EX PARTE THOMAS v. << (2023)

Writ of habeas corpus denied.

CONCURRING OPINION

Around a decade ago, on September 6, 2012, Applicant filed these applications for writs of habeas corpus in Harris County challenging his two convictions for aggravated robbery with a deadly weapon. The trial court entered timely orders designating issues on March 7, 2013. For reasons that remain unknown, it appears that no further action was taken until the applications were belatedly forwarded to this Court on August 24, 2022. This Court has now independently reviewed the record and considered the claims raised in the applications, and it has determined that Applicant's claims lack merit. Although I agree with the Court's ultimate assessment that the applications should be denied, given the extraordinary delay that has occurred in this case, I believe it is appropriate to at least provide Applicant with some explanation for why his applications are being denied after more than ten years.

I. Background and Merits

In July 2009, Applicant was convicted of two counts of aggravated robbery and sentenced to twenty years’ imprisonment on each count. The First Court of Appeals affirmed his convictions. Thomas v. State, Nos. 01-09-00671-CR, 01-09-00672-CR, 2010 WL 5117479 (Tex. App.—Houston [1st Dist.] Dec. 16, 2010, pet. ref'd) (mem. op., not designated for publication). In his applications for post-conviction writs of habeas corpus, Applicant raises four claims: (1) actual innocence, (2) ineffective assistance of counsel, (3) trial court error stemming from an improper deadly-weapon finding, and (4) denial of right to a public trial.

A. Actual Innocence

The facts adduced at trial showed that Applicant, along with his brother and several others, committed an armed robbery of two women, Antoinette Breed and Lakisha Roberts, in their apartment. Applicant was acquainted with the women before the robbery, but because the assailants wore masks, the victims did not immediately identify Applicant as one of the perpetrators when speaking with responding law enforcement officers. Several hours after the robbery, while at the police station, the victims named Applicant as one of the perpetrators.

In support of his claim that he is actually innocent, Applicant relies on newly-discovered evidence in the form of an affidavit from Guy Hall. Hall, who was an acquaintance of Breed's, indicates that Breed told Hall she did not like Applicant or his brother because they had insulted her and Roberts in the past. According to Hall, Breed expressed a desire to get revenge by “setting up” Applicant and his brother. Hall, however, does not state that Breed ever said she was going to falsely accuse Applicant of robbery. In further support of this claim, Applicant also notes that Breed gave conflicting testimony at his trial and his brother's trial with respect to her ability to identify him as one of the assailants. He also emphasizes that Breed failed to name him as a perpetrator until several hours after the robbery, even though she was acquainted with him before the offense.

To establish entitlement to habeas relief based on actual innocence, an applicant must demonstrate “by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (emphasis added). We have described meeting this standard as a “Herculean burden.” Ex parte Chaney, 563 S.W.3d 239, 274 (Tex. Crim. App. 2018). Hall's affidavit, at most, casts doubt on Breed's credibility and establishes a possible motive for her to falsely accuse Applicant, but it does not wholly undermine Breed's identification of Applicant as one of the assailants. Thus, even if it were deemed credible, Hall's affidavit is insufficient to meet the demanding standard for establishing actual innocence. Accordingly, Applicant's actual-innocence claim lacks merit.

B. Ineffective Assistance of Counsel

The standard for ineffective assistance of counsel is laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on a claim of ineffective assistance, an applicant has the burden to prove that counsel's performance was both deficient and prejudicial to the outcome of the proceeding. Id. at 687, 104 S.Ct. 2052. The deficiency prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687–88, 104 S.Ct. 2052. There is “a strong presumption that counsel's conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Applicant alleges various instances of deficient performance by his several trial attorneys.¹ These include: counsel's failure to file a notice of appeal regarding the juvenile court's certification of Applicant as an adult; failure to properly investigate the facts of the case; failure to properly utilize funds apportioned to hire a private investigator; failure to file any pretrial motions including motions to suppress Applicant's statement and a tainted identification of Applicant; failure to convey two separate plea offers to Applicant; and failure to file a motion for new trial. Notably, the attorney who represented Applicant at trial for this offense is now deceased, making it difficult for this Court to resolve the allegations of deficiency. However, even assuming for the sake of argument that Applicant is correct about some of the allegations, Applicant has failed to properly allege how he was prejudiced by his counsel's purported deficiencies. Specifically, Applicant does not show a reasonable probability that, but for counsel's deficient performance, he would not have been certified as an adult for this offense or otherwise would have likely received a different outcome at trial. Because applicants must properly demonstrate both deficiency and prejudice in order to succeed on a claim of ineffective assistance of counsel, the Court properly denies relief on this claim.

C. Trial Court Error and Right to Public Trial

Finally, Applicant alleges that the trial court denied him a fair trial and due process of law by entering a deadly-weapon finding without having pronounced the same during the oral sentencing of Applicant. Additionally, Applicant alleges that the trial court impermissibly excluded numerous family members from the courtroom during jury selection. “The Great Writ should not be used to litigate matters which should have been raised on appeal.” Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989). A claim of trial court error must be raised on direct appeal. Ex parte Nelson, 137 S.W.3d 666, 667–68 (Tex. Crim. App. 2004). Applicant did not raise these issues, which were readily apparent at the time, on direct appeal. So, he may not now raise them for the first time in his applications for post-conviction habeas relief.

For these reasons, I agree with the Court's assessment that Applicant is not entitled to relief on any of his claims.

II. The Delay

Turning to the matter of the extended delay in resolving Applicant's habeas applications, I wish to provide Applicant with a brief explanation for why it has taken this Court a decade to rule on his case. It has recently come to this Court's attention that dozens, possibly hundreds, of applications for writs of habeas corpus filed in Harris County during the past several decades were not timely forwarded to this Court. It is only in the past several months that the long-delayed applications have finally been forwarded. No reason or justification has yet emerged for this breakdown in the system, which plainly violates the procedural rules governing resolution of habeas applications.² The sheer volume of cases this Court has received with extraordinary delays is clear evidence of a systemic failure in Harris County's processes for handling post-conviction habeas applications. Ultimately, I acknowledge that the situation is extremely troubling, completely unacceptable, and terribly unfair to the applicants who have waited for years for any response regarding their applications. I urge Harris County to properly investigate the reason for these “lost and found” writs and ensure that nothing like this ever happens again.

Nevertheless, while I acknowledge this significant problem in the handling of Applicant's post-conviction writ applications, for the reasons already explained above, I agree with the Court that Applicant has failed to establish entitlement to relief. Therefore, I join the Court's decision denying relief.

FOOTNOTES

1.   Applicant had three separate attorneys at the trial level. The first represented him during the juvenile court proceedings up to his certification as an adult and transfer into the adult court system. A second attorney represented Applicant during a portion of the pretrial proceedings until a third attorney was appointed to represent Applicant for the remainder of trial.

2.   See Tex. R. App. P. 73.4(b)(5) (providing that, on the 181st day after the application is received by the State, the district court “shall forward the writ record to this Court unless the district court has received an extension of time from the Court of Criminal Appeals”); Id. R. 73.5 (“Within 180 days from the date of receipt of the application by the State, the convicting court shall resolve any issues that the court has timely designated for resolution.”).