Opinion
No. WR-65,054-04
Delivered: April 7, 2008.
Filed: April 9, 2008. DO NOT PUBLISH
On Application for A Writ of Habeas Corpus, In Cause Number 6958-D, In the 411th District Court of Trinity County.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071 § 5. On June 27, 1985, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Hathorn v. State, 848 S.W.2d 101 (Tex.Crim.App. 1992). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on October 14, 1997. This Court denied applicant relief. Ex parte Hathorn, Nos. WR-65,054-01,-02, and-03 (Tex.Crim.App. Sept. 13, 2006). Applicant's first and second subsequent applications, respectively filed in the trial court on March 17, 2006, and June 9, 2006, were dismissed in the same order denying relief on applicant's initial application. Id. Applicant's third subsequent application was filed in the trial court on November 13, 2007. Applicant presents two allegations in the instant application. Specifically, he asserts that (1) the punishment questions given did not allow the jury to meaningfully consider his mitigating evidence (a claim that was also raised in his initial habeas application); and (2) the findings and conclusions entered by the trial court regarding the claims raised in his initial habeas application are void and without effect. We have reviewed the application and find that the allegations do not satisfy the requirements of Article 11.071 § 5. Accordingly, the application is dismissed as an abuse of the writ. Art. 11.071 § 5(c). IT IS SO ORDERED THIS THE 9TH DAY OF APRIL, 2008.
DISSENTING STATEMENT
The Court today dismisses the applicant's subsequent writ application brought pursuant to Article 11.071 of the Texas Code of Criminal Procedure. The issue is whether he has invoked a legal basis that was unavailable to him before. This is not this applicant's first subsequent writ application. The applicant filed two subsequent applications for writ of habeas corpus, in March and June of 2006. But at the time he filed those first two subsequent writ applications, we had not yet disposed of his initial writ application. On September 13, 2006, we denied his initial writ application and dismissed both of his subsequent writ applications. In his initial writ application, the applicant argued that the jury instructions at the punishment phase of trial were constitutionally insufficient under Penry v. Lynaugh. He did not reiterate his Penry claim in either of the subsequent writ applications that were filed in 2006, even though by that time the United States Supreme Court had issued a number of opinions that would have bolstered his claim. But there is no reason to have expected him to reiterate his Penry claim in those first two subsequent writ applications, since this Court had yet to dispose of his initial writ application at that time. Now the applicant has filed a third subsequent writ application. In it he contends that this Court should revisit his Penry claim in light of two Supreme Court cases decided since we denied his initial writ and dismissed his first two subsequent writs. I agree with the applicant that we should allow him to proceed with his third subsequent writ application, consistent with our holding in Ex parte Hood. Hood involved a jury nullification instruction issue that was raised on direct appeal, where we rejected it, and then omitted from the initial state writ application. After the United States Supreme Court issued its opinion in Penry v. Johnson (" Penry II"), Hood filed a first subsequent state writ application, but he failed to reiterate his jury nullification claim at that time. Among our many holdings in that complex opinion, we essentially held that, had Hood re-raised his jury nullification issue in this first subsequent writ application, we would have entertained it, since we regarded Penry II as a legal basis that had been unavailable to Hood before. But because he did not raise it in his first subsequent writ application, we concluded that we were barred from entertaining it under Article 11.071, Section 5 of the Code of Criminal Procedure in any later subsequent writ application. The applicant in this case raised his objection to the lack of a mitigation instruction for the first time in his initial state habeas application. We have said that such a claim is cognizable in a state habeas corpus application even if raised there for the first time. When we rejected the applicant's initial writ in September of 2006, his Penry claim became "unavailable by exhaustion" under the rubric of Hood. Because the applicant's initial writ was still pending when he filed his first two subsequent writs, he cannot have been expected to re-raise his Penry claim. He was entitled to assume that this Court would consider all Supreme Court case law extant at the time we disposed of his initial writ in resolving his Penry claim, including those cases decided in 2001 and 2004. In my view, then, the applicant's Penry claim became available once again in 2007 when the Supreme Court decided Abdul-Kabir and Brewer, the very cases the applicant now cites in his third subsequent writ application. We should allow him to develop his renewed Penry claim in the trial court under Article 11.071, Section 5. Because the Court will not, I dissent. The Court should at least file and set this cause to explain why it will not allow the applicant to proceed. Moreover, for the reasons given in Judge Holcomb's dissenting statement, if the Court is not going to allow the applicant to proceed with his third subsequent writ application under Hood, it should reconsider the applicant's initial writ application on its own initiative, as we recently did in Ex parte Moreno. Because the Court seems unwilling even to do this, I also dissent.I respectfully dissent. After reviewing the case record and this Court's own records, I conclude that we should reconsider, on our own motion, the Penry claim contained in applicant's initial application for habeas corpus relief and that we should file and set that claim for our review. In June 1985, applicant was tried before a Trinity County jury, found guilty of the capital murder of his father, and sentenced to death. In the course of the punishment stage of applicant's trial, he presented evidence that, as a child, he had suffered significant abuse (including frequent beatings), neglect, and emotional deprivation at the hands of his father and stepmother. Although applicant did not at that time request an extra-statutory special punishment issue regarding this mitigating evidence of a troubled childhood, he was certainly entitled to one, because such evidence was beyond the scope of the special punishment issues in effect at that time. See Ex parte Moreno, 245 S.W.3d 419 (Tex.Crim.App. 2008). In December 1987, before the decision in Penry was handed down, applicant filed his direct-appeal brief in this Court. In October 1992, we rejected all of his points of errors and upheld his conviction and sentence. Hathorn v. State, 848 S.W.2d 101 (Tex.Crim.App. 1992). In April 1997, applicant filed his initial application for habeas corpus relief. In that initial application, applicant, citing Penry, argued for the first time that the jury at his trial had lacked a vehicle with which to give effect to the mitigating evidence mentioned previously. In June 2006, the trial court (finally) forwarded applicant's initial application to this Court, and in September 2006, we denied relief on that application in a summary order. My review of this Court's own internal records reveals that we denied applicant's Penry claim on the ground that he could have, but did not, raise it on direct appeal. In Ex parte Moreno, supra, we recognized that, in extraordinary situations, we may reconsider, on our own initiative, a post-conviction application for habeas corpus relief. I conclude that this case presents one of those extraordinary situations and that we should reconsider applicant's initial application for habeas corpus relief. My conclusion is based on two simple facts. First, we were mistaken when we denied the Penry claim in applicant's initial application on the procedural ground that he could have asserted that claim on direct appeal. Although it is true that, in the usual case, habeas corpus may not be used to litigate claims that could have been asserted on direct appeal, Ex parte Townsend, 137 S.W.3d 79, 81 (Tex.Crim.App. 2004), we have held that an applicant whose trial occurred before the Penry decision was handed down may bring a Penry claim for the first time on habeas corpus, because the Penry decision constituted a substantial change in the law, Ex parte Goodman, 816 S.W.383, 385 n. 4 (Tex.Crim.App. 1994). We reaffirmed the principle underlying Goodman in Ex parte Boyd, 58 S.W.3d 134, 136 (Tex.Crim.App. 2001). We have also held that an applicant may obtain habeas corpus relief for unobjected-to Penry error if he can show egregious harm due to that error. Ex parte Smith, 185 S.W.3d 455, 463-464 (Tex.Crim.App. 2006), rev'd on other grounds, 127 S.Ct. 1686 (2007). Thus, when we denied the Penry claim in applicant's initial application on procedural grounds, we were ignoring our own precedents. Second, it appears that applicant's Penry claim has merit. As previously mentioned, applicant presented, at the punishment stage of his trial, evidence that he had had a seriously troubled childhood. Such evidence was beyond the scope of the special punishment issues in effect at the time of applicant's trial, and the trial court's (understandable) failure to give a Penry instruction to the jury arguably caused applicant egregious harm. For the foregoing reasons, I respectfully dissent.
Penry v. Lynaugh, 492 U.S. 302 (1989).