            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. AP-75,912



                 EX PARTE JOSEPH ROLAND LAVE, JR., Applicant

   ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
            ON A PETITION FOR WRIT OF HABEAS CORPUS
                      CAUSE NO. WR-44,564-02
               ND
     IN THE 282 JUDICIAL DISTRICT COURT OF DALLAS COUNTY

       Per curiam. K ELLER, P.J., and P RICE, J., not participating.

                                       OPINION

       This is a subsequent application for writ of habeas corpus filed pursuant to Texas

Code of Criminal Procedure, Article 11.071, Section 5, on remand from the United States

Supreme Court.

       Applicant was convicted of capital murder on March 29, 1994. We affirmed the

conviction and sentence on direct appeal.1 On January 26, 1998, applicant filed his initial




       1
         Lave v. State, No. AP-71,897 (Tex. Crim. App. Nov. 20, 1996) (not designated for
publication).
                                                                                     Lave       Page 2

application for writ of habeas corpus pursuant to Article 11.071. We denied relief.2

       In his subsequent application (the one now on remand), applicant alleged that he was

denied the right to confront witnesses against him in trial.3 He admitted that the legal basis

for his claim depended on this Court overruling its previous opinion in Ex parte Keith,4 in

which we held that Crawford v. Washington 5 would not be applied retroactively in a Texas

state-court collateral proceeding. Because applicant had not asserted that a new, previously

unavailable, legal basis existed when he filed his subsequent application, this Court held that

he had failed to show that he was entitled to review of his subsequent claim under Article

11.071, Section 5(a)(1). We dismissed the application as an abuse of the writ and denied his

motion for stay of execution.6

       Applicant then filed a petition for a writ of certiorari and an application for stay of

execution in the United States Supreme Court.7 The district court in Dallas County withdrew



       2
         Ex parte Lave, No. WR-44,564-01 (Tex. Crim. App. Sept. 20, 2000) (not designated for
publication).
       3
          See Lave v. Dretke, 444 F.3d 333, 334 (5th Cir. 2006) (“At Lave's capital murder trial,
Officer Kevin Hughes, one of the state's witnesses, testified as to a statement by one of Lave's
alleged accomplices. In the course of an interrogation, the accomplice told Officer Hughes that
Lave committed the murder.”), cert. denied sub nom. Lave v. Quarterman, 127 S. Ct. 1482
(2007).
       4
           202 S.W.3d 767 (Tex. Crim. App. 2006).
       5
           541 U.S. 36 (2004).
       6
         Ex parte Lave, No. WR-44,564-02, 2007 Tex. Crim. App. Unpub. LEXIS 457, *1-2
(Tex. Crim. App. Sept. 7, 2007) (not designated for publication).
       7
           Petition for Writ of Certiorari, Lave v. Texas, No. 07-6393 (U.S. Sept. 10, 2007).
                                                                               Lave     Page 3

the order setting an execution date. On February 25, 2008, the Supreme Court granted

applicant’s petition for a writ of certiorari, vacated this Court’s judgment, and remanded the

case to this Court8 for further consideration in light of Danforth v. Minnesota.9

       In Whorton v. Bockting,10 the Supreme Court made clear that federal law does not

require state courts to apply the holding in Crawford to cases that were final when Crawford

was decided. In Danforth, the Supreme Court granted certiorari to consider whether Teague

or any other federal rule of law prohibits them from doing so. The answer was no:

       New constitutional rules announced by this Court that place certain kinds of
       primary individual conduct beyond the power of the States to proscribe, as
       well as “watershed” rules of criminal procedure, must be applied in all future
       trials, all cases pending on direct review, and all federal habeas corpus
       proceedings. All other new rules of criminal procedure must be applied in
       future trials and in cases pending on direct review, but may not provide the
       basis for a federal collateral attack on a state-court conviction. This is the
       substance of the “Teague rule” described by Justice O'Connor in her plurality
       opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed. 2d 334
       (1989). The question in this case is whether Teague constrains the authority
       of state courts to give broader effect to new rules of criminal procedure than
       is required by that opinion. We have never suggested that it does, and now
       hold that it does not.11

That is, federal law neither requires state courts to apply the holding in Crawford to cases

that were final when that case was decided, nor prohibits them from doing so.




       8
           Lave v. Texas, 128 S.Ct. 1442 (2008).
       9
            128 S.Ct. 1029 (2008).
       10
            127 S.Ct. 1173 (2007).
       11
            Danforth,128 S.Ct. at 1032-33 (footnote omitted).
                                                                                 Lave     Page 4

       In Taylor v. State,12 which predated both Bockting and Danforth, we had held that

“The Supreme Court’s retroactivity analysis for federal constitutional errors is binding upon

the states when federal constitutional errors are involved . . . . Conversely, Griffith and

Teague do not bind the states on the retroactivity of new rules under state law.” 13 Thus, in

Ex parte Keith–which this Court decided before either Bockting or Danforth were

decided–we applied Teague and held that because the Crawford rule does not necessarily

improve the trial court's truth-finding capabilities, nor seriously diminish the likelihood of

an accurate conviction, it is not subject to the Teague exception and does not apply

retroactively to cases on collateral review.14 In Bockting, the Supreme Court held, as we had

already held in Keith, that the Crawford rule did not meet the Teague exception. And in

Danforth, the Supreme Court held that state courts are not required to follow the federal

retroactivity principles expressed in Teague.

       Although not required by the United States Supreme Court to do so, we adhere to our

retroactivity analysis in Keith and its holding that Crawford does not apply retroactively to

cases on collateral review in Texas state courts.15 We again dismiss this subsequent


       12
            10 S.W.3d 673 (Tex. Crim. App. 2000).
       13
            Id. at 679.
       14
            202 S.W.3d at 771.
       15
          But see Ex parte John Avalos Alba, ___ S.W. ___, No. AP-75,510, 2008 Tex. Crim.
App. LEXIS 691, at 47-48 n. 35 (Tex. Crim. App. June 9, 2008) (Price, J., dissenting) (“To the
extent that this assertion [that Article 11.071 is not available to remedy some potential future
constitutional violation] embraces a notion that constitutional violations that have not already
been firmly established in case law are not cognizable in habeas corpus, this pronouncement, for
                                                                                    Lave     Page 5

application for writ of habeas corpus under Texas Code of Criminal Procedure, Article

11.071, Section 5.16




Delivered:      June 25, 2008

Publish




which no authority is cited, sounds vaguely like the federal restriction on the cognizability of new
claims in habeas corpus embodied in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.
2d 334 (1989). But the Teague rule is also grounded in principles of comity and deference to
state courts, which have no application in state habeas corpus jurisprudence. Cf. Danforth v.
Minnesota, 552 U.S. ___, 128 S.Ct. 1029, 1041, 169 L.Ed. 2d 859 (2008) (‘If anything,
considerations of comity militate in favor of allowing state courts to grant habeas corpus relief to
a broader class of individuals than is required by Teague.’). I am not aware that we have ever
adopted such a rule of cognizability in Texas.”). Ex parte Heliberto Chi, ___ S.W. ___, No.
AP-75,930/931, 2008 Tex. Crim. App. LEXIS 690, at *34-35 n. 35 (Tex. Crim. App. June 9,
2008) (Price, J., dissenting) (same).
       16
            We also deny applicant’s motion for setting a briefing schedule and oral argument.
