Ex parte Whiteside, 73064

• Decision Date: 01 March 2000
• Docket Number: No. 73064,73064
• Citation: 12 S.W.3d 819
• Parties: (Tex.Crim.App. 2000) EX PARTE LARRY MICHAEL WHITESIDE
• Court: Texas Court of Criminal Appeals

Page 819

12 S.W.3d 819 (Tex.Crim.App. 2000) EX PARTE LARRY MICHAEL WHITESIDE No. 73064 COURT OF CRIMINAL APPEALS OF TEXAS,
En Banc. MARCH 1, 2000

HABEAS CORPUS APPLICATION

FROM HARRIS COUNTY

Page 820

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

KELLER, J., delivered the opinion of the Court on rehearing in which McCORMICK, P.J., and HOLLAND, JOHNSON, and KEASLER, J.J., joined.

The State's Motion for Rehearing is granted, and our prior opinions in this case are withdrawn.

Applicant filed an initial 11.07 application in 1980, which "challenged the conviction," as that phrase has been interpreted in Ex Parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998), and subsequent applications

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in 1995 and 1997. We dismissed the 1995 application pursuant to 4. We denied relief on the 1997 application, which concerned a time-credit issue that arose after the 1995 application. Applicant could not have raised his current claim in his initial 1980 application, but he could have raised it in his 1995 or 1997 applications.

In Evans, the applicant filed a first application raising various claims concerning a parole revocation hearing. 964 S.W.2d at 645. Later, he filed a second application seeking credit for time spent in custody both prior to trial and pursuant to a blue warrant. Id. We held that 4 did not bar the second application because of the nature of the first application: the first application did not "challenge the conviction," and "the procedural bar of 4 is limited to instances in which the initial application raises claims regarding the validity of the prosecution or the judgment of guilt." Id. at 646-647. (Emphasis added).

This case presents exactly that situation: "an instance in which the initial application raise[d] claims regarding the validity of the prosecution or the judgment of guilt." The question we confront is whether applicant may nevertheless avoid the 4 bar because of the nature of his subsequent application, i.e., because it does not "challenge the conviction." We hold that he cannot.

The starting point in any statutory construction analysis is the plain language of the statute in question. Brown v. State, 943 S.W.2d 35, 36 (Tex. Crim. App. 1997). When a statute is clear and unambiguous, we should apply the plain meaning of its words, unless that plain meaning leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We may resort to extratextual factors only when the statutory language is ambiguous or the clear language leads to absurd results. Id. Article 11.07, 4, provides in relevant part:

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).

Under the plain language of the statute, once an applicant files an application challenging the conviction, all subsequent applications regarding the same conviction must meet one of the two conditions set forth in 4(a)(1) & (2). The Legislature modified "initial application" with the phrase "challenging the same conviction" but did not so modify "subsequent application." The lack of any language modifying "subsequent application" plainly indicates the Legislature's intent that "subsequent applications" include all subsequent habeas corpus applications regarding the same conviction, rather than only those that "challenge" the conviction.

Nor does application of the plain language lead to absurd results. We have previously determined that 4 was intended "to limit a convicted person to 'one bite at the apple.'" Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997). Interpreting "subsequent applications" under 4 to include all applications for writs of habeas corpus regarding the same conviction would most effectively achieve the Legislature's objective.

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This application is dismissed pursuant to Article 11.07 4.¹

PRICE, J., concurred in the result. WOMACK, J., delivered a concurring opinion. JOHNSON,J., delivered a concurring opinion.

MEYERS, J., delivered a dissenting opinion. MANSFIELD, J., delivered a dissenting opinion. WOMACK, J., filed a concurring opinion.

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Notes:

1. Judge Womack would dismiss the application on the ground that applicant's claim is not cognizable under Article 11.07. Judge Womack contends that the Legislature narrowed the class of claims cognizable on a post-conviction writ when it added 1 in 1995: "This article establishes the procedures for an application for writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death" (emphasis added). We disagree. Prior to the revision of the language in 11.07, both capital and non-capital habeas applications were addressed under that statute. That leads us to believe that the reason the language of Article 11.07 was amended was 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.

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WOMACK, J., filed a concurring opinion.

The Court's opinion on rehearing does not mention the allegations in the application. The applicant was convicted of burglary in 1975. He makes no allegation that the judgment in that case subjects him to...