Opinion
NO. WR-85,286-01
09-15-2021
EX PARTE Charles BROWNLOW, Applicant
Ashley Steele, for Applicant.
Ashley Steele, for Applicant.
ORDER
Per curiam.
We have before us Applicant's "Motion to Dismiss Without Prejudice Application for Writ of Habeas Corpus Filed Pursuant to Article 11.071." Therein, Applicant asks us to do what the title of his motion suggests—to dismiss without prejudice the application for a writ of habeas corpus he timely filed in the trial court pursuant to Texas Code of Criminal Procedure Article 11.071.
Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.
On June 6, 2016, the trial court appointed the Office of Capital and Forensic Writs (OCFW) to represent Applicant in a post-conviction writ of habeas corpus under Article 11.071. On March 25, 2019, OCFW filed the writ application in the trial court.
Nearly a year after OCFW filed the writ application in the trial court, this Court issued an opinion in Applicant's direct appeal reversing his sentence and remanding the case for a new punishment trial. See Brownlow v. State , No. AP-77,068, 2020 WL 718026 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication). In his motion to dismiss his writ application, Applicant asserts that the grant of a new punishment trial has rendered the application moot.
Applicant is mistaken. Although any habeas claims Applicant has raised seeking relief from his death sentence have been rendered moot, any claims seeking relief on guilt phase issues are not moot. Applicant's motion to dismiss his writ application is denied and OCFW shall continue to represent Applicant in this matter.
IT IS SO ORDERED THIS THE 15th DAY OF SEPTEMBER, 2021.
Yeary, J., filed a dissenting opinion.
DISSENTING OPINION
Yeary, J., filed a dissenting opinion.
Applicant was convicted of capital murder in 2016 and filed his brief on direct appeal in 2018. Represented by the Office of Capital and Forensic Writs (OCFW), Applicant filed his original post-conviction application for writ of habeas corpus under Article 11.071 in 2019. TEX. CODE CRIM. PROC. art. 11.071. In 2020, this Court reversed the punishment phase of Applicant's trial on direct appeal and remanded his case for a new punishment proceeding, which—as far as we know—is still pending. Brownlow v. State , No. AP-77,068, 2020 WL 718026 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication). Now, OCFW has filed a motion requesting that we dismiss his current Article 11.071 writ application without prejudice to file a new one should he again be sentenced to death. In my view, we should grant the motion.
Section 1 of Article 11.071 reads: "Notwithstanding any other provision of [Chapter 11 of the Code of Criminal Procedure], this article establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death. " TEX. CODE CRIM. PROC. art. 11.071, § 1 (emphasis added). Although Applicant's original post-conviction writ application did seek relief from such a judgment when he filed it, this Court's reversal of the judgment to the extent that it imposed the death penalty now means he no longer seeks relief from such a judgment. To the degree that his application once sought relief from such a judgment, it is now moot. And to put it simply, this Court lacks any remaining authority to proceed with the writ application under the provisions of Article 11.071.
Even when an applicant seeks post-conviction relief from a felony conviction in which "a penalty other than death" is imposed, our Code of Criminal Procedure provides that Article 11.07 "shall be exclusive" and that "any other proceeding shall be void and of no force and effect in discharging the prisoner." TEX. CODE CRIM. PROC. art. 11.07, §§ 1 & 5. But, of course, presently, we lack authority to grant Applicant relief under either Article 11.071 or Article 11.07. We cannot proceed under Article 11.071 because there is no longer a judgment imposing a death sentence. And we cannot proceed under Article 11.07 because Applicant has not yet received a sentence in a felony case at all, much less a death sentence.
A judgment of conviction for a felony, other than one that includes a sentence of death, must be final before we may entertain a post-conviction application for writ of habeas corpus challenging it under Article 11.07. E.g. , Ex parte Johnson , 12 S.W.3d 472, 473 (Tex. Crim. App. 2000). A sentence is part of the judgment. TEX. CODE CRIM. PROC. art. 42.01, § 1(9), (15), (17), (18) ; id. art. 42.02. See Stokes v. State , 688 S.W.2d 539, 541 (Tex. Crim. App. 1985) ("The sentence is now an integral part of the judgment."). Without a sentence, Applicant's judgment cannot be final. See Glaze v. State , 675 S.W.2d 768, 769 (Tex. Crim. App. 1984) ("A conviction is not final until sentencing occurs.").
One substantial difference between writ applications filed pursuant to Article 11.07 and those filed pursuant to Article 11.071 is that applications filed pursuant to Article 11.071 are ordinarily required to be filed while the direct appeal is still pending, while applications filed pursuant to Article 11.07 must wait until the challenged judgment becomes final. When an application for writ of habeas corpus is filed pursuant to Article 11.07, if the appeal is still pending, this Court will dismiss the application because the judgment is not yet final. I can only presume the Court would do the same to an Article 11.07 application filed only after a purely punishment-phase reversal on direct appeal but before the new sentencing phase was completed, even if the application raised only issues related to guilt, because the judgment in the case must be final before the Court may exercise any authority over it, and it cannot be final without a sentence. Even so, it would make eminently more sense for the Court to hold on to an applicant's early-filed Article 11.07 writ application in those circumstances, since it would be orders of magnitude closer to a foregone conclusion that the Applicant would at some point be sentenced again, and that his conviction would at some point become final. Here, even though Applicant might again be sentenced to death, we have no assurance that he will be, and so we have no reason to pretend to still have authority over the remaining guilt-based claims in his original application.
The upshot is that, at present, we are not authorized to consider Applicant's post-conviction application for writ of habeas corpus under either Article 11.071 or Article 11.07. And we cannot know which provision will control post-conviction habeas corpus proceedings in this case until Applicant is re-sentenced. In my view, this leaves us with only one logical and just option, especially in the face of the motion that Applicant has now filed: We must dismiss his original Article 11.071 writ application.
Even if we purported to regard Applicant's writ application at that juncture as being filed pursuant to Article 11.07 rather than Article 11.071, we might then have to dismiss it for failing to utilize the proper Article 11.07 form!
Perhaps the Court is concerned that granting Applicant's motion to dismiss without prejudice counteracts the spirit, if not the letter, of Section 5 of Article 11.071 —the subsequent-applications provision. TEX. CODE CRIM. PROC. art. 11.071, § 5. Dismissing Applicant's initial writ application without prejudice to refile it at the conclusion of the new capital punishment proceeding (and assuming Applicant is assessed the death sentence again, which this Court should not consider to be a foregone conclusion) would have the effect of resuscitating the timetable in Section 4(a), thus affording Applicant more time than he would otherwise have had to develop even claims that seek to overturn his guilt-phase verdict. See TEX. CODE CRIM. PROC. § 4(a) (setting the timetable for filing an initial capital post-conviction application for writ of habeas corpus). The Court might believe that granting Applicant's motion would result in an unwarranted windfall; that it will artificially extend the time he is allowed by statute to investigate and prepare challenges to the guilt/innocence phase of his trial, even though that part of his trial remains intact following our opinion on direct appeal.
If that was indeed the Court's concern, I would not share it, because it would seem to make two assumptions that I would reject. First, it would inappropriately assume that Applicant will once again be sentenced to death. Second, it would inappropriately assume that any post-conviction application challenging the guilt phase of Applicant's trial that is filed after his new sentence is imposed—assuming he does get sentenced to death again—would be a subsequent writ, in violation of the spirit if not the letter of Section 5 ’s subsequent writ provision. For the reasons that follow, I would regard neither of these assumptions as well-founded.
First, the Court should not so nakedly assume that Applicant will once again be sentenced to death. We have no reason to assume that will happen, and doing so may needlessly foster an impression, right or wrong, of a judicial thumb pressing down on one side of the scales of justice. If instead, contrary to the Court's assumption, Applicant were to receive a sentence of life without parole, we would certainly be compelled to dismiss his present writ application, since we would then (just as now ) most assuredly lack authority to consider any challenge to his capital conviction sans the death penalty under the provisions of Article 11.071. This consideration alone ought to be enough to convince the Court not to temporarily disregard our present lack of authority over the original Article 11.071 writ application.
Second, we should not assume that the terms of Article 11.071 require us treat a post-conviction application for writ of habeas corpus as "subsequent"—in letter or in spirit—to the extent that it raises guilt-phase challenges after a second punishment phase at which another death sentence was imposed. Nothing in the statute compels that conclusion. The statute simply does not speak directly to the situation we have here. But nor does it speak to whether a second application that raises only issues from the second punishment phase should be regarded as "subsequent," and yet we would never regard such a second application in that way.
In my view, we ought to simply declare that the initial writ that Applicant filed is now moot. It is moot because it no longer is capable of accomplishing the one thing that a writ filed pursuant to Article 11.071 is authorized to do: "seek relief from a judgment imposing a penalty of death." When a pleading is moot, we dismiss it.
Perhaps the Court believes that any writ containing newly formulated challenges to Applicant's never-before reversed guilt phase—raised in a writ application filed after his second punishment phase becomes complete—would need to be considered as subsequent, at least to the extent it contained guilt-phase complaints. I reject that notion as well because we could simply consider the initial filing, which was later rendered moot by appellate reversal of the punishment phase, to now be a nullity—no longer really an initial "writ" at all—for purposes of Section 5 of Article 11.071. We have declared purported initial writs not to really constitute initial writs before—and under circumstances that seem to me arguably less compelling. See Ex parte Kerr , 64 S.W.3d 414 (Tex. Crim. App. 2015) (holding that a purported initial writ application that did not actually seek relief from the judgment imposing death, but instead challenged the constitutionality of the writ process itself, along with the effectiveness of writ counsel himself, was not really an "initial writ" in contemplation of Section 5 of Article 11.071 ).
Dismissal strikes me easily as the simplest solution to the conundrum before us. It is also the one solution that is most consistent with the limitations on our authority as plainly expressed in both Article 11.071 and Article 11.07. Any extra opportunity this solution may afford an applicant to prepare guilt-phase challenges to his conviction is only a windfall if it represents more than the statutes themselves operate to allow.
For all of these reasons, I would grant Applicant's motion to dismiss his Article 11.071 writ application without prejudice to re-file it (even though it might once again raise challenges—and perhaps even new or better developed ones—to the guilt phase of his trial) at a later date as may become appropriate; and without prejudice to filing an Article 11.07 writ application, should that eventually prove to be the appropriate procedure after all. Because the Court does not, I respectfully dissent.
Indeed, we learn—informally, unofficially—even as this opinion issues, that Applicant has received a sentence of life without parole as a result of his second punishment proceeding following our reversal of the death penalty and remand for resentencing. If that turns out to be accurate, it only underscores all of my arguments for dismissing his initial Article 11.071 application as moot!