IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,188-01
EX PARTE PHILLIP TIMOTHY DENNIS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. W14-33270-L(A)
IN CRIMINAL DISTRICT COURT NO. 5
FROM DALLAS COUNTY
NEWELL, J. delivered the opinion for a unanimous Court.
If a defendant files his application for post-conviction habeas
corpus relief alleging that he is physically confined pursuant to his
conviction, must he further allege collateral consequences that flow from
his conviction? No. We filed and set this application to determine the
appropriate disposition in light of Applicant’s pleadings. One possible
disposition is to dismiss the application pursuant to our decision in Ex
parte Harrington. This would afford Applicant leave to re-file so that
Applicant could allege in his writ application that he was not only
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convicted and sentenced to a term of confinement, but that he also
suffered collateral consequences of his conviction. Another possible
disposition would be to treat Applicant’s pleadings as sufficient when
they were filed and consider the merits of Applicant’s claims.
We believe the latter approach is better. Applicant’s pleadings at
the time they were filed sufficiently alleged that Applicant was confined
(as that term is defined under Article 11.07 of the Code of Criminal
Procedure) by virtue of his serving the sentence on his felony conviction.
That his sentence discharged during the pendency of his writ did not
retrospectively render his pleadings insufficient. Consequently, we will
address the merits of his claims.
Background
In 2017, Applicant was convicted of felony driving while
intoxicated, and sentenced to three years’ imprisonment. In 2018, he
filed an application for writ of habeas corpus alleging that trial counsel
was ineffective for failing to investigate whether Applicant’s prior
Arkansas DWI conviction should have been used as a jurisdictional
enhancement in this case. Upon receiving the 2018 application we
remanded the case, but we did not receive the supplemental record with
findings of fact and conclusions of law from the habeas court until 2020.
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Applicant’s sentence discharged in 2019 while his writ application was
pending.
Analysis
The writ of habeas corpus, which Sir William Blackstone called the
most celebrated writ in the English law, and others have named “the
great writ of liberty,” is ancient. 1 There are references to its use prior
to the signing of Magna Carta, and it was formally adopted in the Habeas
Corpus Act of 1679. 2 The writ was developed to protect against
executive detention; its function was to block imprisonment by royal fiat
without a judicial hearing. 3 The writ was not an appeal device after
conviction by a “legal,” competent tribunal, but rather an extraordinary
remedy against executive detention. 4 Today, the writ is available only
for relief from jurisdictional defects and violations of constitutional or
fundamental rights. 5
1
Ex parte Lawson, 966 S.W.2d 532, 533 (Tex. App.—San Antonio 1996, pet. ref’d),
superseded on other grounds.
2
Id.
3
Neil Douglas McFeeley, The Historical Development of Habeas Corpus, 30 SOUTHWESTERN
L.J. 585 (1976).
4
Id.
5
Ex parte McCain, 67 S.W.3d 204, 207 (Tex. Crim. App. 2002).
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The Texas Code of Criminal Procedure sets forth the following
definition for the writ of habeas corpus:
“The writ of habeas corpus is the remedy to be used when any
person is restrained in his liberty. It is an order issued by a court
or judge of competent jurisdiction, directed to anyone having a
person in his custody, or under his restraint, commanding him to
produce such person, at a time and place named in the writ, and
show why he is held in custody or under restraint.” 6
Because of the unique nature of the remedy, habeas corpus relief is
underscored by elements of fairness and equity. 7 These elements of
fairness and equity are protected by the United States Constitution, 8
and the Texas Constitution commands that the privilege of the writ of
habeas corpus shall never be suspended. 9 Further, Article 11.04 of the
Texas Code of Criminal Procedure instructs that we are to construe
every provision relating to the writ of habeas corpus most favorably to
give effect to the remedy and protect the rights of the person seeking
relief under it. 10
Article 11.07 and Ex parte Harrington
6
TEX. CODE CRIM. PROC. art. 11.01.
7
Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).
8
U.S. CONST. art. I, § 9, cl. 2.
9
TEX. CONST. art. I, § 12.
10
TEX. CODE CRIM. PROC. art. 11.04.
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For a court to consider an application for writ of habeas corpus,
the writ application must be complete on its face. Texas law has long
required all post-conviction applicants for writs of habeas corpus to
plead specific facts which, if proven to be true, might call for relief. 11
Post-conviction writ applicants must allege specific facts so that anyone
reading the writ application would understand precisely the factual basis
for the legal claim. 12 When an applicant fails to do so, all requested
relief is denied. 13
Article 11.07 of the Texas Code of Criminal Procedure sets forth
the procedures for an application for writ of habeas corpus in which the
applicant seeks relief from a felony judgment imposing a penalty other
than death. 14 Prior to 1995, Article 11.07 did not define “confinement,”
and this Court repeatedly held that the statute provided relief only for
11
See, e.g., Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (“In a
postconviction collateral attack, the burden is on the applicant to allege and prove facts which,
if true, entitle him to relief.”).
12
See, e.g., Ex parte Tovar, 901 S.W.2d 484, 485-86 (Tex. Crim. App. 1995) (“In order to
be entitled to post conviction collateral relief the applicant must raise a question of
constitutional magnitude, alleged facts establishing the constitutional violation and, if
appropriate, prove he was harmed.”).
13
See, e.g., Ex parte Akhtab, 901 S.W.2d 488, 490 (Tex. Crim. App. 1995) (“Because
applicant does not allege or prove facts which, if true, would entitle him to relief, all requested
relief is denied.”)
14
TEX. CODE CRIM. PROC. art. 11.07(1)(c).
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those in custody. 15 In 1995, the Legislature amended Article 11.07 to
explicitly include collateral consequences in the definition of
“confinement.” 16 As amended, Article 11.07 now defines “confinement”
as “confinement for any offense or any collateral consequence resulting
from the conviction . . . [.]” 17
In Ex parte Harrington, we considered the implications of this
amendment to Article 11.07. 18 After his sentence was discharged,
Harrington filed an application for writ of habeas corpus alleging an
involuntary plea due to ineffective assistance of counsel. Despite the
fact that the applicant was no longer in custody at the time he filed his
application, he claimed he was confined under Article 11.07 as a result
of present and future collateral consequences arising from his
challenged conviction. 19 There, we held that a person who has
discharged his sentence prior to filing an application, but who continues
to suffer collateral consequences arising from the challenged conviction,
15
Ex parte Renier, 734 S.W.2d 349 (Tex. Crim. App. 1987).
16
Acts of May 24, 1995, 74th Leg., R.S., ch. 319, § 5, sec. 3(c), 1995 Tex. Gen. Laws 2764,
2771 (eff. Sept. 1, 1995) (current version at TEX. CODE CRIM. PROC. art. 11.07, § 3(c)).
17
TEX. CODE CRIM. PROC. art. 11.07(3)(c).
18
Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010).
19
Id at 458.
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is entitled to seek post-conviction habeas relief under Article 11.07. 20
We came to this conclusion after we determined that the record
supported the trial judge's findings concerning adverse consequences to
the applicant's present and future employment opportunities. 21 And to
the extent that the trial court made findings regarding possible future
collateral consequences, those findings were unnecessary to our holding
given that Harrington had sufficiently alleged and proven adverse
present collateral consequences flowing from his conviction. 22
Applicant’s Pleadings Are Sufficient
As discussed above, Article 11.07 as it has been amended now
defines confinement as including both confinement pursuant to a
conviction and any collateral consequences that flow from a conviction.
Given this definition, an applicant need not plead a collateral
consequence of the conviction if, at the time of the pleading, the
defendant is seeking relief from a conviction for which he is confined.
Under those circumstances, the applicant has necessarily pleaded
specific facts regarding his confinement, that, if proven true, would
20
Id.
21
Id at 457–58.
22
Id. at 455–56 (listing five past or present collateral consequences and three future
collateral consequences).
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entitle him to relief (assuming the applicant has also pleaded specific
facts to support a cognizable and meritorious claim).
In this case, Applicant was serving his sentence when he filed the
application, thus there was no need for him to plead collateral
consequences at the time he filed his application. By alleging that he
was confined pursuant to his conviction, Applicant alleged facts that, if
true, would establish confinement as defined in Article 11.07. Pleading
collateral consequences was unnecessary, and dismissal to give
Applicant an opportunity to correct the deficiency would be unnecessary.
Had Applicant filed his application after he had served his sentence,
Applicant would have been required under Ex parte Harrington to
specifically allege that he suffered collateral consequences from his
conviction.
Applicant’s Ineffective Assistance of Counsel Claim
In his application, Applicant contends that he received ineffective
assistance of trial counsel. Applicant claims that his trial counsel failed
to investigate whether Applicant’s prior Arkansas DWI conviction should
have been used as a jurisdictional enhancement in this case. Having
considered the habeas court’s findings, we agree and conclude that
Applicant’s claim is without merit.
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In an ineffective assistance claim, the applicant must prove that
counsel erred and that the error prejudiced the defense. 23 An attorney's
deficient performance prejudices an accused when there is a reasonable
probability that the outcome of the trial would have been different but
for counsel's deficiency. 24 One necessary facet of professional
assistance is the investigation of the facts and law applicable to a case. 25
Under Strickland, counsel has a duty in every case to make a reasonable
investigation or a reasonable decision that an investigation is
unnecessary. 26 When an Applicant raises the claim that counsel was
ineffective for failing to investigate, he must show what a more in-depth
investigation would have shown. 27
The habeas court recommends denying relief. Applicant’s case
was straightforward, and the evidence against him was substantial.
According to trial counsel’s affidavit, trial counsel met with Applicant,
and Applicant did not like the legal opinion his trial counsel provided
him. Applicant’s trial counsel discussed with him in detail the
23
Strickland v. Washington, 466 U.S. 668, 687 (1984).
24
Cox v. State, 389 S.W.3d 817, 81 (Tex. Crim. App. 2012).
25
Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013).
26
Id. (citing Strickland, 466 U.S. at 691).
27
Mooney v. State, 817 S.W.2d 693, 697 (Tex. Crim. App. 1991).
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jurisdictional paragraphs in the indictment that described Applicant’s
prior DWI convictions. At no point did Applicant take issue with either
jurisdictional paragraph. The trial court found trial counsel’s affidavit
credible.
Applicant signed a judicial confession stipulating to the evidence,
including the jurisdictional paragraphs alleging the previous Arkansas
DWI. Though Applicant claims in his writ application that he was never
previously convicted of a DWI in Arkansas, the record shows that
Applicant was sentenced to seven days in jail and a $750.00 fine in 2005
in the Benton County, Arkansas District Court after entering a plea of
guilty to DWI Second Offense. We agree with the habeas court’s
findings and conclusions. We deny relief.
Conclusion
When Applicant filed his application for writ of habeas corpus, he
was still actively serving his sentence. We will construe Article 11.07
favorably in order to protect the rights of the person seeking relief under
it as Article 11.04 instructs. Thus, we conclude that Applicant was not
required to plead collateral consequences because his pleadings were
sufficient at the time that he filed the application. Having reached the
merits of Applicant’s claim, we hold that Applicant has failed to satisfy
the first Strickland prong. We therefore deny relief.
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Filed: December 21, 2022
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