EX PARTE MARCEAUX v. << (2026)

Reconsideration denied.

DISSENTING OPINION

Applicant's initial application for a writ of habeas corpus was denied by this Court on February 19, 2026. Before the Court is Applicant's suggestion to reconsider. In his suggestion, Applicant avers that he did not consent to the filing of the initial writ of habeas corpus. Applicant specifically claims that he retained attorney Joseph R. Willie to represent him on direct appeal and that Mr. Willie, without Applicant's consent, filed the instant habeas application once the Applicant's direct appeal was resolved against Applicant.

The Court today denies Applicant's suggestion to reconsider. Because the balance of equities weighs in Applicant's favor, I would instead grant reconsideration and remand the habeas application to ascertain whether Applicant's allegations are true. If they are, this Court could then dismiss Applicant's habeas application rather than deny it. See Ex parte Gallo, 448 S.W.3d 1, 2 (Tex. Crim. App. 2014). If they are not, then this Court would simply deny Applicant's habeas application once more. I respectfully dissent.

I. Background

Applicant was convicted of felony murder and sentenced to fifty-three years’ confinement. See Tex. Penal Code § 19.02(c). On April 1, 2024, Applicant's initial appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw. Before the court of appeals ruled on Applicant's appeal, Applicant hired Mr. Willie to represent him on the appeal. On June 25, 2024, Mr. Willie filed a brief on Applicant's behalf. The appellate brief contained two issues:

I.  The trial court did not have the requisite subject-matter jurisdiction concerning the controversy.

II. The State of Texas failed to establish the causation requirement concerning the penal offense that was charged, thus the trial court erred by denying the Appellant's motion for directed verdict.

On August 20, 2025, the court of appeals affirmed Applicant's conviction in an unpublished opinion. Marceaux v. State, No. 09-23-00365-CR, 2025 WL 2408202, at *5 (Tex. App.—Beaumont Aug. 20, 2025, no pet.) (mem. op., not designated for publication).

Less than three months later, Mr. Willie filed the instant habeas application on Applicant's behalf. The habeas application raised two grounds for relief:

I.  The trial court did not have the requisite subject-matter jurisdiction concerning the controversy.

II. The State of Texas failed to establish the causation requirement concerning the penal offense charged, thus trial court erred in denying the Petitioner's motion for directed verdict.

With the exception of the change from “Appellant's” to “Petitioner's,” the grounds for relief in the habeas application are identical to the appellate briefing in Applicant's case. In fact, the “Facts Supporting Ground Two” are a copy-and-paste from Applicant's brief in the court of appeals, minus citations to the appellate record. The habeas application “oath before a notary public” is signed by Mr. Willie's wet signature and the “petitioner's statement” is signed by Mr. Willie's electronic signature.

This Court denied habeas relief without written order on February 19, 2026. Four months later, on June 17, 2026, Applicant filed the instant suggestion to reconsider through new habeas counsel. Applicant contends that Mr. Willie had not been hired to file any writ application but took it upon himself to do so anyway.

Applicant signed an affidavit which avers, in relevant part:

During the course of my direct appeal, I had no meaningful communication with Mr. Willie. I wrote to him on at least three separate occasions, but I never received a response. The only communication I received from Mr. Willie was when he mailed me a copy of my appellate brief and, later, a copy of the 11.07 Application that he had filed.

I did not authorize Mr. Willie to prepare or file an 11.07 Application. I retained him solely for purposes of my direct appeal. I had no knowledge that he was preparing a writ application, and I did not consent to its filing. Although the filed application bears Mr. Willie's signature indicating that I agreed to the filing, that statement is not true.

After I learned that the 11.07 Application had been filed, I informed my stepmother, who then contacted Mr. Willie's office on at least two occasions. Her calls were not returned.

Throughout the pendency of the 11.07 proceedings, I did not receive copies of key filings, including the State's Motion to Dismiss, Proposed Findings of Fact and Conclusions of Law, the State's Answer, or any response filed on my behalf. I was never consulted about the content of the writ or any strategy related to it.

I ultimately learned that my application had been denied only when I received the white card in the mail. To this day, Mr. Willie has never contacted me to discuss the 11.07 application or its denial.

Applicant's stepmother, Tonya Goforth, signed an affidavit which avers:

I assisted [Applicant] in retaining Mr. Willie to represent him on his direct appeal after Dana Williams, [Applicant]’s trial attorney, recommended Mr. Willie. Mr. Willie was paid $8,500 to represent [Applicant] on his direct appeal.

During Mr. Willie's representation, communication was extremely difficult. I frequently called Mr. Willie's office and left messages with his secretary requesting that he return my calls. On other occasions, no one answered the phone, and I left voicemail messages. Despite these efforts, Mr. Willie returned my calls only a few times.

However, on one occasion, Mr. Willie personally answered the phone. I asked him about the lack of communication regarding [Applicant]’s case. In response, Mr. Willie told me that he had a strategy and did not want anyone to know what it was. He also stated that he could not call [Applicant] because “the guards would know what he was doing.” I also tried to discuss [Applicant]’s trial and Ms. Williams’ representation with Mr. Willie, but he became very defensive when I said anything negative about Ms. Williams.

Throughout the representation, I tried to remain positive and trust Mr. Willie was properly handling [Applicant]’s appeal. However, I ultimately felt disappointed and let down by the lack of communication. [Applicant] likewise expressed disappointment and frustration regarding Mr. Willie's failure to communicate with him about his case.

After [Applicant]’s conviction was affirmed on direct appeal, [Applicant] had no intention of retaining Mr. Willie for any additional legal services. Mr. Willie was not retained to prepare an 11.07 writ application, nor was he ever given permission to prepare or file a pro bono application on [Applicant]’s behalf.

After [Applicant] informed me that Mr. Willie had filed an 11.07 Application, I contacted Mr. Willie's office in an attempt to determine why the application had been filed and what was occurring in the case. Mr. Willie did not return my calls, and neither [Applicant] nor I received any information regarding the status of the writ proceedings. We did not learn what had happened in the case until [Applicant] received the white card notifying him that the writ application had been denied.

II. Mr. Willie

This is not the first time that litigants have alleged that Mr. Willie has violated the rules of professional conduct. In Willie v. Comm'n for Lawyer Discipline (Willie I), No. 01-11-00428-CV, 2012 WL 761241 (Tex. App.—Houston [1st Dist.] Mar. 8, 2012, no pet.) (mem. op., not designated for publication), Mr. Willie filed an interlocutory appeal in a case that originated from the Commission for Lawyer Discipline (the Commission)’s allegations that Mr. Willie, “in the course of his representation of [a criminal defendant named Neal] Armstrong, failed to abide by Armstrong's decisions, keep Armstrong reasonably informed about the status of the case, promptly comply with reasonable requests from Armstrong for information, and surrender papers and property to Armstrong to which he was entitled.” Id. at *1. And in Willie v. Comm'n for Lawyer Discipline (Willie II), No. 01-11-00433-CV, 2014 WL 586226 (Tex. App.—Houston [1st Dist.] Feb. 13, 2014, pet. dism'd w.o.j.) (mem. op., not designated for publication), the Commission alleged that Mr. Willie “neglected a legal matter, failed to completely carry out obligations owed to his clients, failed to keep the clients reasonably informed and promptly comply with reasonable requests for information, and, after termination of representation, failed to take steps to protect the clients’ interests” during the course of a civil representation. Id. at *1. After a jury trial, the trial court found that Mr. Willie violated Texas Disciplinary Rules of Professional Conduct 1.01(b)(1), 1.14(a), and 1.14(c).¹ Id. The trial court suspended Mr. Willie from the practice of law for six months, probated for one year. Id. On appeal, the court of appeals found the evidence supporting the allegations sufficient and affirmed. See id. at *4.

Lastly, in Willie v. Comm'n for Lawyer Discipline (Willie III), No. 14-13-00872-CV, 2015 WL 1245965, at *1 (Tex. App.—Houston [14th Dist.] Mar. 17, 2015, pet. denied) (mem. op., not designated for publication), Mr. Willie was suspended from the practice of law for twelve months for violating professional conduct rules during his representation of Don Collis Houston Jr. The relevant factual information supporting the allegations is reproduced below from the court of appeals’ opinion in Willie III:

Willie represented his client, Don Collis Houston Jr., after Houston was indicted for possession of a controlled substance and bail jumping. After consulting with Willie, Houston signed a judicial confession and waiver of rights as to both charged offenses on May 12, 2008; these documents also were signed by Willie and the State's attorney, Michael Mark. Houston then pleaded guilty to both offenses in the trial court in the presence of Willie and Mark at a hearing on May 12, 2008.

Mark introduced Houston's judicial confessions and waivers of rights for each offense into evidence at the hearing. The trial court asked Willie if he had any objection to the admission; Willie stated that he had no objections; and the trial court admitted the documents into evidence. The trial court asked Willie if he wanted to present anything else on behalf of Houston, but Willie declined and only asked the trial court to “have a PSI done and come back later for sentencing.”

The trial court held a punishment hearing on May 23, 2008, and sentenced Houston to five years’ confinement for each offense. All proceedings in the trial court relating to Houston were recorded by court reporter Jo Anne Leger.

Id. at *1. When Mr. Willie filed a request for preparation of a clerk's record for an appeal, Mr. Willie “asked for numerous documents but he did not ask that Houston's judicial confessions or waivers of rights be included.” Id.

Mr. Willie then filed an appellate brief on behalf of Houston. Id. at *2. Once again, quoting from the Willie III opinion:

The brief challenged Houston's conviction for possession of a controlled substance and bail jumping. Willie argued that legally and factually insufficient evidence supported his client's two convictions because “[a]s remarkable as it may seem, the State never introduced the Defendant's judicial confession, written waiver of rights, the Presentence Investigation and/or stipulations of evidence and the trial court did not admit same in the above-referenced cause numbers.” The brief asked the court of appeals to reverse Houston's convictions as a result of the State's failure to introduce evidence.

The State filed a motion to supplement the appellate record with items not contained in the originally filed record because Willie had “failed to request the entire record involving this case.” The State requested the entire clerk's record and all exhibits, “including but not limited to the stipulations of evidence and judicial confessions from May 12, 2008,” and the reporter's record of all hearings in the case, including the May 12, 2008 plea hearing.

Willie filed a response to the State's motion, stating that (1) he “does not object to any proper supplementation of the appellate record;” (2) if the State “wanted to complain about a matter that would not otherwise appear in the record, the State had sixty (60) days from the pronouncement of sentence” to file a formal bill of exceptions and cannot now be heard to complain when it chose not to file a timely bill; and (3) court reporter Leger's affidavit “does not state that there was a Court Reporter's Record made of the hearing held on May 12, 2008, and [Willie] was never made aware that such a record existed.”

The Beaumont Court of Appeals issued an order on October 9, 2008, directing the court reporter to prepare a complete record of the hearings and ordering the trial court clerk to prepare a supplemental record “containing any documents executed for the guilty plea proceedings, including plea memoranda, written admonishments, judicial confessions and written stipulations.”

After a complete record was filed in the court of appeals, the State filed a brief on November 6, 2008, and stated as follows in its briefing: “This is an unmitigated and blatant lie on the part of Appellant's counsel and in fact Appellant's judicial confessions were indeed introduced into evidence in the presence of Appellant's counsel․ Appellant's counsel was present when Appellant entered his guilty pleas and when the appropriate documents were introduced into evidence, and in fact, Appellant's counsel even signed those documents.”

Id. at *2 (original emphasis). To recap, Mr. Willie deliberately failed to include relevant documents in the record and then materially misrepresented the record in an appellate brief before Beaumont Court of Appeals.

Mr. Willie's reply brief filed on Houston's behalf withdrew the sufficiency complaint. The court of appeals’ published opinion affirming Houston's sentence stated:

In his opening brief, Houston argued in issue two that the record contained legally or factually insufficient evidence to support the convictions. Houston withdrew the issue in his reply brief, but the State suggests counsel for the appellant represented in the opening brief that certain events had not occurred in the proceedings below when he knew the true facts to be otherwise. The brief for the appellant stated “[a]s remarkable as it may seem, the State never introduced the Defendant's judicial confession, written waiver of rights, the Presentence Investigation and/or stipulations of evidence into evidence and the trial court did not admit same in the above-referenced cause numbers.” As was established through the filing of supplemental records, this statement is incorrect.

Counsel for a party, through briefs and in any oral submission, is expected to provide the Court a fair and accurate understanding of the facts and the applicable law, and must not misrepresent, mischaracterize, misquote or miscite the facts or the law. The Court has inherent power to enforce compliance with the rules, and take appropriate action. Considering that the issue was withdrawn, and after examining the briefs, the record before the Court, and the procedural history in this case, the Court will not proceed further on issue two.

Houston v. State, 286 S.W.3d 604, 612 (Tex. App.—Beaumont 2009, pet. ref'd). Justice Hollis Horton filed a concurring opinion where she wrote that she “disagree[d] with the decision to not further address defense counsel's false statements to this Court regarding the trial court proceedings.” Id. at 614 (Horton, J., concurring).

The Commission charged Mr. Willie with violating Texas Rules of Professional Conduct 3.01, 3.03(a)(1), and 8.04(a)(3). Willie III, 2015 WL 1245965, at *3. After a two-day jury trial, the jury resolved the special questions against Mr. Willie. Id. at *4. The trial court entered judgment, finding that Mr. Willie “ ‘committed professional misconduct as defined by Rule 1.06V’ of the Texas Rules of Disciplinary Conduct and violated Texas Disciplinary Rules of Professional Conduct 3.01, 3.03(a)(1), and 8.04(a)(3).”² Id. at *5. On appeal, the court of appeals affirmed the trial court's judgment suspending Mr. Willie. Id. at *21.

III. Discussion

While it is true that Applicant was on notice—by his own admission—of the filing of the instant habeas application, the balance of equities weighs in Applicant's favor and suggests the more prudent path—re-opening this habeas application and remanding for evidentiary development of Applicant's assertions in his suggestion to reconsider—is appropriate.

First, Mr. Willie's habeas application is a near direct copy-and-paste from his appellate briefing representing Applicant. This fact strongly suggests that Mr. Willie did no additional work on or investigation into the development of habeas claims prior to filing the habeas application. Additionally, the filing of and subsequent denial of Applicant's initial habeas application renders any ineffective assistance of appellate counsel claim filed in a subsequent habeas application subject to the Article 11.07, Section 4 writ bar. See Ex parte Santana, 227 S.W.3d 700, 702 (Tex. Crim. App. 2007). Mr. Willie, in effect, has insulated himself from any effort by Applicant to complain about Mr. Willie's representation through habeas.

Second, the allegations raised by Applicant and his stepmother in the suggestion to reconsider mirror allegations that other criminal defendants and civil litigants that were represented by Mr. Willie in past cases have made against him. If this suggestion to reconsider was an isolated incident in a lengthy, unblemished career, that would be one thing. But a leopard cannot change its spots. The allegations that Applicant raises beg the question of whether Mr. Willie yet again pushed the bounds of professional conduct.

It costs this Court nothing to verify that: we should simply remand this application to the habeas court to receive evidence and make findings on Applicant's claims. Instead, this Court denies Applicant's suggestion to reconsider without comment. Doing so is potentially an injustice to Applicant (again—we do not know, and now will never know, if Applicant's claims are true). But in the bigger picture, denying Applicant's suggestion to reconsider tells litigants that this Court would rather place amorphic principles of procedural default over the truth-seeking function of our adversarial system of criminal justice. I am unwilling to accept that proposition.

IV. Conclusion

I would remand this habeas application for evidentiary development of the claims in Applicant's suggestion to reconsider. Applicant raises serious allegations that call into question the professional conduct of the attorney that represented him both on direct appeal and in his initial writ before this Court. Because the Court does not and instead turns a blind eye to Applicant's allegations, I respectfully dissent.

FOOTNOTES

1.   Rule of Professional Conduct 1.01(b)(1) provides, “[i]n representing a client, a lawyer shall not neglect a legal matter entrusted to the lawyer.” Tex. Disciplinary Rules Prof’l Conduct 1.01(b)(1) (cleaned up). Rule 1.14(a)—now Rule 1.15(a)—provides, “[a] lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyer's possession in connection with a representation separate from the lawyer's own property.” Id. at 1.15(a). And Rule 1.14(c)—now Rule 1.15(c)—provides, “[w]hen in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and other person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest.” Id. at 1.15(c).

2.   Rule of Professional Conduct 3.01 provides, “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.” Tex. Disciplinary Rules Prof'l Conduct 3.01. Rule 3.03(a)(1) provides, “[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” Id. at 3.03(a)(1) (cleaned up). And Rule 8.04(a)(3) provides, “[a] lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Id. at 8.04(a)(3) (cleaned up).