Opinion
No. WR-52,975-08
02-22-2023
EX PARTE Victor Anthony CHARLES, Applicant
Yeary, J., filed a dissenting opinion in which Keller, P.J., and Keel and Slaughter, JJ., join.
In 2011, Applicant was convicted of being a felon in possession of a weapon and was sentenced to thirty-five years’ imprisonment. The First Court of Appeals affirmed his conviction. Charles v. State , No. 01-11-00084-CR (Tex. App.—Houston [1st Dist.] Oct. 10, 2013) (not designated for publication). In December of 2022, Applicant filed this application for writ of habeas corpus in the county of conviction. TEX. CODE CRIM. PROC . art. 11.07. In his application, he alleges that the State presented false testimony at trial, in violation of Applicant's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. To support his false testimony claim, he offers an affidavit from Gwendolyn Sanders, a witness for the State at trial. Sanders signed the affidavit on April 26, 2021, and in the affidavit, she recants her trial testimony. Today the Court remands to the convicting court for that court to develop the record and consider the merits of Applicant's claim.
But this current application is not Applicant's first post-conviction application for writ of habeas corpus challenging his possession of a weapon conviction. In May of 2014, Applicant filed an application for writ of habeas corpus challenging the same conviction but alleging that he was denied counsel during a critical stage. This Court denied Applicant's previous application. Consequently, because Applicant has already enjoyed his presumed "one bite at the apple," he has the burden of overcoming the hurdle placed in the way of subsequent writ applications by Section 4 of Article 11.07 of the Texas Code of Criminal Procedure :
(a) 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:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.
TEX. CODE CRIM. PROC . art. 11.07 § 4. The Court's order does not explain how Applicant satisfied Section 4. Presumably, the Court believes Applicant has met the requirements, since the Court remands to the convicting court with an order to consider the merits of Applicant's false testimony claim.
But I disagree. The convicting court concluded that the Applicant has not alleged sufficient specific facts to satisfy Section 4 of Article 11.07. I agree with the convicting court. On the part of the application form that asks applicants to explain why the merits of a subsequent application should be considered, Applicant simply states that "newly discovered evidence" is being presented in his present application. He does not address Section 4 of Article 11.07 anywhere else in his application. Within the terms of Section 4, Applicant's claim seems to be that his current false testimony claim could not have been presented in a previous application because his current claim is based upon a witness recantation affidavit that did not exist at the time that he filed his earlier application.
However, the bare fact that a recantation affidavit has been generated since an applicant filed a previous application for writ of habeas corpus does not seem to be enough for an applicant to satisfy Section 4 ’s requirement that an applicant both plead and ultimately prove facts entitling him to proceed to the merits. The statute does not simply ask whether the evidence that an applicant attaches to his subsequent application was unavailable at the time of an earlier application. The statute asks whether the factual basis of the new claims was unavailable at the time he filed his previous application. And critically, the statute specifically defines what it means for the factual basis to be unavailable, explaining that "a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date." TEX. CODE CRIM. PROC . art. 11.07 § 4(c) (emphasis added).
Under the clear terms of the statute, in order to get a second bite at the apple, Applicant has the burden to allege and demonstrate not simply that the recantation affidavit did not exist at the time that he filed his previous application. Applicant must allege and prove sufficient specific facts demonstrating that the recantation affidavit, or any other evidence showing false testimony, could not have been discovered at the time Applicant filed his previous application, even if Applicant had exercised reasonable diligence to find it. See Miles v. State , 359 S.W.3d 647, 667 (Tex. Crim. App. 2012) (holding that the applicant's actual innocence claim was not procedurally barred and acknowledging that, under Section 4 of Article 11.07, it was not simply the date that the recantation affidavit was signed that was relevant, but the fact that "[n]othing in the record indicat[ed] that [the witness] would have recanted earlier").
Applicant does not allege any facts showing that the recantation affidavit could not have been obtained with the exercise of reasonable diligence at the time he filed his previous application in 2014. Applicant only presents a recantation affidavit that was signed after he filed his previous application, and he simply alleges that it is "newly discovered evidence." It appears that Applicant believes, and this Court now apparently accepts (uncritically in my opinion), that Applicant can merely assert the naked fact of a new affidavit's existence and depend on the Court to figure out whether the recantation affidavit, or other evidence showing false testimony, was previously "unavailable" under Section 4 of Article 11.07.
But as this Court continuously warns applicants, "[i]n a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief." Ex parte Maldonado , 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). In the context of a subsequent application for writ of habeas corpus, this pleading burden means that the application must "contain[ ] sufficient specific facts" to show the Court that one of the exceptions listed in Section 4 is met. TEX. CODE CRIM. PROC . art. 11.07 § 4(a). It could very well be true that Applicant could not have obtained this witness's recantation earlier, even with the exercise of reasonable diligence. But it is Applicant's job to explicitly tell us that that is the case and to explain to us why that is the case. This Court should not overlook Applicant's statutory obligation to demonstrate that his claim satisfies the gateway established in Section 4(a).
Because Applicant does not meet his burden to ensure that his application "contains sufficient specific facts establishing" the requirements of Section 4(a) of Article 11.07, this Court should simply dismiss this application. Because the Court does not, I respectfully dissent.