





 



IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

 



NO. WR-54,071-03


EX PARTE JOHN LEZELL BALENTINE, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 39,532-D FROM THE

320TH DISTRICT COURT OF POTTER COUNTY



 Price, J., filed a dissenting statement in which Johnson and Alcala, JJ.,
joined.

DISSENTING STATEMENT


	This is a second subsequent application for writ of habeas corpus, brought under the
auspices of Article 11.071 of the Texas Code of Criminal Procedure. (1)  In it, the applicant
alleges, just as he did in his first subsequent writ application, that his death sentence is
constitutionally tainted by the ineffectiveness of his trial counsel at the punishment phase of
his trial.  Now, as then, he alleges that trial counsel failed to investigate the existence of fairly
substantial mitigation evidence--as he was constitutionally obligated to do under Wiggins
v. Smith. (2)  Out of deference to this Court's opinion in Ex parte Graves, (3) I voted to dismiss
the applicant's first subsequent writ application. (4) 
	Just this past Monday, however, the United States Supreme Court granted certiorari
review of an Arizona case that significantly calls into question the premise of Graves that
post-conviction habeas applicants have no constitutional right to the effective assistance of
counsel, at least for claims that can be raised for the first time only on collateral attack. (5)  The
applicant has filed a motion to stay his execution pending the Supreme Court's resolution of
that question.  Without comment or elaboration, the Court today nevertheless simply
dismisses the applicant's second subsequent writ application as an abuse of the writ under
Article 11.071, Section 5.  As I did recently in Cleve Foster's and Cary Kerr's subsequent
state applications for writ of habeas corpus, (6) I dissent in this case to the Court's refusal to
take up the issue squarely presented here.  I would either file and set the applicant's
subsequent writ application to decide the continuing vitality of Graves, as framed in my
dissenting statement in Foster, (7) or I would stay the applicant's execution so that we may at
least preserve the status quo, possibly to revisit the issue in light of whatever disposition the
Supreme Court may make of Martinez.
	Because the Court will not, I once again dissent.

FILED:	June 14, 2011
DO NOT PUBLISH
1. 	 Tex. Code Crim. Proc. art. 11.071.
2. 	 539 U.S. 510 (2003).
3. 	 70 S.W.3d 103 (Tex. Crim. App. 2002).
4. 	 Ex parte Balentine, 2009 WL 3042425 (Tex. Crim. App., Nos. WR-54071-01 & WR-54071-02, decided Sept. 22, 2009) (not designated for publication).
5. 	 Martinez v. Ryan, __ S.Ct. __, 2011 WL 380903, No. 10-1001 (June 6, 2011).  The question
presented in Martinez is: "Whether a defendant in a state criminal case who is prohibited by state
law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a
state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional
right to effective assistance of first post-conviction counsel specifically with respect to his
ineffective-assistance-of-trial-counsel claim."  While defendants in criminal cases in Texas are not
legally prohibited from challenging the effectiveness of their trial counsel on direct appeal, such
claims typically call for extensive factual development beyond what is disclosed in the appellate
record, and thus, as a practical matter, post-conviction habeas corpus is the first opportunity to raise
them.  Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).
6. 	 Ex parte Foster, 2010 WL 5600129 (Tex. Crim. App., No. WR-65,799-02, decided Dec. 30,
2010) (not designated for publication) (Dissenting Statement of Price, J.);  Ex parte Kerr, __ S.W.3d
__, 2011 WL 1644141 (Tex. Crim. App. 2011) (Dissenting Statement of Price, J.).
7. 	 See Ex parte Foster, supra, at *2 ("I would stay the applicant's execution in this cause and
file and set it to examine two questions:  First, whether we should regard a colorable claim of
ineffective assistance of original habeas counsel as a newly available fact for purposes of [Article
11.071,] Section 5(a)(1) and (e); or, failing that, whether we should recognize a claim of ineffective
assistance of original habeas counsel as, at least, a non-statutory gateway for raising discrete
constitutional claims that would otherwise be barred under Article 11.071, Section 5.").
