IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM BEXAR COUNTY
I join the Court's order dismissing the subsequent application.
Ruiz asks us not to apply the statutory restriction on subsequent applications. (1) He alleges that he was denied effective assistance of counsel when his trial attorneys failed to present certain evidence at the punishment hearing, and his habeas counsel did just as badly by failing to raise that claim in his first application. In such circumstances, he argues, the restriction on subsequent applications cannot be used to leave an applicant without a remedy.
I think this is a serious and unresolved question, but it is not presented in this case.
The evidence in question was of two kinds: certain facts about the applicant's experiences during childhood and the opinion of a psychologist. Trial counsel hired the psychologist, considered his report, and chose not to call him at trial because his findings about the applicant would do more harm than good. This was not an unreasonable decision.
The application does not allege that counsel knew of the facts about the applicant's childhood, nor does it demonstrate that counsel would have been unreasonable to decide that such facts would have been more harmful than helpful when the jury considered the issue of the applicant's being likely to commit criminal acts of violence in the future.
Therefore, it seems to me, we do not reach the question: whether the unreasonable failure of a first habeas application to present meritorious claims could ever be surmounted in the courts of this state.
Filed July 6, 2007.
Do not publish.
1.