Ex parte Carr

• Decision Date: 17 July 1974
• Docket Number: No. 48800,48800
• Citation: 511 S.W.2d 523
• Parties: Ex parte Millard D. CARR.
• Court: Texas Court of Criminal Appeals

Page 523

511 S.W.2d 523

Ex parte Millard D. CARR.

No. 48800.

Court of Criminal Appeals of Texas.

July 17, 1974.

Branch T. Archer, Jr., Amarillo, for appellant.

Tom Curtis, Dist. Atty., David Kiker, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is a habeas corpus proceeding in which the petitioner seeks relief from confinement under a ten-year sentence for the offense of rape. Carr v. State, 475 S.W.2d 755 (Tex.Cr.App.1972). The trial court filed findings of fact and conclusions of law recommending that the writ be denied.

In his petition, the petitioner alleges that his testimony and that of two other witnesses will establish his innocence and render his confinement illegal. The two witnesses named in the petition did not testify at his trial. The trial court refused to hold a hearing to record the testimony of these witnesses, concluding that the petitioner had, by his own actions, abused the habeas corpus process and waived his contentions. In order to determine whether the court's findings and conclusions have support, we must look to the transcript of a hearing held by the same court on another writ filed by petitioner. ¹

That proceeding was held on December 27, 1972. The transcript reveals that the petitioner was asked if he had grounds other than those raised in the petition then being heard for alleging that he was illegally restrained of his liberty. He answered that he did, but repeatedly refused to disclose the nature of them. ² After giving answers that ranged from evasion to flat refusals to reveal the other grounds, the appellant was allowed to collect his 'papers' by the court during a short recess. However, at the conclusion of the recess, petitioner again refused to disclose his other contentions.

At the close of the December 27, 1972, hearing the court denied the relief petitioner sought. The present contention appears to be one of those which the petitioner refused to advance or discuss at the earlier hearing. As noted, the petition was denied without hearing on the basis that petitioner was abusing the writ.

The proceeding presents a novel question since this Court has rarely dealt with successive applications and the problem of the writ's abuse. However, the Supreme Court of the United States and the lower federal courts have frequently dealt with the question of abuse of federal habeas corpus processes. See Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) and cases there cited; Fulford v. Smith, 432 F.2d 1225 (5th Cir. 1970); and Monnich v. Kropp, 408 F.2d 356 (6th Cir. 1969).

The opinion in Sanders v. United States, supra, in discussing successive applications as an abuse, states:

'. . . Thus, for example, if a prisoner diliberately withholds one of two grounds for federal collateral relief at the time of filing his first application in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if . . . the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay.' Sanders v. United States, supra, at 373 U.S. 18, 83 S.Ct. 1078.

In Fulford v. Smith, supra, we find the abuse of the writ condemned in this language:

'The advancing of grounds for habeas relief in a one-at-a-time fashion, when the evidence is available which would allow all grounds to be heard and disposed of in one proceeding, is an intolerable abuse of the Great Writ.' Fulford v. Smith, 432 F.2d, supra at p. 1227.

Of course, these decisions relate to matters arising in federal habeas corpus proceedings. However, the reasoning is equally applicable to the situation before us. A petitioner seeking habeas corpus is not entitled to burden the courts with his process out of willfulness and spite. If he has grounds which would justify the granting of the relief he seeks, he should present them with dispatch for determination, rather than doling them out one-by-one in repeated attempts to have both the benefits of relief and the fleeting pleasures of harassing those who confine him.

A proper respect for the concept of justice it is the office of the Great Writ to protect, requires that petitions be filed in earnest and that all contentions...