          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                        WR-82,807-01

                       Ex parte JUSTIN TODD VALDEZ, Applicant


         ON APPLICATION FOR AN ORIGINAL WRIT OF HABEAS CORPUS
          CRIMINAL ACTION NO. 41070 IN THE COUNTY COURT AT LAW
                           CALDWELL COUNTY

       R ICHARDSON, J., filed a concurring opinion.

                                CONCURRING OPINION

       Applicant filed an original writ of habeas corpus with this Court seeking an out-of-

time petition for discretionary review (“PDR”) from a judgment imposing community

supervision. I concur in the Court’s decision to dismiss this original application. I agree that

Applicant should have filed his writ application with the trial court.

       The majority states that “[w]hen an application does not fall within one of the

provisions relating to a certain type of judgment, order, or proceeding, a habeas corpus

remedy may nevertheless be available under the Texas Constitution and Article 11.05.”
                                                                     Valdez Concurring Opinion — 2


Although applicant may have sought relief from this Court via a “Constitutional writ,” in

dismissing such application, I would have taken the extra step to address whether applicant’s

writ application is one that does fall within one of the statutory provisions. I believe

applicant’s claim for relief in the form of an out-of-time PDR falls under Article 11.072,1 not

under the general constitutional provisions or under Article 11.05.2             The majority does not

specifically mention Article 11.072.            Article 11.072, Section 1, provides: “This article

establishes the procedures for an application for writ of habeas corpus in a felony or

misdemeanor case in which the applicant seeks relief from an order or a judgment of

conviction ordering community supervision.” Although Article 11.072 § 2(b) does not

expressly allow for a writ applicant to seek an out-of-time appeal or PDR, neither does the

express wording of Article 11.07.3 Yet requests for such relief are routinely considered

under Article 11.07. If this Court is going to hold that there are certain claims that, although

they do not literally “seek relief from a felony judgment,” are still cognizable under Article

11.07, it makes sense that this Court should follow that same line of reasoning when

interpreting Article 11.072.

        The first section of each statute (Article 11.07 and Article 11.072) is similarly worded


        1
            T EX. C ODE C RIM. P ROC. art. 11.072.
        2
            T EX. C ODE C RIM. P ROC. art. 11.05.

        3
         T EX. C ODE C RIM. P ROC. art. 11.07, § 1, provides, “This article establishes the procedures for
an application for writ of habeas corpus in which the applicant seeks relief from a felony judgment
imposing a penalty other than death.” (Emphasis added).
                                                                     Valdez Concurring Opinion — 3


and defines the scope of the statute. Both articles apply to attacks on a conviction, whether

that conviction resulted in confinement or community supervision. Just as Article 11.07 is

the proper vehicle through which to seek an out-of-time appeal or PDR where the applicant

was sentenced to confinement, I believe that Article 11.072 is the proper vehicle through

which to seek an out-of-time appeal or PDR where the applicant was placed on community

supervision.4

        This Court has indicated in previous opinions that out-of-time appeals are available

under Article 11.072. In Ex parte Martinez,5 the appellant filed an Article 11.072 application

        4
           I would not interpret the subsequent-application provisions in the two articles as being
instructive on this issue. It is true that they are worded differently. Article 11.072, § 9(a) begins, “If
a subsequent application for writ of habeas corpus is filed after final disposition of an initial
application under this article, a court may not consider the merits of or grant relief based on the
subsequent application unless the application contains sufficient specific facts establishing that . . .”
(emphasis added). Article 11.07, § 4(a) begins, “If a subsequent application for writ of habeas corpus
is filed after final disposition of an initial application challenging the same conviction, a court may
not consider the merits of or grant relief based on the subsequent application unless the application
contains sufficient specific facts establishing that . . .” (emphasis added). One could argue that the two
phrases, “under this article” in Article 11.072, and “challenging the same conviction” in Article 11.07,
denote the difference in interpretations. However, I believe that the key wording is, instead, “final
disposition,” which is the same in both articles. Filing a request for an out-of-time appeal or PDR
under either Article 11.07 or Article 11.072 should not trigger the prohibition against subsequent
applications because granting such relief on that type of claim would not be a “final disposition of an
initial writ application.” In Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997), we held
that, “[w]hile the Legislature limited applicants to one bite of the apple, they clearly contemplated that
that bite would be a full one.” Granting (or denying, for that matter) a writ applicant’s request for an
out-of-time appeal under either article, then later finding that the subsequent writ bar has been
triggered, is not affording that writ applicant the full bite. See also Ex parte Rodriguez, 466 S.W.3d
846, 849 n.8 (Tex. Crim. App. June 17, 2015) (mot. for reh’g. overruled Aug. 26, 2015) (noting that,
“because applicant’s first application was resolved solely on the out-of-time PDR claim, there was no
final disposition of a claim that challenged the conviction, so the current application is not barred under
Tex. Code Crim. Proc. Art. 11.07 § 4.”).
        5
            No. PD-1801-10, 2011 WL 2582199 (Tex. Crim. App. 2011) (not designated for publication).
                                                                Valdez Concurring Opinion — 4


for habeas corpus relief. The trial court signed an order denying the application. The

appellant’s appeal was dismissed by the appellate court as untimely filed. On discretionary

review from the appellate court, this Court held that the notice of appeal was, indeed,

untimely filed and affirmed the decision of the court of appeals. The Court’s majority

opinion in Martinez noted, however, that “[t]he appellant’s appeal is dismissed without

prejudice to his ability to file future 11.072 writ applications in this matter.” 6 It was further

explained in the concurring opinion that the appellant “may file a subsequent writ application

under Article 11.072 alleging the due-process violation—the deprivation of his right to

appeal—that had not yet occurred at the time that he filed his original writ application, and

request reconsideration of his original writ to remedy that second purported constitutional

error. This is akin to our Article 11.07 writ process of granting an out-of-time appeal when

either the appellate attorney fails to properly file a notice of appeal or there is a ‘breakdown

in the system’ that prevents the filing of a proper notice of appeal.” 7

       Although not in this same context, this Court has previously acknowledged that

“[o]ften, it is better to be consistent than right.”8 I believe that there should be consistency

in how Articles 11.07 and 11.072 are interpreted with regard to the cognizability of writ



       6
           Id. at *1.
       7
       Id. (Cochran, J., concurring) (emphasis added); See also, Ex parte Parodi, No. PD-1740-11,
2012 WL 669981 (Tex. Crim. App. 2012) (not designated for publication).
       8
           Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim. App. 1997).
                                                                   Valdez Concurring Opinion — 5


applications seeking out-of-time appeals and their impact vis-a-vis the subsequent writ bar.

Therefore, I believe that, just as Article 11.07 is the proper vehicle to request an out-of-time

appeal or PDR from a judgment of confinement, Article 11.072 is the proper vehicle to

request an out-of-time appeal or PDR from a judgment or order imposing community

supervision.9 And, I agree with the majority that a trial court judge has the authority to grant

an out-of-time appeal or PDR.10

        With these comments, I concur in the Court’s dismissal of Applicant’s original writ

application because I agree that it should have been filed with the trial court.




FILED: May 4, 2016
PUBLISH




       9
         Applicant filed his Application for An Original Writ of Habeas Corpus on February 3, 2015.
He alleges that Article 11.072 does not apply because “as of this date, Petitioner is not on and has not
been on community supervision (imposition of the probated sentence was suspended so long as the
case was on appeal).” However, Mandate issued on January 15, 2015. Therefore, Applicant’s
appellate process was, at that time, concluded, and his period of community supervision would have
begun.
       10
         Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 558-59
(Tex. Crim. App. 1989).
