










IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-75,693


RODNEY REED, Appellant

v.

THE STATE OF TEXAS



ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 8701 IN THE 21ST DISTRICT COURT
OF BASTROP COUNTY


Keller, P.J., filed a concurring opinion.



	The Court says, "For over forty years, our writ jurisprudence has consistently recognized that
this Court is the ultimate factfinder in habeas corpus proceedings." (1)  I believe that this is a serious
misstatement of the law, and I also believe that the Court's engagement in fact-finding in this case
is unnecessary.  I therefore find myself unable to join the Court's otherwise formidable opinion. 
	The Court characterizes itself as the "ultimate fact finder" and the trial judge as the "original
factfinder." (2)  The Court says that "in most circumstances" and "ordinarily" we will defer to a trial
judge's findings of fact that are supported by the record. (3)  The Court says that we conduct an
independent review of the record and that, if the trial judge's findings are not supported by the
record, we have the authority "to make contrary or alternative findings and conclusions." (4) 
	For these pronouncements, the Court cites a handful of cases, the most recent of which is the
per curiam opinion Ex parte Van Alstyne. (5)  But the statements made in these cases are, at best, dicta,
and in many instances they fail to support the Court's holding for other reasons.  In Van Alstyne, for
example, the statement that this Court is the "ultimate fact finder"was dicta because this Court did
in fact defer to the trial court's findings of fact. (6)  The Court did not reject a single finding of fact, let
alone make findings contrary to those of the trial court. (7)

	The Court's citations to Ex parte Simpson, (8) Ex parte Adams, (9) and Ex parte Young (10) provide
no further support for the notion that this Court can refuse to defer to a trial judge's record-supported
findings in the habeas corpus context.  To the contrary.  This Court emphasized in Simpson that the
trial judge, not this Court, was responsible for gathering evidence and making fact-findings:  
[T]he habeas judge is "Johnny-on-the-Spot."  He is the collector of the evidence, the
organizer of the materials, the decisionmaker as to what live testimony may be
necessary, the factfinder who resolves disputed factual issues, the judge who
applies the law to the facts, enters specific findings of fact and conclusions of law,
and may make a specific recommendation to grant or deny relief. This Court then has
the statutory duty to review the trial court's factual findings and legal conclusions to
ensure that they are supported by the record and are in accordance with the law.  We
are not the convicting trial court, and we are not the original factfinders. (11)

We made those statements in response to a habeas applicant's attempt to submit evidence that had
not been submitted to the trial court directly to this Court. (12)  Though we said that we "might" have
"implicit"authority to consider evidentiary materials filed directly with this Court, we did not in fact
do so in that case. (13)  But even if we had, doing so would not support the proposition that we could
decline to defer to the trial court regarding evidence that actually was before it.
	In Adams, the Court said that it was "not bound by the trial court's findings and conclusions
of law" and that "generally" if the trial court's findings of fact are supported by the record, they
should be accepted. (14)  That is undoubtedly correct.  But if findings are not supported by the record,
the alternative is not to make contrary findings; it is to reject the unsupported findings.  In fact, in
Adams the Court relied upon an earlier decision that "compared a trial judge's factual findings in a
habeas corpus proceeding to a jury's resolution of factual disputes." (15)  And, of course, the Adams
court did defer to the trial judge's resolution of the facts, so whatever the opinion said about the issue
was dicta anyway. (16)
	In Young, a 1967 case, the Court explained that "[u]nder prior decisions" this Court was not
bound by the findings of the district judge but decided the case upon facts ascertained "by affidavit
or otherwise" and that the "resolution of disputed issues of fact has not heretofore been left with the
district judge, subject to review of the Court of Criminal Appeals." (17)  But the Legislature changed
that by amending article 11.07 of the Texas Code of Criminal Procedure. (18)   After amendment, article
11.07 "[f]urnishes statutory authority whereby the Court of Criminal Appeals may accept and adopt
the findings of the district judge on such disputed issues of fact or review such findings to ascertain
whether they are fairly supported by the transcription of the evidence and the record." (19)  So, before 
article 11.07 provided for fact-finding by the trial court, this Court may not have been "bound" in
any sense by any informal fact-finding that might have been made by a trial court under the auspices
of habeas corpus, but it seems clear now that this Court is "bound" by the trial court's fact-findings
if they are supported by the record.  It is accurate to say that this Court is "not bound" by the trial
court's fact-findings if one simply means that this Court can reject those findings if they are not
supported by the record.  But the Court's language goes further by saying that this Court can make
its own findings, rather than simply evaluating whether the trial court's findings are sufficiently
supported, and on occasion ignore a trial court's fact-finding even when the record supports it. 
 	And the Court further suggests that, if enough of the trial court's findings are not supported
by the record, that can be a basis for disregarding findings that are supported: "When our
independent review of the record reveals findings and conclusions that are unsupported by the
record, we will, understandably, become skeptical as to the reliability of the findings and conclusions
as a whole," (20) "when numerous, but not all, findings and conclusions are not supported by the record,
the determination of the level of deference to be accorded the findings and conclusions as a whole
is to be made on a case-by-case basis," (21) and, says the Court, "under the rarest and most
extraordinary of circumstances . . . we will refuse to accord any deference whatsover to the findings
and conclusions as a whole." (22)  I am aware of no caselaw supporting these propositions, and the
Court cites none.  And I am leery of case-by-case determinations and rules that allow for rare
exceptions.  While "rare" may mean "rare" when a rule is laid down, once that door is open it can
mean something else entirely.  Especially when, as here, there is no clear standard for determining
how many unsupported findings will trigger the loss of deference, and how this Court will decide
whether the trial court's record-supported fact-findings will be ignored.  Perhaps a definite rule in
this regard is an impossible task, but that is a sign that we should not be engaging in this task to
begin with.  
	And we need not engage in that task here.  The issues in this case can be resolved, and in fact
are resolved, by deferring to the trial court's record-supported fact-findings. 
 I concur in the judgment of this Court to deny relief.
Filed: December 17, 2008
Publish 
1.   Court's op. at 54.
2.   Id. 
3.   Id. at 55.
4.   Id.
5.   239 S.W.3d 815 (Tex. Crim. App. 2007).
6.   Id. at 823.
7.   In Van Alstyne, I filed a dissent (joined by Judges Keasler and Hervey) that considered the
crucial question to be, not whether we could decline to defer to a trial judge's record-supported fact-findings, but whether the trial judge's determination of mental retardation was in fact supported by
the record.  See id. at 824-26.  Indeed, I conceded that almost total deference to the trial judge's fact-findings was required, but argued that the videotape required us to reject the trial judge's ultimate
conclusion that Van Alstyne was mentally retarded within the meaning of Atkins v. Virginia.  Id.
8.   136 S.W.3d 660 (Tex. Crim. App. 2004).
9.   768 S.W.2d 281 (Tex. Crim. App. 1989).
10.   418 S.W.2d 824 (Tex. Crim. App. 1967).
11.   136 S.W.3d at 668-69 (bold added, italics in original).
12.   Id. at 669.
13.   Id.
14.   768 S.W.2d at 288.
15.   Id. (discussing Ex parte Moore, 136 Tex.Cr.R. 427, 126 S.W.2d 27 (1939)).
16.   Id.
17.   418 S.W.2d at 826-27 (emphasis mine).
18.   418 S.W.2d at 827-29.
19.   Id. at 829.
20.   Court's op. at 55 (emphasis mine).
21.   Id. at 56.
22.   Id. at 57.
