Ex Parte Crispen

TEAGUE, Judge,

dissenting.

My understanding of the argument that Eladio Crispen, henceforth applicant, makes as to why he is entitled to have the trial court’s judgment of conviction set aside is that he is being unlawfully restrained and detained in the Department of Corrections because evidence that was used to convict him at his trial was admitted pursuant to Art. 38.071, § 2, V.A.C. C.P., which statutory provision this Court declared unconstitutional in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied, — U.S. -, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988). Also see Coy v. Iowa, 487 U.S. -, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), 43 CrL 3226, June 28, 1988, and Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). In Ex parte Hemby, 765 S.W.2d 791 (Tex.Cr.App.1989), this Court held as a matter of law that this kind of evidence is always instrumental in obtaining a conviction.

In Ex parte Hemby, this Court also held that its decision in Long was to be given complete retroactive effect. This Court granted the defendant relief in that cause pursuant to the provisions of Art. 11.07, Y.A.C.C.P., Texas’ post-conviction statute. The defendant’s conviction had previously been affirmed by the Beaumont Court of Appeals. No petition for discretionary review was ever filed in this Court. In the 11.07 proceedings, the State merely argued that the following question should be answered in the negative, “whether Long should be given retroactive effect to those cases for which all direct appellate avenues had been exhausted before the date of that decision.” (792). The majority opinion in this cause, see page 104, believes that was this Court’s holding. It was not. This Court held that “our decision in Long v. State, supra, is to be afforded complete retroactive effect. In so holding, we do not purport to mark the boundaries of retroac-tivity of new State constitutional rulings affecting criminal procedure; nor should we be understood necessarily to adopt the Stovall test for determining retroactivity to cases already through the appellate process on the date of decision such new State constitutional rules. Having deemed that part of our holding in Long which relied on Federal constitutional provisions to have retroactive effect, however, surely we should not apply our comparable State provisions more parsimoniously.” (794). That was the holding in Ex parte Hemby.

Thus, under Ex parte Hemby, it should be unquestioned that Long error may be raised by way of Art. 11.07, and this Court’s decision of Long is to be given “complete retroactive effect.”

It is true that in Ex parte Hemby, because of the State’s concession, no hearing was held. However, at no place in the opinion do I find where this Court held that an objection at trial was a necessary pre-quisite before the defendant was permitted to bring his complaint pursuant to Art. 11.07. Given what the majority opinion states, shouldn’t the applicant at least be afforded a hearing on the issue?

Today, without a hearing, the majority opinion summarily holds that “a defendant who fails to object [at trial] on confrontation grounds to admission of a videotape at trial may not raise the issue of ‘Long error’ for the first time on collateral review.” Given what this Court’s aggressive and assertive majority stated and held in Ex parte Banks, 769 S.W.2d 539 (Tex.Cr.App., *1111989), Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App., 1989); and Ex parte Mathews, 768 S.W.2d 781 (Tex.Cr.App., 1989), this holding neither amazes nor shocks me.

However, given what this Court stated and held in the above cases, what does amaze and shock me is why it takes this Court almost four complete legal size pages to tell an incarcerated inmate in the Texas Department of Corrections, where most of our post-conviction applications for the writ of habeas corpus come from, also see Ex parte Renier, 734 S.W.2d 349 (Tex.Cr.App.1987), who wish to collaterally attack a trial court’s judgment of conviction, what can be stated in one short sentence, namely: No kind of error is subject to collateral attack unless the defendant objected to such error at his trial and he also raised the error on both direct appeal and in a petition for discretionary review, unless he can show good cause for not doing either.

I must ask the following question: Isn’t the majority opinion in conflict with what this Court recently stated and held in Casares v. State, 768 S.W.2d 298 (Tex.Cr.App., 1989)?

In Casares, this Court was confronted with the issue whether another kind of error of constitutional magnitude, “Rose error,” see Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987), also see Jefferson v. State, 751 S.W.2d 502 (Tex.Cr.App.1988), which error was found in Rose to be of constitutional magnitude, could be raised for the first time on direct appeal, even when the defendant did not object at trial to such error.

A majority of the First Court of Appeals, see Casares v. State, 712 S.W.2d 818 (Tex.App.-1st 1986), ruled that “The constitutionality of a statute may not be raised on appeal unless the issue was first raised in the trial court. (Citations deleted.)” (821). This Court, however, reversed this holding, holding that an unconstitutional statute cannot provide a basis for any right or relief, and thus at least implicitly held that the constitutionality of a statute may be collaterally attacked for the first time on appeal.

Today, however, the applicant in this cause is poured out because he failed to object in the trial court to the now declared constitutional error. Why wasn’t the defendant Casares not poured out for this same reason.

I respectfully dissent to the aggressive and assertive majority’s continued desire to do away with the provisions of Art. 11.07, which in my viewpoint, as a result of the above cases, no longer actually exists, at least from a practical, if not legal, standpoint.