Ex Parte Rawlinson

PRICE, Judge,

dissenting.

Applicant filed this post-conviction application for a writ of habeas corpus in the trial court, which was then forwarded to this Court pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Tex.Code CRiM. Peoc. Ann. art. 11.07, § 3(c) (Vernon Supp.1997).1 In 1980, Applicant was convicted of burglary of a habitation and sentenced to ninety-nine (99) years in prison. Applicant’s counsel filed a notice of appeal but failed to take further action on the appeal. No direct appeal was filed.

Here, Applicant contends that he was denied the effective assistance of counsel on appeal because applicant’s counsel abandoned his appeal without notifying him. The majority holds that applicant’s writ is procedurally barred under Section 4 of Article 11.07 because this writ represents applicant’s second challenge to his conviction. Consequently, they dismiss applicant’s writ.

Believing that the majority’s definition of a “challenge to a conviction” under Section 4 of Article 11.07 is overly narrow, I dissent.

I. Applicant’s Claims

This is Applicant’s second application under Article 11.07 pertaining to this cause. In his first application, applicant claimed his judgment reflected an erroneous affirmative finding of a deadly weapon. We granted relief and ordered the deletion of the affirma*202tive finding. Ex parte Rawlinson, 807 S.W.2d 752 (Tex.Crim.App.1991).

On September 17,1996, Applicant filed the instant application in the trial court. In it, he contends that he was denied the effective assistance of counsel when counsel abandoned applicant’s appeal without informing applicant. The trial court made no findings of fact or conclusions of law and entered no recommendation on applicant’s writ. This Court received applicant’s writ on November 1,1996.

II. Article 11.07’s Section Four Procedural Bar

To avoid the procedural bar of Section 4 of Article 11.07, applicant argues in his application that a prior writ contesting an erroneous affirmative finding “was not an attack on the legality of the conviction.” He also claims that this is not a subsequent writ because his initial writ was filed prior to the effective date of Section 4 of Article 11.07. Lastly, he contends that Section 4 does not bar this application since he believed his direct appeal was pending when he filed his initial writ.

A. Defining “Challenge to a Conviction”

We filed and set this cause to determine whether the instant application is barred by Article 11.07, § 4. Specifically, we must determine whether, under § 4, Applicant’s “initial application challeng[ed] the same conviction” as the instant application, since the initial application pertained only to Applicant’s erroneous affirmative finding.

Article 11.07, § 4, provides in pertinent part as follows:

Sec. 4. (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.

Art. 11.07, § 4(a)(1) & (2). (emphasis added).

The starting point in analyzing the meaning of a statute is the language of the statute itself. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). When a statute is clear and unambiguous, we apply the plain meaning of its words. Ramos v. State, 984 S.W.2d 358, 364 (Tex.Crim.App.1996), cert. denied, — U.S. -, 117 S.Ct. 1556, 137 L.Ed.2d 704 (1997); Boykin, 818 S.W.2d at 785. When, however, the words are ambiguous, or the plain meaning of the words would lead to an absurd result which the legislature could not possibly have intended, we look to extratextual factors to ascertain the statute’s meaning. Boykin, 818 S.W.2d at 785.

The phrases “challenge to a conviction” or “challenging a conviction” are not defined in Article 11.07 or in any other article in the Code of Criminal Procedure, nor are they defined in any other Texas statute. It is necessary, therefore, to consider the definitions of the individual words. According to Black’s Law Dictionary, the key words may be defined as follows:

Challenge. To object or except to; to formally call into question ... the sufficiency or validity of an instrument; to call or put in question; to put into dispute;....
Conviction. In a general sense, the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged. The final consummation of the prosecution including the judgment or sentence, or as is frequently the case, the judgment or sentence itself. The stage of a criminal proceeding where the issue of guilt is determined.

Black’s Law Dictionaey (6th ed.1990).

Although the Code of Criminal procedure does not define “conviction,” the Code significantly narrows the meaning given to “conviction” in the context of a criminal proceeding. *203Under Article 42.01, for instance, a “judgment” is defined, in part, as “the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.” Art. 42.01 § 1 (emphasis added). Throughout Article 42.01 the term “conviction” refers to the jury’s decision of guilt—again, a limited view of the term. Id. at § 1(8), (9), (10), (13), (14) & (27).

This is not, however, the Court’s first attempt to define the term “conviction.” While dissenting, former Judge Teague sagely noted that “considerable force can be put behind the proposition that [conviction] means different things in different statutes.” Ex parte Renier, 734 S.W.2d 349, 365 (Tex.Crim.App.1987) (Teague, J., dissenting) (discussing definition of “final conviction” under Article 11.07). He explained that “an argument can be made that the word means ‘verdict of guilt’ in some places and ‘judgment on the verdict of guilt’ in others.” Id. (citations omitted). And now, I too agree with Judge Teague’s conclusion that this Court has most often “construed the term ‘conviction’ to mean a judgment of guilt and the assessment of punishment.” Id. (citations omitted).

B. Affirmative Findings

Based on these definitions, a challenge to a conviction would appear to be limited to claims regarding “the final consummation of the prosecution,” “the judgment or sentence that the accused is guilty as charged,” or “a judgment of guilt and the assessment of punishment.” This interpretation would exclude matters such as an affirmative finding from the ambit of § 4, because an affirmative finding issue does not call into question the validity of the prosecution or judgment of guilt; rather, it questions issues arising after the completion of the prosecution. For instance, the existence of an affirmative finding affects a defendant’s eligibility for parole—it does not alter the jury’s verdict or the actual punishment assessed.

It is true that claims regarding affirmative findings are cognizable under Article 11.07. See, e.g., Ex parte Garcia, 682 S.W.2d 581 (Tex.Crim.App.1985). In order to raise these claims, like claims pertaining to trial, an applicant must file his application in the court and county in which he was convicted. See Art. 11.07, § 2. Thus, in a general sense, an applicant files a writ application attacking the judgment of final conviction which has resulted in his confinement, regardless of the content of his actual claim.

Nevertheless, a claim regarding an affirmative finding does not affect the validity of the underlying conviction; nor does it alter the amount of punishment assessed. Rather, affirmative findings restrict a defendant’s eligibility for parole. See Tex.Code Crim.Proc. Ann. art. 42.12, § 3(g)(a); see also, Tex. Gov’t Code Ann. §§ 508.145(d) & 508.149(a) (Vernon Supp.1998). Thus, although the claim is cognizable under Article 11.07, § l,2 it is not a challenge to the conviction under Article 11.07, § 4, because it does not call into question the validity of the prosecution or the judgment of guilt.

III. Conclusion

Both the definition of conviction and this Court’s caselaw regarding writ applications lead to the conclusion that the procedural bar of § 4 is limited to instances in which the initial application raises claims regarding the validity of the prosecution or the judgment of guilt. It does not apply to claims regarding other matters, such as affirmative findings. I conclude that the plain language of § 4 is unambiguous and does not lead to an absurd result.

As a result, this application is not barred by § 4 because Applicant’s prior application did not involve a claim which “challenges the conviction” within the meaning of Article 11.07, § 4. Thus, I would address the merits of Applicant’s claims.

BAIRD, OVERSTREET and MEYERS, JJ., join.

. Unless otherwise indicated, all references to articles are those in the Texas Code of Criminal Procedure.

. Section 1 provides that Article 11.07 establishes 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."