EX PARTE WILLIAM KEITH SPEER v. << (2026)

CONCURRING OPINION

I join the Court's order denying relief. I write separately to highlight that the habeas court's actions in this case on our remand—and this Court's adoption of the habeas court's findings today—shows why this Court erred to remand Applicant's habeas application for evidentiary development in the first place.

On our original remand, a majority of this Court concluded that Applicant had made a “prima facie showing that no rational juror would have answered one or more of the statutory special punishment issues.” Ex parte Speer, No. WR-59,101-06, 2025 WL 2151382, at *1 (Tex. Crim. App. July 30, 2025) (mem. op., not designated for publication). In a dissenting opinion joined by Judge Parker, I wrote that the Court's decision to remand the habeas application was wrong for two reasons.

First, Applicant's claim would always fail to meet the bar on subsequent habeas applications:

The Court concludes that Applicant has pleaded a prima facie case that “no rational juror would have answered one or more of the statutory special punishment issues in favor of the death penalty.” Maj. Op. at —. But to reach that conclusion, the Court necessarily engages in a reweighing of the mitigation special issue evidence that we have repeatedly refused to do. Even if, assuming arguendo, that Applicant's trial counsel had presented all the evidence that Applicant alleges in his subsequent application, how are we to say that the jury would still not have answered the special issues in a way consistent with the imposition of the death penalty? “[T]here is simply no way for an appellate court to review the jury's normative judgment that the evidence did or did not warrant a life sentence.” Eldridge [v. State], 940 S.W.2d [646, ]653 [(Tex. Crim. App. 1996)]. We should decline to do so here.”

Id. at *8 (Finley, J., dissenting).

Second, Applicant's claim had already been rejected during federal litigation. Id. at *9. Both the federal district court, Speer v. Dir., TDCJ-CID, No. 2:04CV269, 2018 WL 11350010, at *16 (E.D. Tex. June 25, 2018), report and recommendation adopted, No. 2:04CV269, 2018 WL 11350042 (E.D. Tex. Sept. 14, 2018), and the United States Court of Appeals for the Fifth Circuit, Speer v. Lumpkin, 860 F. App'x 66, 72 (5th Cir. 2021) (per curiam) (op. on reh'g), held that Applicant's ineffective-assistance-of-counsel claim failed. The Fifth Circuit emphasized that “no juror would have reached a different conclusion,” even when “recalibrating both the aggravating and mitigating sides of the ledger to account for the evidence that trial counsel did not present.” Id. at 70.

Unsurprisingly, the habeas court on our remand did two things. It first presumed all of Applicant's proffered habeas evidence “true for purposes of merits review.” Finding 21, 28 n.1. Based on this, the habeas court found that no live evidentiary hearing was necessary and declined to hold one because “no controverted, previously unresolved factual issues” remained. Id. at 14–15. It then relied on the Fifth Circuit's opinion and concluded the additional evidence was “double-edged”—as much aggravating as mitigating—and not so compelling that any juror would have answered the special issues differently. Conclusion 20–27.

Applicant has filed ten separate objections to the habeas court's findings of fact and conclusions of law. None are meritorious. The habeas court's actions on remand confirm that this Court should have simply dismissed Applicant's habeas application as subsequent rather than remand it for needless evidentiary development. I am content to join the Court's order denying relief. Conversely, this Court could also recognize the error in its ways and instead dismiss Applicant's habeas application. With these thoughts, I join the Court's order denying relief.