EX PARTE SPEER v. << (2026)

ORDER

This is a subsequent application for a writ of habeas corpus filed under Texas Code of Criminal Procedure Article 11.071 § 5. Having found that Applicant made a prima facie showing under Article 11.071 § 5(a)(3), we remanded a single claim—Claim 4—to the convicting court for a merits review. The court has returned the case with findings of fact and conclusions of law recommending that relief be denied.

In Claim 4, Applicant alleged that trial counsel rendered ineffective assistance at the punishment phase of his 2001 capital murder trial by failing to investigate and present available mitigating evidence. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). On remand, the convicting court declined to hold an evidentiary hearing, presumed the truth of Applicant's mitigation proffer, found deficient performance, and recommended denying relief for want of prejudice.

We have independently reviewed the entire record. See Ex parte Garza, 620 S.W.3d 801, 808 (Tex. Crim. App. 2021). The convicting court's findings of fact are supported by the record, and we adopt them. As the ultimate fact finder, however, we review its conclusions of law independently and adopt only those consistent with this order. See Garza, 620 S.W.3d at 808.

First, we assume without deciding that counsel performed deficiently, and we apply the standard most favorable to Applicant: a reasonable probability that, but for counsel's deficient performance, at least one juror would have answered the mitigation special issue in favor of life. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Andrus v. Texas, 590 U.S. 806, 822, 140 S.Ct. 1875, 207 L.Ed.2d 335 (2020); Wiggins, 539 U.S. at 537–38, 123 S.Ct. 2527; cf. Ex parte Blue, 230 S.W.3d 151, 162–63 (Tex. Crim. App. 2007).

Second, we assume the truth and admissibility of Applicant's entire mitigation proffer. We credit in full Dr. Ouaou's neuropsychological evaluation and Mary Helen Martinez's declaration, as we do the remainder of the proffer the convicting court presumed true and admissible. We consider this evidence as bearing on the historical facts of Applicant's background and development available to be investigated at the time of trial.

Third, we place no reliance on any inference that the 1991 proceeding predicts how a later jury would assess Applicant's mitigation. The first jury determined only that Applicant committed capital murder for remuneration rather than the lesser offense of murder; because he was a juvenile, a life sentence followed automatically, and that jury never considered mitigation in deciding between life and death or assessed his moral culpability for purposes of punishment.

The question before us is thus a legal one on a presumed-true record, not a matter of credibility or unresolved fact. Crediting the entire proffer, Applicant has not shown a reasonable probability that at least one juror would have answered the mitigation special issue in favor of life. The same trauma-driven susceptibility to domination by others that allegedly mitigates Applicant's culpability also supports the State's case on future dangerousness. That susceptibility followed Applicant into prison, where—already serving a life sentence for capital murder—he killed again at a prison gang's direction. No single fact is dispositive, and the Eighth Amendment requires a reasoned moral response to the mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). But on this record the probative force of a capital murder committed while serving a life sentence for capital murder is substantial. Cf. Wong v. Belmontes, 558 U.S. 15, 27–28, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009).

We have considered, not discounted, the full proffer—the neuropsychological evidence of childhood trauma, head injuries, neglect, abuse, and drug exposure; Applicant's placement as a juvenile in adult penal settings; and the corroborating family, school, and prison declarations. See Garza, 620 S.W.3d at 809. Having considered all of Applicant's objections, we conclude that none, alone or together, alters the result.

We therefore hold that Applicant has failed to establish entitlement to habeas relief.

IT IS SO ORDERED THIS THE 20 DAY OF AUGUST, 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, ––– S.W.3d ––––, ––––, 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 ––––, 2025 WL 2151382, at *8 (Finley, J., dissenting).

Second, Applicant's claim had already been rejected during federal litigation. Id. at ––––, 2025 WL 2151382, 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.

Per curiam.

Finley, J., filed a concurring opinion in which Parker, J., joined. Yeary, J., concurred. Schenck, P.J., and Newell, J., dissented.