            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. AP-76,947



                 EX PARTE CASEY TYRONE SLEDGE, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                     IN CAUSE NO. 52026-02-B FROM THE
                181ST DISTRICT COURT OF POTTER COUNTY

      P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, K EASLER, and H ERVEY, JJ., joined. A LCALA, J., filed a dissenting opinion
in which C OCHRAN, J., joined. J OHNSON, J., dissented. M EYERS, J., did not participate.

                                          OPINION

       Pursuant to a plea bargain with the State, the applicant was placed on deferred

adjudication for the offense of sexual assault of a child.1     The convicting court later

adjudicated the applicant’s guilt and sentenced him to five years’ imprisonment because,

among other things, he allegedly committed two new offenses. No appeal was taken. The

applicant filed an initial post-conviction application for writ of habeas corpus pursuant to


       1

       TEX . PENAL CODE § 22.011(a)(2).
                                                                                     Sledge — 2

Article 11.07 of the Texas Code of Criminal Procedure,2 in which he claimed that there was

insufficient evidence to support his conviction. On March 28, 2012, we denied the initial

writ application without written order. This is a subsequent post-conviction application for

writ of habeas corpus. In it, the applicant alleges that the trial court lacked jurisdiction to

revoke his deferred adjudication community supervision because the capias for his arrest did

not issue until three days after his community supervision period expired. In Langston v.

State,3 we held that a trial court loses jurisdiction to proceed to adjudicate a defendant’s guilt

when the district clerk fails to issue a capias before his probationary period expires.

       While we are not unsympathetic to the applicant’s claim, this Court lacks the authority

to grant him relief. Because this is a subsequent post-conviction writ application, we are

barred by the abuse of the writ doctrine, as codified by Section 4 of Article 11.07, from

reaching the merits of that claim, much less granting relief.4 Section 4 of Article 11.07

contains three statutory exceptions to the general rule that bars consideration of a subsequent

post-conviction writ application, but the current application “contains” no “sufficient specific

facts establishing” any of the enumerated exceptions.5 The application fails to contain facts

       2

       TEX . CODE CRIM . PROC. art. 11.07. All subsequent references to Articles are to the Texas
Code of Criminal Procedure.
       3

       800 S.W.2d 553, 554 (Tex. Crim. App. 1990), overruled in part by Harris v. State, 843
S.W.2d 34, 35 (Tex. Crim. App. 1992).
       4

        Article 11.07 § 4(a).
       5

        Id.
                                                                                    Sledge — 3

that establish either new law, new facts, or actual innocence.

       New Law: If an applicant can invoke a legal basis for relief that was unavailable at

the time of his initial post-conviction writ application, the applicant may overcome the

Section 4 statutory bar.6 To do so, he must establish that

       the legal basis was not recognized by and could not have been reasonably
       formulated from a final decision of the United States Supreme Court, a court
       of appeals of the United States, or a court of appellate jurisdiction of [the State
       of Texas] on or before [the date of the application].7

The applicant fails to allege, and we are unaware of, any new legal basis that would sidestep

the statutory bar that prevents us from reaching the merits of his claim.

       New Facts: A subsequent application may also avoid a Section 4 bar by establishing

that a factual basis now exists that was unavailable to the applicant when he filed his initial

post-conviction writ application.8 A new factual basis is one that could not have been

discovered “through the exercise of reasonable diligence” before the date of the initial

application.9 We have stated that reasonable diligence “suggests at least some kind of inquiry

has been made into the matter at issue.”10 In the instant case, the applicant claims he meets


       6

       Article 11.07 § 4(a)(1).
       7

       Article 11.07 § 4(b).
       8

       Article 11.07 § 4(a)(1).
       9

       Article 11.07 § 4(c).
       10

       Ex parte Lemke, 13 S.W.3d 791, 794 (Tex. Crim. App. 2000).
                                                                                           Sledge — 4

this exception because “he did not discover” the factual basis for the current claim until “on

or about June 7, 2012,” after he filed his initial post-conviction writ application. But the

applicant does not explain why he was unable, through reasonable diligence, to ascertain the

information before filing his initial post-conviction writ application. In fact, it is readily

apparent that the applicant could have easily obtained the information before now, just as he

did for the purpose of developing his current post-conviction writ application.11

        Innocence: If the application includes facts that establish “by a preponderance of the

evidence” that, absent a federal constitutional violation, “no rational juror could have found

the applicant guilty beyond a reasonable doubt,” he may defeat the bar prohibiting a




        11

         Before filing this subsequent post-conviction writ application, the applicant set out to prove
that the trial court lacked jurisdiction to adjudicate his guilt because the capias issued after his
probationary period expired. See Langston, supra. To bolster his claim, the applicant attached as
Exhibit “A” a letter he apparently wrote, dated June 7, 2012, to a “Mr. Brian Thomas.” An apparent
response to the applicant’s inquiry is written on the face of the same letter from a “Deputy Selman”
from “Warrants and Extraditions,” informing the applicant of the date his capias issued. The
applicant does not refer to the letter in this exhibit in the body of his application. We have no
information as to the identity or authority of Brian Thomas. Nor can we tell who Deputy Selman is,
what law enforcement entity he works for, or when he apparently answered the applicant’s query.
However, it seems that, in response to his query, the applicant was able to obtain a copy of his
capias, revealing the date the district clerk issued it, which the applicant also attaches as Exhibit “C.”

        Though Exhibit “A” does not tell us when the applicant may have received his reply from
Selman, the applicant alleges that “on or about June 7, 2012” he learned the date that his capias
issued, presumably (although he does not expressly say so) from Selman. Thus, by his own
admission, the applicant was able to obtain the necessary data, including a copy of the capias, to
bring his current claim within a period of a few days of his first attempts to do so. The relative ease
with which he was able to discover the facts necessary to support the current writ application
indicates a minimum amount of effort would have been necessary for the applicant to secure the
same information, through reasonable diligence, before filing his initial post-conviction writ
application.
                                                                                          Sledge — 5

subsequent post-conviction writ application.12 In Ex parte Brooks,13 we explained that, to

invoke this exception to the statutory bar, a subsequent application must contain facts to

establish both a prima facie claim of a constitutional violation and a prima facie claim of

actual innocence. Here, the applicant does not even attempt to make a prima facie claim of

either a constitutional violation or his actual innocence, so he cannot avoid the Section 4 bar

under this exception.14

       The Dissent—Jurisdiction: The dissent argues that, regardless of the dictates of

Section 4, the lack of jurisdiction over a case will render the judgment void, and such a

judgment “may always be collaterally attacked.”15 But we have never said that “always” in

this context should include for the first time in a subsequent application for writ of habeas

corpus that fails to satisfy any of the three exceptions to our statutory abuse of the writ


       12

          Article 11.07 § 4(a)(2).
       13

          219 S.W.3d 396, 400 (Tex. Crim. App. 2007).
       14

         Under the actual innocence exception to the abuse of the writ doctrine codified in Section
4, the applicant must establish a “violation of the United States Constitution[.]” TEX . CODE CRIM .
PROC. art. 11.07 § 4(a)(2). The applicant does not specifically assert that a constitutional violation
occurred—just that the trial court lacked jurisdiction to adjudicate his guilt. It is certainly possible
to argue, as the dissent does, that a court that purports to act without jurisdiction violates the due
process rights of the individual it purports to act upon. Dissenting Opinion at 10; see also Ogle v.
State, 43 Tex. Crim. 219, 231, 63 S.W. 1009, 1012 (1901). Because the applicant fails to make a
prima facie showing of actual innocence, his claim would be barred whether or not we sua sponte
construed his jurisdictional claim to allege a constitutional violation—as the dissent would have us
do.
       15

          Dissenting Opinion at 9 (quoting Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App.
2001)).
                                                                                    Sledge — 6

doctrine. Indeed, in Ex parte Blue,16 we essentially held to the contrary. There, a capital

habeas applicant argued that, under Section 5(a)(3) of Article 11.071 of the Code of Criminal

Procedure,17 he should be able to interpose a claim of mental retardation in bar of the death

penalty in a subsequent post-conviction writ application—even though he had enjoyed every

opportunity to raise that claim in his initial post-conviction writ application, but failed to do

so.18   Because execution of the mentally retarded is absolutely barred by the Eighth

Amendment, he should be able to claim mental retardation “at any time,” including in a

subsequent post-conviction writ application, notwithstanding the statutory abuse of the writ

doctrine.19 We rejected this claim, holding that the legislative prerogative to regulate post-

conviction habeas corpus procedure was well established and that “at any time” does not

include in a subsequent post-conviction writ application that cannot meet the dictates of

Article 11.071, Section 5.20 There is no reason to believe that the same should not be true

of Article 11.07, Section 4’s abuse of the writ provisions.

        The dissent argues that this case is distinguishable from Blue because it involves a



        16

        230 S.W.3d 151 (Tex. Crim. App. 2007).
        17

        Article 11.071 § 5(a)(3).
        18

        Blue, supra, at 154.
        19

        Id.
        20

        Id. at 155-56.
                                                                                        Sledge — 7

claim that the convicting court lacked jurisdiction.21 It is, of course, axiomatic in our case

law that review of jurisdictional claims are cognizable in post-conviction habeas corpus

proceedings.22 Moreover, we have recognized them to be cognizable without regard to

ordinary notions of procedural default—essentially because it is simply not optional with the

parties to agree to confer subject matter jurisdiction on a convicting court where that

jurisdiction is lacking.23 Therefore, unless and until such time as the Legislature might say

otherwise, in exercise of its constitutional authority to regulate post-conviction writ

procedure,24 a meritorious claim of truly jurisdictional dimension will “always” be subject

to vindication in an original post-conviction application for writ of habeas corpus. We do

not mean here to say otherwise. Had the applicant properly raised his present claim in his

original writ, we would not hesitate to reach the merits and, if appropriate, grant relief. But


       21

        Dissenting opinion at 5-6.
       22

        Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).
       23

         Cf. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (“Of course, the system
also includes a number of requirements and prohibitions which are essentially independent of the
litigants’ wishes. Implementation of these requirements is not optional and cannot, therefore, be
waived or forfeited by the parties. The clearest cases of nonwaivable, nonforfeitable systemic
requirements are laws affecting the jurisdiction of the courts.”); Garcia v. Dial, 596 S.W.2d 524,
527 (Tex. Crim. App. 1980) (“Jurisdiction of the subject matter cannot be conferred by
agreement[.]”).
       24

         See Ex parte Davis, 947 S.W.2d 216, 223-24 (Tex. Crim. App. 1996) (McCormick, P.J.,
concurring, joined by four other members of the Court) (codification of the abuse of the writ doctrine
in Article 11.071, Section 5 of the Texas Code of Criminal Procedure constituted a legitimate
exercise of the Legislature’s authority to “regulate” this Court’s post-conviction habeas corpus
jurisdiction, as conferred by TEX . CONST . art. V, § 5(c)).
                                                                                   Sledge — 8

in the context of subsequent post-conviction writ applications, the Legislature has validly

exercised its constitutionally-endowed regulatory authority to make it clear that only those

claims that fit within the statutory exceptions prescribed by Subsections 4(a)(1) and (2) of

Article 11.07 are cognizable. Short of overruling Ex parte Davis,25 we are not at liberty

talismanically to invoke “jurisdiction” to reach the merits and grant relief in a subsequent

writ application.

       The dissent seems to take the position that Section 4, on its face, does not apply the

abuse of the writ doctrine to claims involving jurisdictional defects.26 First, the dissent

argues, because a purported judgment of conviction from a court lacking jurisdiction is a

nullity from its inception, there is no final conviction to trigger this Court’s authority under

Article 11.07 to begin with, and so the abuse of the writ provisions of Section 4(a) do not

apply.27 This argument is untenable. The applicant filed his application for writ of habeas

corpus in this cause on the Court’s prescribed form for post-conviction applications under

Article 11.07, and it plainly challenges the validity of something that at least purports to be

a final conviction. It does not attempt in any other fashion to invoke this Court’s original

habeas corpus jurisdiction under Article V, Section 5 of the Texas Constitution,28 or any

       25

        Id.
       26

        Dissenting Opinion at 6-9.
       27

        Dissenting Opinion at 6-7.
       28

        TEX . CONST . art. V, § 5(c).
                                                                                  Sledge — 9

other conceivable process that would remove the cause from the legislative authority to

regulate post-conviction habeas corpus proceedings that we identified as controlling in Davis.

The applicant cannot call upon our general authority to grant appropriate post-conviction

habeas corpus relief under Article 11.07, while arguing that he should be insulated from the

plain limitations upon subsequent writ applications embodied in Section 4(a).

       Second, the dissent asserts that the Legislature could not possibly have intended to

prohibit subsequent post-conviction habeas corpus applicants from challenging convictions

obtained sans jurisdiction because such an intent would be too intolerable to contemplate,

and therefore “absurd.”29 It is of course true that we primarily glean legislative intent from

the statutory language itself when it is plain, unless application of the plain language “would

lead to absurd consequences that the Legislature could not possibly have intended.” 30 On its

face, Section 4(a) plainly does not include jurisdictional claims among the exceptions to the

prohibition against granting habeas corpus relief in a subsequent writ application. The

dissent does not really contend otherwise, but seems to argue that to effectuate the plain

language of Section 4(a) would lead to an absurd—indeed, an irrational—result.31 But there

is nothing irrational about the legislative exercise of its prerogative to draw a definite

statutory line beyond which the State’s substantial interest in the finality of its judgments


       29

       Dissenting Opinion at 8-9.
       30

       Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
       31

       Dissenting Opinion at 9.
                                                                                   Sledge — 10

overcomes all other policy interests, including the interest of habeas corpus applicants

indefinitely to preserve a forum in which to challenge—even on jurisdictional grounds—the

validity of their convictions. Davis established the legitimacy of that legislative prerogative,

and we may not allow our judgment about legislative wisdom to thwart legislative will.

       Because the statute plainly admits of no jurisdictional exception, we have no call to

resort to extra-textual considerations.32 The dissent would nevertheless have us presume that,

in enacting Section 4(a) of Article 11.07, the Legislature was aware of the evolution of post-

conviction habeas corpus jurisprudence, and the burgeoning of cognizability of claims

beyond those challenging the jurisdiction of the convicting court to include non-jurisdictional

constitutional claims.33 Aware of this history, the dissent asserts, the Legislature must surely

have meant to limit the application of Section 4(a)’s abuse of the writ provisions to only the

latter category of claims.34 The dissent cites no supporting authority for this assertion other

than the common presumption that the Legislature “is aware of case law affecting or relating

to” its enactments.35 We reject it. That the Legislature may have been aware of the historical



       32

        See Boykin, supra, at 785.
       33

        Dissenting Opinion at 7 n.5 & 8-9; see also Ex parte Crispen, 777 S.W.2d 103, 106-108
(Tex. Crim. App. 1989) (Clinton, J., concurring) (describing the evolution of the scope of habeas
cognizability from addressing only jurisdictional claims to also vindicating substantial federal
constitutional defects).
       34

        Id. at 8-9.
       35

        Id. at 8 (citing Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000).
                                                                                  Sledge — 11

expansion of habeas cognizability does not establish that it meant for its codification of the

abuse of the writ doctrine to circumscribe that expansion only with respect to non-

jurisdictional, constitutionally based claims. Moreover, to the extent that we have looked to

legislative history in the past to construe Section 4, we have emphasized the clear legislative

intent to provide but “one [full] bite of the apple,” with no qualification expressed for habeas

claims predicated on jurisdictional, as opposed to merely constitutional, defects.36 To the

contrary, the Legislature meant largely to mimic federal abuse of the writ practice.37 We note

that, in applying the federal abuse of the writ provision applicable to challenges of federal

criminal convictions, at least one federal court of appeals has recently held that the federal

district court rightly declined to entertain a petitioner’s claim in a subsequent federal habeas

corpus petition that the convicting court had lacked jurisdiction to convict him.38

          The Dissent—Innocence: Although the applicant makes no argument that his

application satisfies Section 4(a)(2) of Article 11.07, the dissenters do. According to the

dissent, because the trial judge in this deferred adjudication proceeding had not yet found the

applicant guilty, the rational fact-finder posited by Section 4(a)(2) (here, the trial judge)

could not “have found the applicant guilty” because the trial court had lost jurisdiction to do



          36

          Ex parte Torres, 943 S.W.2d 469, 473-74 (Tex. Crim. App. 1997).
          37

          Id. at 473; Blue, supra, at 160 n.40.
          38

           Thompson v. Choinski, 525 F.3d 205, 208 (2nd Cir. 2008), cert. denied, 555 U.S. 1118
(2009).
                                                                                        Sledge — 12

so.39 The dissent finds authority for this assertion in Blue. In Blue, we held that a rational

jury “could” not answer capital punishment special issues in the State’s favor—“if only for

the simple reason that” a finding of mental retardation would, under the Eighth Amendment,

obviate the submission of those issues to the jury “in the first place.” 40 Here, by contrast, the

relevant fact finding is not obviated. The trial court could not have placed the applicant on

deferred adjudication community supervision “in the first place” without finding that the

State’s evidence at least “substantiates the defendant’s guilt[.]”41 Thus, at the time the

statutory scheme contemplates that a finding of guilt must be made (albeit not acted upon in

a formal adjudication), the fact-finder clearly “could have found the applicant guilty beyond




       39

        Dissenting Opinion at 10-11. The dissent does not address the apparent anomaly that its
analysis can apply only in cases of deferred adjudication, never in cases involving regular probation
revocation proceedings.
       40

        Blue, supra, at 161. The applicable provision in Blue, subsection 5(a)(3) of Article 11.071,
deals with the special issues submitted to the jury in a death penalty case. That subsection reads:

       Sec. 5 (a) If a subsequent application for a writ of habeas corpus is filled after filing
       an initial application a court may not consider the merits of or grant relief based on
       the subsequent application unless the application contains sufficient facts establishing
       that:

                                                ***

       (3) by clear and convincing evidence but for a violation of the United States
       Constitution no rational juror would have answered in the state’s favor one or more
       of the special issues that were submitted to the jury in the applicant’s trial under
       Article 37.071 or 37.0711.
       41

        Article 42.12 § 5(a).
                                                                                       Sledge — 13

a reasonable doubt.”42 Any subsequent proceeding for purposes of deciding whether to

proceed to adjudication does not involve a revisitation of the initial guilt-substantiation

determination.43 The applicant has failed to show that “no rational jury could have found him

guilty beyond a reasonable doubt” based upon whatever evidence was originally proffered

to substantiate his plea; nor does he identify any new evidence that would somehow cast that

original evidence in a new, overwhelmingly exculpatory light.44 Under these circumstances

the applicant has not satisfied the exception to the abuse of writ doctrine that is embodied in

Section 4(a)(2).

       Conclusion: In Section 4 of Article 11.07, the Legislature has explicitly prescribed

the only circumstances in which we may reach the merits of a subsequent post-conviction

writ application. “[I]t is not for the courts to add or subtract” from that enactment.45 We

have long held that the Legislature is authorized to circumscribe post-conviction habeas



       42

        Article 11.07 § 4(a)(2).
       43

         See Article 42.12 § 5(b) (“The defendant is entitled to a hearing limited to the determination
by the court of whether it proceeds with an adjudication of guilt on the original charge.”). Cf.
Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999) (since 1987, the Legislature has
provided that defendants may immediately appeal the proceedings at which they were placed on
deferred adjudication probation in the first place, and they must now raise issues of the sufficiency
of the evidence to substantiate guilt in that immediate appeal, not in any later appeal of the decision
to proceed to adjudication).
       44

        Article 11.07 § 4(a)(2).
       45

       Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App.1991) (quoting Ex parte Davis, 412
S.W.2d 46, 52 (Tex. Crim. App.1967)).
                                                                                    Sledge — 14

procedure in precisely this way.46 As none of the above statutory exceptions provides an

appropriate vehicle to review the merits of the applicant’s claim—much less grant

relief—under Section 4, this Court has no choice but to dismiss the instant application.




FILED:         January 16, 2013
PUBLISH




       46

        Davis, 947 S.W.2d at 219. Cf. Rushing v. State, 85 S.W.3d 283, 285-86 (Tex. Crim. App.
2002) (the Legislature is empowered to regulate whether a claim of lack of jurisdiction in juvenile
court may be raised on direct appeal).
