              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


                           K ELLER, 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



       1
           Court’s op. at 54.
                                                                                              REED — 2

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




        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.
                                                                                            REED — 3

        The Court’s citations to Ex parte Simpson,8 Ex parte Adams,9 and Ex parte Young10 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




        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.
                                                                                             REED — 4

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


        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.
                                                                                          REED — 5

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


       20
            Court’s op. at 55 (emphasis mine).
       21
            Id. at 56.
       22
            Id. at 57.
                                                                                        REED — 6

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
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