










IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-75,835-01


EX PARTE HECTOR ROLANDO MEDINA, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. W07-32923-S(A) IN THE 282ND 
JUDICIAL DISTRICT COURT DALLAS COUNTY


 Keasler, J., filed a dissenting opinion in which Hervey, J., joins.

DISSENTING OPINION

	This case is alarming to say the least.  Counsel, in the name of gamesmanship, has
placed his own interests above his client's, who has been convicted of capital murder and
sentenced to death.  The client, a "layman" according to counsel, is not pleased with
counsel's performance. 
	And to make matters worse, the majority is proceeding under a legal fiction.  The
majority treats the application as a "non-application" for purposes of Section 11.071.  In Ex
parte Kerr, the application challenged only the validity of the death-penalty statutory
scheme. (1)  We held that Kerr's application did not challenge the validity of the judgment. 
This application is nothing like that in Ex parte Kerr; it does challenge the validity of the
judgment and sentence.  Ex parte Kerr's holding was extremely limited, and we must remain
true to that precedent.  By adopting the majority's view, we are now required to grade
11.071, as well as 11.07, applications and decide which allegations are sufficient enough to
pass muster and which are not.  What if an application presents all non-cognizable habeas
claims?  Does this mean that we should treat it as a "non-application?"  This very situation
has occurred numerous times in the past, and we did not dismiss those applications as "non-applications."  
	That counsel deliberately failed to adequately plead facts does not justify the Court's
decision to rescue this applicant.  Let me be clear that my complaint has nothing to do with
this applicant.  Over the past thirteen years that I have been on this Court, I have reviewed
numerous 11.071 applications.  Some of them have been just as poorly pled as this
application.  Yet, in those cases, we denied relief, despite the appalling deficiencies, which,
under today's decision, should have been characterized as non-cognizable applications.  The
applicants in those cases were victims of deficient and inadequate lawyering that was a result
of ignorance but not necessarily incompetent. (2)  Here, the deficient lawyering is deliberate. 
It is inappropriate to draw any distinction between the two.  The outcome in the past has been
the same--the death-row client's one opportunity to seek habeas relief is lost.  This will carry
over into the applicant's federal court habeas proceedings, rendering those proceedings
meaningless.
	A consistent and proper application of the law leads to the following conclusions: 	
	Counsel has filed an Article 11.071 application on behalf of his client that resembles
what we have referred to as a skeletal application.  This does qualify as a writ application
under 11.071.  As a result, the application does not fall under Article 11.071, Section 4A,
because it was timely filed.  The application, however, fails to comply with the basic,
minimum pleading requirements well known to the bench and bar, including this particular
attorney, who has represented numerous death-row inmates on habeas.  The application before
us provides only succinct grounds for relief.  The bare-bones grounds do not provide a basis
for finding that there are any controverted, previously unresolved fact issues material to the
applicant's confinement for purposes of Sections 8(a) and 9(a).  Counsel, with express
recognition of our case law and an air of arrogance, has violated the pleading requirements. 
	A habeas applicant must plead facts that entitle him or her to relief and must prove his
or her claim by a preponderance of the evidence. (3)  This is especially relevant when it relates
to allegations of ineffective assistance of counsel under the Sixth Amendment, which requires
a showing of deficient performance and resulting prejudice. (4)  The conclusory ineffective-
assistance allegations presented here do not meet the essential prejudice requirement by
showing that there is a reasonable probability that the result of the proceedings would have
differed in the absence of counsel's alleged deficient performance. (5)  This mandates a fact-intensive and exhaustive review of the proceedings as a whole.  Because the burden is on the
applicant, the courts are not responsible for delving into the record, investigating the case, and
then formulating a habeas applicant's claims. 
	The State originally moved to dismiss the application based on the failure to comply
with the pleading requirements, and the trial judge has recommended that we grant the motion
to dismiss.  Our writ jurisprudence has recognized a distinction between a denial and a
dismissal.  A denial is a disposition related to the merits. (6)  "A disposition is related to the
merits if it decides the merits or makes a determination that the merits of the applicant's
claims can never be decided." (7)  A dismissal is a disposition unrelated to the merits. (8)  Our
practice when the grounds alleged fail to meet the pleading requirements is to deny relief
based on the fact that the grounds have been reviewed and we have made the determination
that no relief is warranted because the allegations are conclusory.  Thus, a dismissal of this
case is contrary to our practice.  And for the reasons already stated, proceeding under Section
4A is incorrect. 
	In its most recent filing, the State asserts that it is willing to waive the procedural bar
and requests that the Court proceed under Section 4A and appoint new counsel.  I can
appreciate the State's position; we are all troubled by this situation.   But the Legislature has
made no provision for such a waiver. (9)  And again, to permit anything other than a denial
would give this applicant an opportunity that other similarly situated applicants have been
denied.
 Much to my dismay, counsel has intentionally failed his client.  And because of that,
I formally refer him to the State Bar's grievance committee.  But just as disturbing is the
majority's decision to destroy what was once a level playing field for 11.071 applicants.  Now
that it has tied itself in knots, the majority should stand behind its drastic reversal of course
and review prior deficiently pled applications (assuming that those applicants have not already
been executed) to determine whether any of them should now be characterized as a non-application under this new precedent.    
	With these comments, I dissent.  A copy of this statement shall be sent to the Texas
State Bar's Chief Disciplinary Counsel's Office. 

DATE FILED: October 12, 2011
PUBLISH
1.   64 S.W.3d 414, 416-18 (Tex. Crim. App. 2002).
2.   See, e.g., Ex parte Reynoso, 257 S.W.3d 715, 723 (Tex. Crim. App. 2008)
(denying the applicant's sole non-cognizable habeas claim). 
3.   Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1976); King v. State, 649
S.W.2d 42, 44 (Tex. Crim. App. 1983) ("Counsel's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were
available and appellant would benefit from their testimony."); Ex parte Thomas, 906
S.W.2d 22, 24 (Tex. Crim. App. 1995); Ex parte McPherson, 32 S.W.3d 860, 861 (Tex.
Crim. App. 2000); see also Wilkerson v. State, 726 S.W.2d 542, 550 (Tex. Crim. App.
1986) (finding "there is nothing in the record to show that potential defenses were
precluded or that a visit to the scene would have made any difference in the defense's
case[;] the failure of the attorneys to visit the scene does not militate against a finding of
reasonable representation."); Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim.
App. 2005) (noting that the applicant bears the burden of proof and that the Court was
unable to "independently verify the accuracy of the facts set out in the trial court's
findings" because the applicant failed to include a copy of the trial testimony in the writ
record.); Ex parte Ramirez, 280 S.W.3d 848, 853-54 (Tex. Crim. App. 2007) (applicant
failed to show that testimony of uncalled witnesses would have been favorable and that
counsel's failure to review video recording of the crime was prejudicial); Ex parte
Imoudu, 284 S.W.3d 866, 886 (Tex. Crim. App. 2009) (psychiatric report concluding that
the applicant was insane at the time of the offense submitted in support of claim that  trial
counsel was ineffective in failing to investigate insanity defense).
4.   Strickland v. Washington, 466 U.S. 668, 686-94 (1984); see also Smith v.
Robbins, 528 U.S. 259, 285-86 (2000).
5.   Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) (citing
Strickland, 466 U.S. at 694).
6.   Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997). 
7.   Id. 
8.   Id.
9.   Compare with Day v. McDonough, 547 U.S. 198, 201-02 (2006) (recognizing
that the AEDPA's statute of limitations is an affirmative defense that is subject to waiver
by the State).
