Ex parte Banks
| Decision Date | 29 March 1989 |
| Docket Number | No. 69302,69302 |
| Citation | 769 S.W.2d 539 |
| Parties | Ex parte Delma BANKS, Jr. |
| Court | Texas Court of Criminal Appeals |
Clifton L. Holmes, Longview, for appellant.
Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S MOTION FOR REHEARING
This is a rehearing on application for writ of habeas corpus pursuant to the provisions of Art. 11.07, V.A.C.C.P. Applicant was convicted of the offense of capital murder and punishment was assessed at death. V.T.C.A. Penal Code, § 19.03. This Court affirmed applicant's conviction on direct appeal. Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1983), cert. denied, 464 U.S. 904, 104 S.Ct. 259, 78 L.Ed.2d 244 (1983). Applicant was granted a stay of execution on January 3, 1984, pending habeas corpus pursuant to Art. 11.07, supra. On February 29, 1984, this Court vacated the stay and denied the application for post-conviction relief. Applicant filed a second application for writ of habeas corpus that the trial court recommended be denied. We denied relief. Ex parte Banks, No. 69,032, delivered September 26, 1984. We granted applicant's motion for rehearing on this second application for habeas corpus on October 1, 1986.
First, we will withdraw the opinion issued on September 26, 1984, wherein applicant's first application for writ of habeas corpus was denied. Next, we will deny without a written opinion all grounds raised in the application for writ of habeas corpus except those concerning the alleged improper excusal of three prospective jurors, Dillon, Ervin and McAfee.
With regard to prospective jurors Dillon and Ervin, applicant contends that they were improperly excused under Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We have reviewed the testimony presented during the voir dire of these two jurors and find that they were properly excused. We therefore overrule applicant's contentions without further discussion.
With regard to the third prospective juror, McAfee, applicant contends that the trial court erred by permitting McAfee to be excused for cause because of bias under Art. 35.16, V.A.C.C.P. Although applicant's attorney objected to the grant of the State's challenge for cause at trial, applicant did not contest the exclusion on direct appeal. Thus, before we may consider the propriety of the trial court's actions, we must decide whether this issue may be raised for the first time by application for a writ of habeas corpus.
Traditionally, habeas corpus is available only to review jurisdictional defects, Ex parte Watson, 601 S.W.2d 350 (Tex.Cr.App.1980), or denials of fundamental or constitutional rights. Ex parte Clark, 597 S.W.2d 760 (Tex.Cr.App.1979). See also Ex parte Russell, 738 S.W.2d 644 (Tex.Cr.App.1987). The Great Writ should not be used to litigate matters which should have been raised on appeal.
The improper exclusion of a prospective juror on statutory grounds, as alleged in the instant case, does not involve jurisdictional defects nor are fundamental constitutional considerations invoked. As such, we will not consider such a claim for the first time in an application for writ of habeas corpus.
We must pause to distinguish this Court's opinion in Ex parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982). In that case, we ruled on original submission that "error rising to the level of constitutional error may be raised for the first time in a post-conviction application for writ of habeas corpus even though not raised in the direct appeal." Id. at 190. In our opinion issued on the State's motion for rehearing, we stated, id. at 193:
"Exclusion of venirepersons in violation of Adams and Witherspoon violates the Sixth and Fourteenth Amendments to the United States Constitution, and a death sentence so imposed cannot be carried out."
Thus, in Bravo, supra, the exclusion of the prospective jurors was in violation of the constitution since it did not meet the requirements of Adams, supra, or Witherspoon, supra. Because this error was of constitutional magnitude, we considered it on application for writ of habeas corpus even though the error was not raised on direct appeal.
In the case before us, applicant contends that prospective juror McAfee was excluded in violation of a procedural statute; no constitutional issues are raised. Thus, the holding in Bravo, supra, does not apply to the instant case.
The relief sought is denied.
Article I, § 12 of the Bill of Rights provides:
When any person is restrained in his liberty, the writ of habeas corpus is the remedy to be used. Article 11.01, V.A.C.C.P. To make it speedy and effectual the Legislature has enacted, inter alia, the several provisions of Chapter Eleven, Code of Criminal Procedure.
Generally, once preliminary procedures have been accomplished and the matter is ripe for decision, the habeas judge or court shall determine whether "legal cause be shown for the imprisonment or restraint," and if none, to discharge the applicant. Article 11.40. See Ex parte Coupland, 28 Tex. 387, at 390, 391 (1862). Chapter Eleven "applies to all cases of habeas corpus for the enlargement of persons illegally held in custody or in any manner restrained in their personal liberty[.]" Article 11.64. 1
Pursuant to Article 11.07, V.A.C.C.P., after final conviction in felony cases the writ will lie to challenge "legality of the applicant's confinement," resulting in a judgment of this Court either "remanding the petitioner [sic] to custody or ordering his release, as the law and facts may justify." Id., § 2(c) and (d), and § 3.
Today, without citing any precedent, the majority would have the Court pronounce: "The Great Writ should not be used to litigate matters which should have been raised on appeal." Slip opinion, at 2. 2 While admonitory in tone, that sounds like a restatement of a variously phrased common law axiom that a writ of habeas corpus cannot serve the office or purpose of, nor be a substitute for, an appeal. See generally 38 Tex.Jur.3d Extraordinary Writs § 34. As may be true of maxims perpetuated by rote, however, heedless repetition has obscured its intendment.
So far as discovered, a similar version first appeared in Ex parte Roya, 85 Tex.Cr.R. 626, 215 S.W. 322 (1919); albeit having decided the contention presented by applicant was "without merit," id., 215 S.W. at 322-323, Judge Lattimore, for himself and Judge Morrow, wound up with a sort of policy statement, viz:
Id., 215 S.W. at 323. Dissenting Presiding Judge Davidson pointed out the cause "brings in review the validity and constitutionality of the Zone Law...." Ibid. Let us examine those two cases and authorities cited.
Typically an applicant, convicted and ordered confined by judgment of a trial court, sued out a writ of habeas corpus claiming entitlement to release from custody or discharge from consequences of judgment. Upon denial of relief by a lower court an applicant usually appealed from that order, rather than file original application for habeas corpus in this Court. 3
Focusing on the latter because more in point than Ex parte McKay (seeking discharge from pretrial custody pursuant to capias after indictment, id., 190 S.W. at 638), we find in Ex parte White, supra, essential facts are that applicant was fourteen years old at time of trial (though that fact was not then shown); that upon arraignment for felony theft applicant expressed his desire to plead guilty; that the trial court properly admonished him and then instructed the jury to assess punishment; that applicant was sentenced to two years imprisonment and that while in the penitentiary he filed a writ of habeas corpus before the district judge, alleging lack of any proof to the jury, denial of two days to prepare for trial and, after sentence being pronounced, two days to make a motion for new trial and, finally, the court adjourned the day of sentencing thus denying his right to appeal. Upon hearing the writ the judge of the convicting court denied relief and remanded applicant to penitentiary authorities. Id., 98 S.W. at 851.
On appeal, as Judge Brooks saw the matter for the Court, applicant was "seeking relief by habeas corpus for irregularities in the trial that could have been availed of by appeal." Ibid. Given that posture of the matter, he analyzed the law governing the situation, viz:
"...
Ibid. 4 Accordingly, the judgment was affirmed.
In the cases cited in Ex parte White, id., 98 S.W. at 851, and in Ex parte McKay, id., 190 S.W. at 639, 640, the Court drew...
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