Ex parte Torres

• Decision Date: 16 April 1997
• Docket Number: 72,359,Nos. 72,358,s. 72,358
• Parties: Ex parte Raymond TORRES. . En Banc
• Court: Texas Court of Criminal Appeals

Page 469

943 S.W.2d 469

Ex parte Raymond TORRES.

Nos. 72,358, 72,359.

Court of Criminal Appeals of Texas.

En Banc.

April 16, 1997.

Brian W. Wice, Houston, for appellant.

Mike Cook, Asst. District Attorney, Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

KELLER, Judge.

Applicant pleaded guilty without the benefit of a plea bargain to charges of aggravated kidnapping and aggravated sexual assault. The trial court assessed punishment, enhanced by two prior convictions, at fifty years confinement in each case, to run consecutively. No appeal was taken at that time. In 1993, applicant filed applications for post-conviction relief in these causes pursuant to the provisions of Article 11.07, ¹ alleging among other things, that he was denied his right to appeal. This Court granted applicant out-of-time appeals in both convictions, noting that "[a]ll other requested relief is denied without prejudice." Ex parte Torres, Nos. 71,680 & 71,681 (Tex.Cr.App. delivered May 26, 1993). The Court of Appeals reformed the judgments to delete the cumulation orders, but otherwise affirmed the convictions. Torres v. State, Nos. 14-93-00603-CR & 14-93-00604-CR, 1995 WL 144547 (Tex.App.--Houston [14th Dist.], delivered March 30, 1995, no pets.).

In September 1995, applicant filed subsequent applications for habeas relief in the trial court challenging these same convictions for substantially the same reasons alleged in his prior writs. ² The trial court found that these subsequent applications were filed after final disposition of Applicant's previously filed applications challenging these convictions. The trial court further found that the applications do not contain sufficient specific facts establishing that the claims have not been and could not have been presented in the previous applications; or that, by a preponderance of the evidence, no rational juror could have found applicant guilty beyond a reasonable doubt (emphasis given by trial court). Therefore, the trial court concluded that applicant was barred under the provisions of Article 11.07, Section 4(a), V.A.C.C.P., from having this Court consider the merits of the instant applications. The trial court also concluded that Applicant's claims were barred because they had been raised and rejected on direct appeal. ³ We filed and set these applications for submission to determine if Sec. 4(a) bars this Court from considering the merits of these subsequent applications and to determine whether applicant's claims are barred because they were raised and rejected on direct appeal. We hold that there is no bar to addressing the merits of applicant's claims, and we remand those claims for further proceedings.

1. § 4(a)

Article 11.07 § 4(a) provides:

Sec. 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.

(Emphasis added). For a claim to be barred under § 4(a), it must be filed after the "final disposition" of an initial application. The trial court apparently assumed that a final disposition occurred when we granted the out-of-time appeal and "denied" all other relief without prejudice. We decide today, however, that a "final disposition," as contemplated by § 4(a), did not occur in the present case.

Before addressing the meaning of the phrase "final disposition," contained in § 4(a), we must accurately characterize the nature of the disposition in the present case. In determining the nature of a disposition, we look beyond mere labels to the substance of the action taken. State v. Young, 810 S.W.2d 221, 222-223 (Tex.Crim.App.1991) (appealability of a trial court order); State v. Moreno, 807 S.W.2d 327, 332-333 (Tex.Crim.App.1991)(same). See also Ex Parte Tarver, 725 S.W.2d 195, 198-199 (Tex.Crim.App.1986) (whether probation revocation is administrative or judicial); Ex Parte Gray, 649 S.W.2d 640, 642 (Tex.Crim.App.1983)(whether relief sought is mandamus or prohibition). Although we stated that the other claims were "denied" without prejudice, the true effect of our disposition was to dismiss those claims. In our writ jurisprudence, a "denial" signifies that we addressed and rejected the merits of a particular claim while a "dismissal" means that we declined to consider the claim for reasons unrelated to the claim's merits. By granting relief on one claim and "denying" applicant's remaining claims "without prejudice," we indicated that we were not addressing the merits of those remaining claims. Moreover, because granting an out-of-time appeal restores the pendency of the direct appeal, any remaining substantive claims would become premature, and hence, subject to dismissal. See Ex Parte Brown, 662 S.W.2d 3, 4 (Tex.Crim.App.1983)(no habeas jurisdiction while direct appeal is pending).

The question remains whether the kind of dismissal presented here constitutes a "final disposition" under § 4(a). To answer that question, we must first determine whether the statutory language is ambiguous. If the language of a statute is not ambiguous, we must give effect to the plain meaning of its words unless doing so would lead to absurd results. Boykin v. State, 818 S.W.2d 782, 785-786 & 786 n. 4 (Tex.Crim.App.1991). When the language of a statute is ambiguous, we may look to extratextual factors for guidance in determining the statute's meaning. Id.

The phrase "final disposition" appears in numerous statutes, both criminal and civil, but is rarely defined. The phrase is not defined in Article 11.07 and there is no global definition of the term in the Code of Criminal Procedure. The definition of or plain usage of the phrase "final disposition" appears to vary from one section of the Code to the next. For the narrow purpose of determining when probation fees are due, the relevant section defines "final disposition" as the placement of a defendant on probation. Article 42.12, § 19(d). In another section, a witness is considered to have disobeyed a subpoena if he does not attend court on any day "before the final disposition or continuance of a particular case." Article 24.06(1). This language appears to contemplate that a final disposition of the case includes any disposition, whether it is a dismissal without prejudice, a mistrial, or an adjudication on the merits. By contrast, the Interstate Agreement on Detainers Act appears to contemplate a "final disposition" as being either an adjudication on the merits or a dismissal of the pending charges with prejudice. Article 51.14, Article III(d). ⁴ Hence, the phrase "final disposition" can have various meanings, ranging from situations in which a mere dismissal without prejudice will suffice to situations that require an adjudication on the merits. Unlike the statutes discussed above, we find no contextual clues in the language of Article 11.07 concerning the precise meaning of this phrase in § 4(a). We must therefore turn to extratextual factors to determine the statute's meaning.

The legislature has given some guidance concerning the extratextual factors we may examine in construing statutes. We may consider, among other matters, the

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction;

(6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provision.

Tex. Gov't.Code, § 311.023. ⁵

The legislative history is instructive. Senator Montford, the author of the bill that added § 4(a) to Article 11.07, stated on the Senate floor that the provision "adopts the abuse of the writ doctrine currently used in federal practice which limits an inmate to a one time application for writ of habeas corpus except, and I want to emphasize except, in exceptional circumstances." S.B. 440, April 19, 1995, Tape 1, Side 2 (emphasis added). ⁶ In federal practice, a successive petition may be dismissed if:

(1) the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or,

(2) if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

Rule 9(b) governing 28 U.S.C. § 2254; Rule 9(b) governing 28 U.S.C. § 2255 (emphasis added and numbering inserted). See also 28 U.S.C. § 2244(a) & (b). An "abuse of the writ" under situation (2) occurs when the petitioner fails to show "cause and prejudice" for not raising the new claim in a prior petition. McCleskey v. Zant, 499 U.S. 467, 493-495, 111 S.Ct. 1454, 1469-71, 113 L.Ed.2d 517 (1991). While serving the same basic purpose--finality--the two situations above involve different considerations. McCleskey v. Zant, 890 F.2d 342, 346 (11th Cir.1989), affirmed, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The first situation is primarily designed to prevent a defendant from attempting to achieve a different outcome with a different judge on a claim already resolved against him while the second situation is designed to prevent harassment and delay. Id. An examination of federal abuse of the writ doctrine...