Ex Parte Evans

KELLER, Judge,

dissenting.

The majority in this case concludes that article 11.07, section four of the Code of Criminal Procedure does not bar applicant’s subsequent application for writ of habeas corpus because his previous application was not an attack on his “conviction.” Because I disagree with the majority’s limitation on the so-called “subsequent writ” bar, I respectfully dissent.

Applicant was convicted in 1989 of involuntary manslaughter and sentenced to ten years in prison. He took no appeal from that *649conviction. He now files this application for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure. Tex.Code CRIM. Proo. Ann. art. 11.07 (Vernon Supp.1997).

Applicant claims in this application that he has not received credit for jail time served prior to trial or pursuant to a parole revocation “blue warrant.” Both claims are, generally, cognizable under article 11.07. See Ex parte Harris, 946 S.W.2d 79 (Tex.Crim.App.1997); Ex parte Canada, 754 S.W.2d 660 (Tex.Crim.App.1988). However, before we reach the merits of applicant’s claims, we must ascertain whether they are procedurally barred because applicant raises them in a subsequent writ. See Tex.Code Crim. Proo. Ann. 11.07, See. 4 (Vernon Supp.1997).

Applicant has previously filed an 11.07 application in this cause. The first application, filed with the trial court on October 24,1996, raised claims concerning a 1996 parole revocation hearing. Specifically, he argued that the hearing was untimely, that he was denied counsel and confrontation at the hearing, and that the hearing officer was biased against him. We considered his claims on the merits, but denied relief. Ex Parte Evans, No. 38,043-01 (Tex.Crim.App. March 26, 1997)(not designated for publication).

Applicant filed the current application in the trial court on May 8, 1997. The trial court initially recommended we deny applicant relief because

[ajpplicant has failed to include sufficient facts establishing that the current claims could not have been presented previously because the factual or legal basis for the claim was unavailable; or that, by a preponderance of the evidence, no rational juror could have found the applicant guilty beyond a reasonable doubt. Tex.Code Crim. Proo. Ann. art. 11.07 § 4(a) (Vernon Supp.1997).

However, the trial court later rescinded this recommendation and recommended relief based on its findings that records from the Michigan Department of Corrections and the Harris County Sheriffs Department corroborated applicant’s claims.

I. The Subsequent Writ Bar

Article 11.07, section four, sets forth the procedural bar to subsequent post-conviction applications for writ of habeas corpus:

(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.

Tex.Code Crim. ProC. Ann. art. 11.07, see. 4(a) (Vernon Supp.1997).

A Applicant’s claims in answer to the bar

Applicant claims, first, that the factual basis for one of his claims was unavailable to him at the time of his initial application, triggering the exception to the subsequent writ bar laid out in section 4(a)(1). More important, he claims the prior application did not attack his “conviction” for the purposes of the bar, so his current application is not a “subsequent” one. He argues that the term “conviction” in this context should mean “any and all proceedings pertaining to pretrial events through the sentencing phase.” He also contends that because a favorable disposition of his application would result only in a new hearing and not a reversal of his conviction, his application does not attack the conviction. Finally, he argues for a distinction between an attack on a conviction and an attack on a matter “which does not have anything to do with the conviction other than sharing the same forum for fact finding.” I will first address the question whether appli*650cant’s first application — an attack on a parole revocation — challenged his “conviction” for the purposes of article 11.07, section 4.

II. Defining “Conviction”

In large part, whether we may address applicant’s claims turns on our interpretation of the word “conviction” as used in article 11.07, section 4. When we face the critical interpretation of a single statutory term, as we do in this case, we follow a rigid analytical process for that interpretation. First, we consider the word in isolation. If the word carries inherent meaning which does not vary, depending on usage, and this meaning can be applied to the usage in question without contradiction or logical inconsistency, we apply that meaning. Brown v. State, 943 S.W.2d 35, 36 (Tex.Crim.App.1997). If, however, the word’s meaning varies depending on its usage, we move on to a more contextual analysis, focusing on the plain wording of the statute as a whole. If the word, viewed in its context within the statutoiy language, yields an obvious and logical meaning which does not lead to an absurd result, we end our examination there. Ramos v. State, 934 S.W.2d 358, 364 (Tex.Crim.App.1996), cert. denied, — U.S. -, 117 S.Ct. 1556, 137 L.Ed.2d 704 (1997); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Finally, if the plain meaning of the statute leaves the word’s meaning ambiguous, or leads to an absurd result, we may then — and only then — delve further into the word’s context by examining extratextual factors, such as legislative history, to divine the intent of the statute’s drafters. State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App.1996); Boykin, 818 S.W.2d at 785.

The statute before us does not define the term “conviction.” However, the Code of Criminal Procedure requires elsewhere that “all words, phrases, and terms used in this Code are to be taken and understood in their usual acceptation. in common language, except where specially defined.” Tex.Code CRIM PROC. Ann. art. 3.01 (Vernon Supp. 1997). According to Black’s Law Dictionary, a conviction is

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 Dictionary 333-34(6th ed.1990). This definition leaves some confusion — does the word mean the finding of guilt, or the imposition of sentence, or both? Furthermore, while Black’s Law Dictionary is an invaluable tool in deciphering obscure legal terms, its definitions may not represent a word’s “usual acceptation in common language.” Indeed, a nonlegal dictionary presents a much narrower and less specific definition of the term; “the act or process of convicting of a crime esp. in a court of law.” Merriam Webster’s Collegiate Dictionary 254 (10th ed.1993). The verb “convict” is defined as “to find or prove to be guilty.” Id. The ordinary definitions of “conviction” do not present a meaning without ambiguity. Nor has our caselaw uniformly defined this word. Judge Teague once pointed out in a dissent that the term “[is] widely used throughout the penal and procedural laws of this State, but [is] nowhere defined, even though [it has] been held to mean different things in various contexts,” and he concluded that “considerable force can be put behind the proposition that it means different things in different statutes.” Ex parte Renier, 734 S.W.2d 349, 364-65 (Tex.Crim.App.1987) (Teague, J., dissenting).1

It seems apparent, then, that the scope of this term varies depending on the context of its use. As discussed above, when a statutory term’s meaning depends so critically on context, we look first at its most immediate context — the plain wording of the statute as *651a whole — to divine the intended import of the term. This term falls within an article of the Code of Criminal Procedure entitled “Procedure after Conviction Without Death Penalty.” TexCode CRiM. PROC. art. 11.07 (Vernon Supp.1997). This article expresses its purpose as “establishing] 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.” Id. § 1. Within the context of this article, section four forbids consideration of an application if it “is filed after final disposition of an initial application challenging the same conviction.” Id. § 4. Section one of this article explains the purview of the article as a whole, while section four places a limitation on the article as a whole. That which is described by section one is limited by section four. In interpreting section one, this court has characterized an 11.07 habeas application as “challenging the legality of confinement under the authority of a conviction.” Ex parte Alexander, 861 S.W.2d 921, 923 (Tex.Crim.App.1993). Even more specifically, we have held that an applicant can raise a challenge to his parole revocation in an 11.07 application, concluding that

[although his challenge is not addressed to the validity of the underlying conviction, it is nevertheless the case that his confinement is under authority of that conviction.

Ex parte Woodward, 619 S.W.2d 179, 179 (Tex.Crim.App.1981). It is inconsistent for this court to recognize a claim under section one, yet hold that it is unaffected by section four. Indeed, such an interpretation would lead to an “absurd result.” Boykin, 818 S.W.2d at 785.

Furthermore, this court has acknowledged that the meaning of section four might be ambiguous or lead to an absurd result, and we have examined this article’s legislative history. We have noted that the legislature’s expressed intent for the enactment of section four was to limit 11.07 applicants to “one bite at the apple.” Ex parte Torres, 943 S.W.2d 469, 473 (Tex.Crim.App.1997) (quoting the bill’s sponsor as saying: “[Wfe tell individuals that, everything you can possibly raise the first time, we expect you to raise it initially, one bite at the apple, one shot ... ”). The legislature clearly envisioned a broad prohibition on multiple applications for writ of habeas corpus. In discussing that broad prohibition, we have further concluded that “a final disposition of an attack on a ‘conviction’ for purposes of § 4 is an attack on a specific cause number in which all issues which were raised have been dealt with on the merits.” Ex Parte Rawlinson, 958 S.W.2d 198, 200 (Tex.Crim.App.1997). Therefore, I believe that applicant’s first application, attacking his parole revocation in the same cause number as his current application, acts to bar this writ under section four of article 11.07.

III. Other Exceptions to the Subsequent Writ Bar

Appellant also claims he meets the first exception to the section four bar, that is, his current claims and issues could not have been presented previously, because the factual or legal basis for the claims were unavailable on the date he filed the previous application. Applicant alleges facts which show that his parole was revoked on September 27, 1996. Subsequent to the filing of the initial application, on or about December 14, 1996, applicant received his time sheet from the Texas Department of Criminal Justice — Institutional Division which reflected that Applicant was not receiving time credit for the period he spent incarcerated pursuant to the “blue” warrants filed in the instant case.2 The facts alleged by applicant do establish that this claim could not have been raised in his initial application, as the factual basis for the claims was not then available to him. If his allegation as to the date of his notice of time credit from TDCJ-IC has factual support, applicant is entitled to additional time credits for any periods he spent in custody *652pursuant to the “blue” warrants in the instant ease.

However, the record before us does not support the trial court’s recommendation that appellant be credited specific amounts of time, as the records referred to in those findings do not appear before us. Furthermore, this record fails to resolve whether or not applicant had notice of his denial of time credits prior to his initial application in this case. Therefore, I believe this court should order the trial court to further develop the record in this case in order to resolve these factual issues. The trial court could do so as set out in article 11.07, section 3, by ordering affidavits, depositions, interrogatories, or a hearing.

As for the time credits applicant claims he is entitled to for time spent incarcerated prior to trial, applicant does not establish his entitlement to any exception to section four’s subsequent writ bar. Therefore, pursuant to that section, we may not consider the merits of those claims. We should dismiss his application in regard to those claims only.3

IV. Conclusion

I therefore believe this court should order the trial court to develop a sufficient record to resolve appellant’s claim under his application for writ of habeas corpus that he has been denied time credit for time spent incarcerated pursuant to a Texas “blue” warrant in this case. On remand, the trial court should determine (1) if applicant indeed did not have notiee of the denial of his time credits prior to his previous application for an 11.07 writ of habeas corpus, and (2) if not, the specific amount of time credit to which he is entitled. His other claim — that he has been denied time credit for pretrial confinement — should be dismissed pursuant to the “subsequent writ” bar contained in article 11.07, section 4 of the Texas Code of Criminal Procedure.

. He continued:

Specifically, an argument can be made that the word means "verdict of guilt" in some places and "judgment on the verdict of guilt" in others. See McCarter v. State, 527 S.W.2d 296 (Tex.Crim.App.1975); Whan v. State, 485 S.W.2d 275 (Tex.Crim.App.1972); Ex parte Hayden, 152 Tex.Crim. 517, 215 S.W.2d 620 (1948); Goss v. State, 107 Tex.Crim. 659, 298 S.W. 585 (1927).

Renier, 734 S.W.2d at 365.

. Applicant contends that he has been denied credit on his sentence for time he spent in custody in Michigan with a Texas "blue” warrant lodged against him. Specifically, applicant contends that he is entitled to a time credit for the period from February 20, 1992 until April 6, 1993, and from July 17, 1995 until an unspecified date in December, 1995. The trial court recommended that "relief be granted in all respects.”

. Our dismissal of these claims does not necessarily foreclose relief for this applicant. If he did not receive credit to which he was entitled for time served pretrial, he may still petition the trial court for an Order Nunc Pro Tunc correcting his sentence. His entitlement to time credit for pretrial confinement, while not constitutionally mandated, see Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977), has been made mandatory by the Legislature. See TexCode Crim. Proc. art. 42.03, § 2(a) (Vernon Supp.1997) ("the court ... shall give the defendant credit on his sentence ... from the time of his arrest and confinement until his sentence by the trial court”)(emphasis added); Ex parte Green, 688 S.W.2d 555, 557 (Tex.Crim.App.1985). And as we have repeatedly held, "where a defendant has been denied credit for jail time to which he is entitled, the trial court may enter appropriate nunc pro tunc orders authorizing credit for the appropriate time.” Ex parte Kuban, 763 S.W.2d 426, 427 n. 1 (Tex.Crim.App.1989) (quoting Shaw v. State, 539 S.W.2d 887, 890 (Tex.Crim.App.1976)).