Ex parte Whiteside, 73064

• Decision Date: 01 March 2000
• Docket Number: No. 73064,73064
• Citation: Ex parte Whiteside, 12 S.W.3d 819 (Tex. Crim. App. 2000)
• 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

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The State's Motion for Rehearing is granted, and our prior opinions in this case are withdrawn.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

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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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 unlawful confinement. His claim is that the Department of Criminal Justice is denying him credit for periods of time in 1988 and 1989 during which he was confined to jail under parole-revocation warrants issued by the Board of Pardons and Paroles.

The Court sees the issue as whether this is "a subsequent application for writ of habeas corpus" as that term is used in Code of Criminal Procedure article 11.07, section 4. I would first ask whether it should be considered as an application for writ of habeas corpus under Article 11.07 at all.

The same act that added Section 4 to Article 11.07¹ also added Section 1:

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.²

Before 1995, the statute simply required, "After final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas." By those terms, any request for habeas corpus relief in any felony case after final conviction fell under Article 11.07. Thus an application for relief from an action of the Board of Pardons and Paroles or the Department of Criminal Justice (at least arguably) was an Article 11.07 petition.

After 1995, the procedures of Article 11.07, Sections 3-7, apply only to an application in which the applicant seeks relief from a non-capital felony judgment. See id., Section 1. When Section 1 is kept in mind, most of the perceived difficulty with Section 4 disappears. Section 4 restricts a subsequent application that is filed after "an initial application challenging the same conviction." If we follow Section 1 and apply those restrictions only to applications that seek relief from a felony judgment, every (or almost every) subsequent application will follow "an initial application challenging the same conviction."

In other words, Section 1 and Section 4 should be construed in harmony. An initial application should be admitted to the post-conviction procedure only if (under Section 1) it "seeks relief from a felony judgment," and it will be an application that was "challenging the conviction" in the terms of Section 4. There is no reason to suppose, as the Court does today, that the Legislature wanted to create a class of post-conviction applications under Section 1 that were not subject to the restrictions of Section 4. Such a supposition is not called for by the language of the statute, and it is manifestly contrary to the intent of the Act of June 7, 1995, which was "to limit a convicted person to 'one bite at the apple'" under Article 11.07. Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Cr. App. 1997). The restrictions on subsequent applications which were imposed in Section 4 make it imperative that this Court carefully consider whether an application falls within Article 11.07. A decision that an application qualifies under Section 1 works severe consequences on subsequent applications.

We need not develop further the jurisprudence, which began in Ex parte Evans, 964 S.W.2d 643 (Tex. Cr. App. 1998), about subsequent applications that follow initial applications that did not challenge the conviction but were still cognizable under Article 11.07, Section 1. There should not be any such initial applications.

I am aware that before 1995 habeas corpus petitions were received under Article 11.07 to challenge parole revocation and other executive actions. It seems plain to me that Article 11.07 no longer applies to such challenges after the 1995 amendments. I am aware also of our decision in Ex parte Evans, which I joined, that the restrictions of Section 4 did not apply to a subsequent application when the initial application was for relief from a order revoking parole. I agree that Evans' first application did not trigger the restrictions of Section 4; in fact, his first challenge to a parole revocation did not belong under Article 11.07 at all.

This application is like Evans' initial application. Whiteside's application does not seek relief from a felony judgment. The applicant neither complains of the 1975 judgment nor seeks relief from it. He seeks relief from agencies in the executive branch which are not giving him credit for a period of confinement in 1988 and 1989 pursuant to an executive warrant for parole violation. The procedures of Article 11.07, including the restrictions of Section 4, are not applicable to this application.

I would dismiss this application without prejudice to an action under other provisions of the Constitution or laws of the state.

CONCURRING OPINION ON STATE'S MOTION FOR REHEARING

JOHNSON, J., delivered a concurring opinion on rehearing.

I join the majority opinion and write separately to express my concern over inequities that may occur merely as the result of the sequence of the filing of habeas corpus applications.

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