is more firmly established in our law than that the right to counsel means the right to the effective assistance of counsel. Accord, Evitts v. Lucey, 469 U.S. 387, 395-397 (1985); Iovenio v. Comm'r of Correction, 699 A.2d 1003, 1010 (Conn. 1997); Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994); Com. v. Albert, 561 A.2d 736, 738 (Pa. 1989); Jackson v. Weber, 623 N.W.2d 71, 74 (S.D. 2001). Article 11.071's guarantee of "competent counsel" would be a cruel joke if it did not comprehend the right to the effective assistance of counsel. The Legislature could not have intended a cruel joke.

Third, this interpretation of the "competent counsel" guarantee is consistent with what we know of the legislative history of Article 11.071. For example, Representative Gallego stated the following to the House of Representatives at the time the statute was adopted:

[W]e tell individuals [in this statute] that everything you can possibly raise the first time, we expect you to raise it initially, one bite of the apple, one shot.... What we're attempting to do here is to say, "Raise everything at one time." You get one bite of the apple. If you have to stick the kitchen sink in there, put it all in there, and we will go through those claims one at a time and make a decision. But none of this every-week-you-file-a-new-petition which is currently basically what happens.... The idea is this: You're going to be able to fund counsel in these instances, and we are going to give you one very well-represented run at a habeas corpus proceeding. And unless you meet a very fine-tuned exception, you're not going to be able to come back time after time after time.



Statement of Rep. Pete Gallego, May 18, 1995.

Finally, this interpretation of the "competent counsel" guarantee is consistent with this Court's recognition that "this entire statute [i.e., Article 11.071] is built upon the premise that a death row inmate does have one full and fair opportunity to present his [habeas] claims." Ex parte Kerr, No. 35,065-04, ___S.W.3d___, ___ (Tex.Crim.App. - Jan. 2, 2002) (emphasis in original). Certainly, a death row inmate's one opportunity to present his habeas claims is not "full and fair" if his counsel renders ineffective assistance.

The apparent intent of the Legislature in enacting Article 11.071 was to give death row inmates one full and fair opportunity, with the effective assistance of counsel, to present whatever claims they may have in an application for a writ of habeas corpus. If, because of the ineffective assistance of counsel, a death row inmate is cheated of his one full and fair opportunity to present his claims, then the apparent intent of the Legislature is thwarted. Therefore, in order to give effect to the apparent intent of the Legislature, a death row inmate must be given one additional opportunity (but no more than one) to demonstrate that his original habeas counsel rendered ineffective assistance in failing to assert one or more claims.

In my view, Article 11.071 affords applicant an opportunity to demonstrate that his original habeas counsel rendered ineffective assistance in failing to assert the claims in question. Because the majority holds otherwise, I respectfully dissent.



DELIVERED JANUARY 2, 2002

PUBLISH