IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,063-01
EX PARTE ELMER HOWARD WHISENANT, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F34688 A IN THE 249TH DISTRICT COURT
FROM JOHNSON COUNTY
K EASLER, J., filed a dissenting statement, in which H ERVEY, J., joined.
DISSENTING STATEMENT
This application does not warrant a remand for findings of fact and conclusions of law
from the habeas court. Howard Whisenant’s counsel is gaming the system. He admits as
much. This deficiently pleaded application should be denied with a warning to counsel.
Whisenant alleged, among other things, a false-evidence claim. His application
contained only conclusory false-evidence claims and did not include affidavits from
recanting witnesses. In a motion to remand to the habeas court filed in this Court,
Whisenant’s counsel said he made a strategic decision not to include the affidavits and
WHISENANT DISSENTING STATEMENT—2
declarations with his application. “If the declarations/affidavits were filed with the writ,” he
wrote, “Counsel felt the likelihood of not receiving a live hearing would increase greatly.
Counsel was waiting for the order designating issues before filing Applicant’s evidence.”
The motion was denied, but done so in a written order that charitably noted that, if he wanted
the affidavits to be considered, they should be filed in the convicting court. Counsel
followed the advice, and the affidavits were forwarded here. The affidavits are from five of
Whisenant’s children claiming that a portion of their trial testimony was false. Only one
child—Janey Ingram—was a complainant listed in two burglary counts in Whisenant’s
indictment, and she does not recant her testimony concerning the burglaries.
Even with the affidavits, Whisenant’s application, prepared by counsel, does not
adequately explain why he is entitled to relief. In his first false-evidence claim he stated as
facts in support that “the [children] were pressured and coached by their mother, Applicant’s
ex-wife, to testify falsely,” and that she made up different stories for the children to say. The
face of the application does not say what those stories were and what specific testimony was
false. He has further failed to make even some showing that he is legally entitled to relief.
Like we said in Ex parte Medina, proper pleading includes answering the question “How, if
at all, was applicant harmed?”1 Whisenant’s application does not explain the falsities, much
less why these falsities were material.2 There is only a conclusory statement that the
1
Ex parte Medina, 361 S.W.3d 633, 641 (Tex. Crim. App. 2011).
2
Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).
WHISENANT DISSENTING STATEMENT—3
children’s “stories had a substantial emotional impact on the jury and contributed to
[Whisenant’s punishment].” Without a memorandum of law explaining this, we are left only
with a bare, conclusory assertion. In doing so, he leaves it to this Court to examine the
affidavits, review the entire trial transcript, parse out the allegedly false testimony, and then
determine whether the affidavits, if true, are material by evaluating these falsities in light of
the entire record. In short, Whisenant’s counsel leaves it to us to make his case for his client.
We require more in an application and more from habeas counsel.
Remanding this application for further factual development and findings and
conclusions rewards counsel’s admitted use of a deficient application to increase his chances
of receiving an evidentiary hearing—similar behavior that this Court expressly condemned
in Ex parte Medina. Counsel would do well to avoid this course of representation of habeas
applicants in the future; it may not always result in such a favorable outcome, and an
applicant’s avenue for relief hangs in the balance.
DATE FILED: June 3, 2015
DO NOT PUBLISH