Ex Parte Alan Nelson Crotts

Opinion issued December 2, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-21-00239-CR
———————————
EX PARTE ALAN NELSON CROTTS, Appellant

On Appeal from the County Court at Law No. 3
Fort Bend County, Texas
Trial Court Case No. 13-CCR-165781

MEMORANDUM OPINION

Appellant, Alan Nelson Crotts, challenges the trial court’s order denying his

second application for writ of habeas corpus.1 In his sole issue, appellant contends

that the trial court erred denying him habeas relief.

We affirm.

1
See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9.
 Background

A jury found appellant guilty of the misdemeanor offense of assault of a

family member.2 The trial court, pursuant to appellant’s post-verdict agreement with

the State, assessed appellant’s punishment at confinement for 365 days, suspended

the sentence, placed him on community supervision for twenty-four months, and

assessed a fine of $2,000. On direct appeal, we affirmed the trial court’s judgment

of conviction.3

On February 19, 2018, appellant filed his first application for writ of habeas

corpus under Texas Code of Criminal Procedure article 11.072.4 In his first

application, appellant argued that he was entitled to habeas relief because there was

newly-discovered evidence—certain photographs—that established his factual

innocence and the State’s witnesses testified falsely at trial. Appellant also asserted

that his trial counsel provided him with ineffective assistance and appellant was

prejudiced by his counsel’s deficient performance. According to appellant, his trial

counsel failed to: (1) “adequately challenge extreme[ly] prejudicial testimony”

given by the complainant and a law enforcement officer, (2) “present impactful

2
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b); see also TEX. CODE CRIM. PROC.
ANN. art. 42.013; TEX. FAM. CODE ANN. §§ 71.003–.004.
3
See Crotts v. State, No. 01-15-01108-CR, 2017 WL 3027657, at *1–7 (Tex. App.—
Houston [1st Dist.] July 18, 2017, pet. ref’d) (mem. op., not designated for
publication).
4
See TEX. CODE CRIM. PROC. ANN. art. 11.072.

2
witness testimony for the defense,” (3) “object to certain improper jury arguments

made by [the State],” and (4) call additional “witnesses available to testif[y] on

[appellant’s] behalf” at trial. In asserting that his trial counsel failed to object to the

State’s improper jury argument, appellant explained that the State, during its closing

argument, stated that the complainant “had nothing to gain by going into the police

department and reporting something that didn’t happen.” Appellant asserted that

this argument by the State constituted improper bolstering of the credibility of the

State’s witness: the complainant. And appellant’s trial counsel erred in not objecting

to that portion of the State’s jury argument.

On March 23, 2018, the trial court conducted a hearing on appellant’s first

habeas application. At the hearing, appellant presented the testimony of his trial

counsel, Richard Cobb. On November 28, 2018, the trial court denied appellant’s

requested habeas relief and issued findings of fact and conclusions of law. On

November 26, 2019, we affirmed the trial court’s order denying appellant habeas

relief.5

On February 9, 2021, appellant filed his second application for writ of habeas

corpus under Texas Code of Criminal Procedure article 11.072. 6 In his second

5
See Ex parte Crotts, No. 01-18-00666-CR, 2019 WL 6314906, at *1–9 (Tex.
App.—Houston [1st Dist.] Nov. 26, 2019, no pet.) (mem. op., not designated for
publication).
6
See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9.

3
application, appellant argued that he was entitled to habeas relief because there was

newly-discovered evidence—certain photographs—that established his factual

innocence, the State’s witnesses testified falsely at trial, and the above-mentioned

portion of the State’s closing argument constituted improper jury argument.

Appellant also asserted that his trial counsel provided him with ineffective assistance

and appellant was prejudiced by his counsel’s deficient performance. According to

appellant, his counsel failed to: (1) object to improper jury argument by the State,

(2) “call [certain] defense witnesses” to testify at trial, (3) “challenge [the] testimony

from [a State’s] witness,” (4) “investigate or challenge a ‘Brady Report’ from the

[State],” and (5) “discover . . . evidence that would have proven [that] the testimony

of a [State’s] witness was false.” Appellant acknowledged that his second

application for writ of habeas corpus constituted a “subsequent application” 7 and

asserted that he filed his second application for habeas corpus to “fulfill his

obligation to fully exhaust the state-level remedies before re-filing his federal habeas

petition.”

In response to appellant’s second application for writ of habeas corpus, the

State argued that appellant was not entitled to habeas relief because his second

application for writ of habeas corpus constituted a “subsequent application for writ

7
See id.

4
of habeas corpus” and was procedurally barred.8 According to the State, appellant,

in his first application for writ of habeas corpus, argued that he was entitled to habeas

relief because his trial counsel provided him with ineffective assistance of counsel,

there was newly-discovered evidence, and the State’s witnesses testified falsely at

trial. In his second application for writ of habeas corpus, appellant made the same

arguments and acknowledged that his second application was “in fact a subsequent

writ.” Relying on Texas Code of Criminal Procedure article 11.072, section 9, the

State argued that appellant’s second application for writ of habeas corpus, which

was filed after the final disposition of his first application, could not be considered

by the trial court because the application did not contain “sufficient specific facts

establishing that [appellant’s] current claims and issues ha[d] not been and could not

have been previously presented in [his first] application . . . because the factual or

legal basis for [his] claim[s] was unavailable on the date [he] filed [his first]

application.”9 According to the State, appellant made “no factual showing

whatsoever in his [second] application [for writ of habeas corpus] to explain why his

claims ha[d] not been and could not have been previously presented.” And, in

actuality, appellant’s claims in his second habeas application had been “presented

and . . . litigated” in his first application for writ of habeas corpus.

8
See id.
9
See id.

5
 The trial court denied appellant’s requested habeas relief and issued the

following findings of fact and conclusions of law:

Findings of Fact

1. [Appellant] was charged with the offense of [a]ssault, family
violence in cause 13-CCR-165781.

2. [Appellant] was represented by attorney . . . Cobb in the
underlying case.

3. [Appellant] proceeded to a jury trial and was convicted.

4. During the trial, [the complainant] testified that she had two
children with [appellant]. [The complainant] testified on the day in
question, [appellant] spit in her face and struck her with his hand,
causing her pain.

5. [The complainant’s father] also testified that he was present
during the assault. He testified that he saw [appellant] lunge toward
[the complainant]. [The complainant’s father] testified that he did not
see the “point of impact,” but when he was asked at trial what
[appellant] did, [he] testified, “Yeah, he hit her.”

6. Needville Police Department Officer Radar testified that this
incident took place right outside the police department, and when he
was summoned outside to investigate, he saw [the complainant] upset,
and saw saliva on her car, consistent with her testimony that [appellant]
spit on her.

7. State’s [E]xhibits 1 and 2 were admitted in evidence, being a
photo showing [the complainant’s] car with saliva on it and a photo of
[the complainant’s] face showing redness around her eye and
cheekbone.

8. [Officer] Radar testified that [appellant] told him that [he] “may
have accidentally hit” [the complainant] and [appellant] admitted to
spitting on her car.

6
9. The jury found [appellant] guilty, and pursuant to a
post-conviction agreement with the State, [appellant’s] punishment was
assessed at 24 months’ community supervision.

10. [Appellant] filed a direct appeal, and his conviction was
affirmed, and the petition for discretionary review he filed was refused.
Crotts v. State, No. 01-15-01108-CR, 2017 WL 3027657 (Tex. App.—
Houston [1st Dist.] Jul[y] 18, 2017, pet. ref’d) ([mem. op.,] not
designated for publication).

11. [Appellant] then filed a pro se [a]pplication for writ of habeas
corpus, alleging ineffective assistance of trial counsel,
newly[-]discovered evidence, and false testimony.

12. The [trial] [c]ourt held a hearing on [appellant’s] application on
March 23, 2018 before then-presiding Judge Susan Lowery.

13. [Appellant’s] trial counsel . . . Cobb appeared and testified.

14. The [trial] [c]ourt found . . . Cobb’s testimony credible.

15. The [trial] [c]ourt did not find [appellant’s] claims that the State’s
witnesses at trial perjured themselves to be credible.

16. The trial court did not find that there was any new, previously
undiscovered and undiscoverable evidence which would have had any
appreciable impact on the trial.

17. The trial court denied [appellant’s] request for relief on his [first]
application for writ of habeas corpus.

18. Th[e] [trial] [c]ourt’s denial of [appellant’s first] application for
writ of habeas corpus was affirmed on appeal. Ex parte Crotts, No.
01-18-00666-CR, 2019 WL 6314906 (Tex. App.—Houston [1st Dist.]
Nov. 26, 2019[,] no pet.) [(mem. op., not designated for publication)].

19. [Appellant] now brings this subsequent application for writ of
habeas corpus, in which he brings the same grounds for relief which he
brought in his previous application for writ of habeas corpus.
[Appellant] again argues that he should be granted relief because his
7
 trial counsel was ineffective, and there was newly[-]discovered
evidence establishing his factual innocence, and the State’s witnesses
testified falsely. . . .

20. [Appellant] acknowledged that [his second] application for writ
of habeas corpus is a subsequent writ, but argued that he should be able
to relitigate the issues [t]herein for various reasons.

Conclusions of Law

1. A subsequent application for writ of habeas corpus which is filed
after a final disposition of an initial application may not be considered
unless the application contains sufficient specific facts establishing that
the current claims and issues have not been and could not have been
previously presented in an original application under this article
because the factual or legal bas[es] for the claim[s] w[ere] unavailable
on the date the applicant filed the previous application. TEX. CODE
CRIM. PROC. [ANN.] art. 11.072, [§] 9(a).

2. The factual basis of a claim is unavailable if the factual basis was
not ascertainable through the exercise of reasonable diligence. TEX.
CODE CRIM. PROC. [ANN.] art. 11.072, [§] 9(c).

3. Because [appellant] raises the same claims he made in his
previous application, and these claims were fully litigated on the merits,
[appellant’s second] application is procedurally barred as a subsequent
writ. TEX. CODE CRIM. PROC. [ANN.] art. 11.072, [§] 9(a).

(Emphasis omitted.)

Standard of Review

Generally, an applicant seeking post-conviction habeas relief must prove his

claims by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865,

870 (Tex. Crim. App. 2002). In reviewing a trial court’s decision to deny habeas

relief, we view the facts in the light most favorable to the trial court’s ruling and will

8
uphold the trial court’s decision absent an abuse of discretion. Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App. 2006). But the generally applied

abuse-of-discretion standard is not appropriate when the trial court’s decision does

not turn on the credibility or demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524,

526 (Tex. Crim. App. 1999); Ex parte Nelson, 546 S.W.3d 742, 746–47 (Tex.

App.—Houston [1st Dist.] 2018, no pet.). When a trial court resolves an application

for writ of habeas corpus on an issue of law, we review the trial court’s ruling de

novo. Ex parte Martin, 6 S.W.3d at 526; Ex parte Nelson, 546 S.W.3d at 746–47.

We will affirm the trial court’s decision if it is correct on any theory of law applicable

to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001); Ex parte

Primrose, 950 S.W.2d 775, 778 (Tex. App.—Fort Worth 1997, pet. ref’d).

Subsequent Application

In his sole issue, appellant argues that the trial court erred denying him habeas

relief related to his second application for writ of habeas corpus because his “claims

ha[d] not been previously adjudicate[d] on the merits” “which left them open to be

re-filed.”

Texas Code of Criminal Procedure article 11.072 establishes the procedure

for an applicant to seek habeas corpus relief “from an order or a judgment of

conviction ordering community supervision.” TEX. CODE CRIM. PROC. ANN. art.

11.072, § 1; see also Ex parte Salazar, 510 S.W.3d 619, 625 (Tex. App.—El Paso

9
2016, pet. ref’d). Article 11.072 also places restrictions on an applicant’s ability to

file multiple applications for writs of habeas corpus. See TEX. CODE CRIM. PROC.

ANN. art. 11.072, § 9; see also Ex parte Salazar, 510 S.W.3d at 625; Ex parte

Weldezion, No. 05-13-00177-CR, 2013 WL 2390003, at *2–3 (Tex. App.—Dallas

May 29, 2013, no pet.) (mem. op., not designated for publication) (“The [Texas]

[C]ode of [C]riminal [P]rocedure limits the scope of issues that may be raised in a

subsequent application for writ of habeas corpus.”). As we have previously

explained, “[a]rticle 11.072 normally restricts habeas applicants to just one bite of

the apple.” Ex parte Nelson, 546 S.W.3d at 747 (internal quotations omitted).

As set out in Texas Code of Criminal Procedure article 11.072, section 9, after

a trial court considers and rejects an applicant’s first article 11.072 application for

writ of habeas corpus, the trial court may not consider a subsequent article 11.072

application unless the new application for writ of habeas corpus contains “sufficient

specific facts” “establishing that the current claims and issues ha[d] not been and

could not have been presented” in the previously considered application “because

the factual or legal bas[es] for the claim[s] w[ere] unavailable on the date the

applicant filed the previous application.” TEX. CODE CRIM. PROC. ANN. art. 11.072,

§ 9(a). Notably, it is the applicant’s burden to prove that his claims in his subsequent

application “ha[d] not been and could not have been presented” in his previously

considered application “because the factual or legal bas[es] for the claim[s] w[ere]

10
unavailable on the date [he] filed the previous application.” Id.; see also Ex parte

Nelson, 546 S.W.3d at 748; Ex parte Gomez, No. 14-16-00499-CR, 2017 WL

3158908, at *3 (Tex. App.—Houston [14th Dist.] July 25, 2017, pet. ref’d) (mem.

op., not designated for publication).

A legal basis is previously unavailable when, at the time of the previous

application, it was “not recognized by and could not have been reasonably

formulated from a final decision of the United States Supreme Court, a court of

appeals of the United States, or a court of appellate jurisdiction in this [S]tate.” TEX.

CODE CRIM. PROC. ANN. art. 11.072, § 9(b). A factual basis is considered previously

unavailable if it “was not ascertainable through the exercise of reasonable diligence

on or before” the date of the previous application. Id. art. 11.072, § 9(c). The trial

court’s rejection of an applicant’s first application for writ of habeas corpus is the

triggering event for article 11.072, section 9’s subsequent application restrictions.

Ex parte Nelson, 546 S.W.3d at 747; Ex parte Salazar, 510 S.W.3d at 625.

Here, appellant filed his first application for writ of habeas corpus on February

19, 2018, seeking habeas relief from the trial court’s 2015 judgment of conviction

placing appellant on community supervision. See TEX. CODE CRIM. PROC. ANN. art.

11.072, § 1; Crotts, 2017 WL 3027657, at *1 (explaining jury found appellant guilty

of misdemeanor offense of assault of family member and trial court, pursuant to

appellant’s post-verdict agreement with State, assessed his punishment at

11
confinement for 365 days, suspended the sentence, and placed appellant on

community supervision for twenty-four months). On November 28, 2018, the trial

court denied appellant’s first application for writ of habeas corpus. See Ex parte

Crotts, 2019 WL 6314906, at *1–9 (affirming trial court’s order denying habeas

relief sought in appellant’s first application for writ of habeas corpus); see also Ex

parte Salazar, 619 S.W.3d at 625 (article 11.072, section 9’s bar to subsequent

applications for writs of habeas corpus apply after trial court considers and rejects

initial article 11.072 application). On February 9, 2021, appellant filed his second

application for writ of habeas corpus, also seeking habeas relief from the trial court’s

2015 judgment of conviction placing appellant on community supervision. See TEX.

CODE CRIM. PROC. ANN. art. 11.072, § 1; Crotts, 2017 WL 3027657, at *1

(explaining jury found appellant guilty of misdemeanor offense of assault of family

member and trial court, pursuant to appellant’s post-verdict agreement with State,

assessed his punishment at confinement for 365 days, suspended the sentence, and

placed appellant on community supervision for twenty-four months). Appellant

acknowledged in his second application for writ of habeas corpus that it constituted

a “subsequent application.” See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a).

We agree that appellant’s second application for writ of habeas corpus is a

“subsequent application” under Texas Code of Criminal Procedure article 11.072,

section 9. Thus, to be entitled to habeas relief related to his second application,

12
appellant was required to overcome article 11.072, section 9’s subsequent

application restrictions by establishing, with “sufficient specific facts,” that his

claims in his second application had not been and could not have been presented

previously in his first application for writ of habeas corpus because the factual or

legal bases for the claims were unavailable on the date he filed his previous

application. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a); see also Ex parte

Cisneros, No. 04-18-00850-CR, 2019 WL 2194079, at *1–2 (Tex. App.—San

Antonio May 22, 2019, pet. ref’d) (mem. op., not designated for publication) (where

applicant’s 2010 and 2016 applications sought habeas relief from same order of

community supervision, 2016 application considered subsequent application under

article 11.072, section 9 and applicant required to overcome article 11.072, section

9’s subsequent application restrictions); Ex parte Nelson, 546 S.W.3d at 747–48.

Appellant’s second application for writ of habeas corpus does not contain any

specific facts establishing that his claims of newly-discovered evidence, false

testimony, improper jury argument, and ineffective assistance of counsel were not,

and could not have been, presented in his first application for writ of habeas corpus

because of an unavailable factual or legal basis. See TEX. CODE CRIM. PROC. ANN.

art. 11.072, § 9(a)–(c); see, e.g., Ex parte Cisneros, 2019 WL 2194079, at *1–2

(holding applicant not entitled to habeas relief related to subsequent application

where his “2016 [habeas] application d[id] not contain any specific facts establishing

13
his ineffective assistance issue was not, and could not have been, presented in his

prior [2010 habeas] application”); Ex parte Galvan-Herrera, No. 13-11-00380-CR,

2012 WL 1484097, at *5–7 (Tex. App.—Corpus Christi–Edinburg Apr. 26, 2012,

pet. ref’d) (because applicant’s “subsequent application included neither a factual

nor legal basis that was unavailable at the time of his initial application,” holding

“trial court was without jurisdiction to consider [the] subsequent application”); Ex

parte Phillips, No. 02-08-259-CR, 2008 WL 4531678, at *2–4 (Tex. App.—Fort

Worth Oct. 9, 2008, no pet.) (mem. op., not designated for publication) (holding trial

court did not err in denying applicant’s subsequent habeas application where

applicant “failed to demonstrate that the factual bases for the[] claims w[ere] not

ascertainable to him through the exercise of reasonable diligence on or before he

file[d] [his] initial application”). Instead, the majority of appellant’s claims asserted

in his second application were previously raised in his first application for writ of

habeas corpus. See Ex parte Crotts, 2019 WL 6314906, at *1 & n.5 (noting appellant

asserted, in his first application for writ of habeas corpus, that he was entitled to

habeas relief because there was newly-discovered evidence, State’s witnesses

testified falsely at trial, and his trial counsel provided him with ineffective

assistance); see, e.g., Ex parte Weldezion, 2013 WL 2390003, at *3–4 (holding trial

court did not err in denying second application for writ of habeas corpus where

applicant’s “complaint about his alleged mental incompetency was already

14
adjudicated in connection with his first [habeas] application”); Ex parte Phillips,

2008 WL 4531678, at *2–4 (holding trial court did not err in denying applicant’s

subsequent habeas application to extent applicant reasserted claims addressed in

previous application). To the extent that appellant raised any “new” claims in his

second application for writ of habeas corpus, nowhere in his second application did

appellant provide “sufficient specific facts” that his “new” claims “ha[d] not been

and could not have been presented” in his first application “because the factual or

legal bas[es] for the claim[s] w[ere] unavailable on the date [he] filed the previous

application.”10 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a); see also Salinas

v. State, No. 03-12-00117-CR, 2015 WL 1514604, at *2–3 (Tex. App.—Austin Mar.

25, 2015, no pet.) (mem. op., not designated for publication) (holding trial court did

not err in denying applicant’s subsequent habeas application where applicant “made

no attempt to explain why his argument about the missing reporter’s record could

not have been made in his previous writ application or why the facts supporting that

claim would not have been ascertainable then”). Appellant merely stated that he

10
Appellant also does not assert in his appellate briefing that he complied with Texas
Code of Criminal Procedure article 11.072, section 9 and his second application for
writ of habeas corpus contained sufficient specific facts “establishing that the
current claims and issues ha[d] not been and could not have been presented” in his
first application for writ of habeas corpus “because the factual or legal bas[es] for
the claim[s] w[ere] unavailable on the date [he] filed [his first] application.” TEX.
CODE CRIM. PROC. ANN. art. 11.072, § 9(a); see also TEX. R. APP. P. 38.1(i).
Appellant does not mention article 11.072 in his appellate briefing. See TEX. R.
APP. P. 38.1(i).

15
filed his second application for writ of habeas corpus to “fulfill his obligation to fully

exhaust the state-level remedies before re-filing his federal habeas petition.”

Because appellant did not meet his burden to prove that his claims in his

second application for writ of habeas corpus “ha[d] not been and could not have been

presented” in his previously considered first application as “the factual or legal

bas[es] for the claim[s] w[ere] unavailable on the date [he] filed the [first]

application,” appellant failed to comply with Texas Code of Criminal Procedure

article 11.072, section 9, and we hold that the trial court did not err in denying

appellant habeas relief.11 TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a); see also

Ex parte Nelson, 546 S.W.3d at 748 (to be entitled to habeas relief under article

11.072 after first habeas application denied, applicant has burden of proving that

claims in subsequent application had not been and could not have been presented in

previous application); Ex parte Gomez, 2017 WL 3158908, at *3.

We overrule appellant’s sole issue.

11
Because of our holding, we need not address any remaining arguments in appellant’s
briefing. See TEX. R. APP. P. 47.1.

16
 Conclusion

We affirm the order of the trial court.

Julie Countiss
Justice

Panel consists of Justices Hightower, Countiss, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).

17