            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                   NO. WR-82,063-01



           EX PARTE ELMER HOWARD WHISENANT, JR., Applicant



            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
            CAUSE NO. F34688 A IN THE 249TH DISTRICT COURT
                       FROM JOHNSON COUNTY



      K EASLER, J., filed a dissenting statement, in which H ERVEY, J., joined.

                             DISSENTING STATEMENT

      This application does not warrant a remand for findings of fact and conclusions of law

from the habeas court. Howard Whisenant’s counsel is gaming the system. He admits as

much. This deficiently pleaded application should be denied with a warning to counsel.

      Whisenant alleged, among other things, a false-evidence claim. His application

contained only conclusory false-evidence claims and did not include affidavits from

recanting witnesses.   In a motion to remand to the habeas court filed in this Court,

Whisenant’s counsel said he made a strategic decision not to include the affidavits and
                                            WHISENANT DISSENTING STATEMENT—2

declarations with his application. “If the declarations/affidavits were filed with the writ,” he

wrote, “Counsel felt the likelihood of not receiving a live hearing would increase greatly.

Counsel was waiting for the order designating issues before filing Applicant’s evidence.”

The motion was denied, but done so in a written order that charitably noted that, if he wanted

the affidavits to be considered, they should be filed in the convicting court. Counsel

followed the advice, and the affidavits were forwarded here. The affidavits are from five of

Whisenant’s children claiming that a portion of their trial testimony was false. Only one

child—Janey Ingram—was a complainant listed in two burglary counts in Whisenant’s

indictment, and she does not recant her testimony concerning the burglaries.

       Even with the affidavits, Whisenant’s application, prepared by counsel, does not

adequately explain why he is entitled to relief. In his first false-evidence claim he stated as

facts in support that “the [children] were pressured and coached by their mother, Applicant’s

ex-wife, to testify falsely,” and that she made up different stories for the children to say. The

face of the application does not say what those stories were and what specific testimony was

false. He has further failed to make even some showing that he is legally entitled to relief.

Like we said in Ex parte Medina, proper pleading includes answering the question “How, if

at all, was applicant harmed?”1 Whisenant’s application does not explain the falsities, much

less why these falsities were material.2 There is only a conclusory statement that the



       1
           Ex parte Medina, 361 S.W.3d 633, 641 (Tex. Crim. App. 2011).
       2
           Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).
                                            WHISENANT DISSENTING STATEMENT—3

children’s “stories had a substantial emotional impact on the jury and contributed to

[Whisenant’s punishment].” Without a memorandum of law explaining this, we are left only

with a bare, conclusory assertion. In doing so, he leaves it to this Court to examine the

affidavits, review the entire trial transcript, parse out the allegedly false testimony, and then

determine whether the affidavits, if true, are material by evaluating these falsities in light of

the entire record. In short, Whisenant’s counsel leaves it to us to make his case for his client.

We require more in an application and more from habeas counsel.

       Remanding this application for further factual development and findings and

conclusions rewards counsel’s admitted use of a deficient application to increase his chances

of receiving an evidentiary hearing—similar behavior that this Court expressly condemned

in Ex parte Medina. Counsel would do well to avoid this course of representation of habeas

applicants in the future; it may not always result in such a favorable outcome, and an

applicant’s avenue for relief hangs in the balance.




DATE FILED: June 3, 2015

DO NOT PUBLISH
