Opinion
WR-75,864-05
10-25-2023
EX PARTE BARTHOLOMEW ANTONIO GUZMAN,Applicant
On Application for Writ of Habeas Corpus In Cause No. 1053411-B in the 262nd District Court Harris County
Yeary, J., filed a concurring opinion.
Applicant was convicted in 2006 of the offense of intentionally or knowingly causing serious bodily injury to a child, and his punishment was assessed by the jury at 90 years' confinement in the penitentiary. Tex. Penal Code § 22.04(a)(1), (e); id. § 12.32(a). He filed an initial post-conviction application for writ of habeas corpus on August 17, 2009. That initial writ application was not finally disposed of by this Court until February 1, 2017, when we denied relief.
On October 6, 2022, Applicant filed a subsequent post-conviction application for writ of habeas corpus, which is the pleading before us today. The Court denies relief on the merits of Applicant's subsequent claims, and I concur in that result. I write further to address an argument by the State that the proper disposition of the case is to dismiss the subsequent writ application under Section 4 of Article 11.07, which limits the ability of the courts to consider the merits or to grant relief based upon claims brought in subsequent writ applications. Tex. Code Crim. Pro. art. 11.07 § 4.
The State claims that Applicant could have brought the additional claims he now raises in an amendment to his initial writ application, during the lengthy period that his initial writ application was pending final disposition. Even if he could not have raised his new claims at the time he filed his initial writ application in 2009, the State contends he could have formulated his arguments and presented them in an amended initial writ application at least by the time this Court finally disposed of that application in 2017.
Indeed, this Court has said that, in Article 11.07 proceedings, an applicant may amend his initial writ application at any time before it is finally disposed of. See Ex parte Saenz, 491 S.W.3d 819, 824 (Tex. Crim. App. 2016) ("We conclude that, without regard to whether it may properly be characterized as an additional 'application,' an additional pleading will not trigger the requirements of Section 4 [or Article 11.07] until after final disposition of the pending [initial] application."). That means, the State believes, that he could have presented his current claims in his initial writ application, and moreover, that because he did not, those claims should not be entertained in the present subsequent application. See Tex. Code Crim. Proc. art. 11.07 § 4(a)(1) (prohibiting courts from considering the merits of claims unless the claims "could not have been presented previously" in some earlier writ application).
By denying this subsequent application on its merits, the Court today tacitly rejects the State's abuse-of-the-writ argument. I think the Court is ultimately right to do so. But for the sake of the bench, the bar, and the inmate population, I believe the Court should formally explain why it rejects that argument. I therefore write further to explain at least why I reject it.
The State's argument assumes that a subsequent habeas applicant must have been unable to raise his claims at any time before the final disposition of his initial writ before he may successfully argue that those claims are based upon new law or newly available facts. But that assumption conflicts with the language of Section 4. The date after which a claim must have become newly available is not the date of final disposition of the earlier application. Under Section 4(a)(1), instead, "the factual or legal basis for the claim" must have been "unavailable" as of "the date the applicant filed the previous application[.]" Tex. Code Crim. Proc. art. 11.07 § 4(a)(1). Thus, so long as Applicant can demonstrate that his subsequent writ claims were factually or legally unavailable to him at the time that he filed his original writ application-here, 2009- it does not matter under the statute whether he could have raised those claims in an amendment to that initial writ application before it was finally disposed of.
With this understanding, I concur in the Court's judgment to deny Applicant's subsequent writ application on the merits, rather than to dismiss it as abusive under Section 4.