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Court of Criminal Appeals of Texas.


NO. WR-81,579-01

Decided: November 02, 2016


I concur in this Court's order that declines to grant post-conviction habeas relief to Mabry J. Landor III, applicant. I write separately to express my judgment that applicant's grounds one through four challenging the ineffectiveness of trial counsel are more properly resolved on their merits rather than on the basis of a procedural bar, as this Court's order states. In close cases like this one, it often comes down to a judgment call whether a case should be resolved through the application of a procedural bar, as this Court's majority order has determined, or on the merits of the actual arguments and evidence, as I would determine it. Particularly in cases involving a death sentence, in my estimation, when there is a close question as to whether a claim should be procedurally barred, the more appropriate course is to decide the case on the merits by closely examining the arguments and actual evidence as it appears in the proceeding before the Court. In my experience, a hasty application of a procedural bar could lead to unjust results in some cases. But, because I agree with this Court that applicant's requested relief should be denied, albeit by examining the actual merits of the arguments rather than applying a harsh procedural bar, my dispute with the majority order and concurring opinions amounts to nothing more than a thousand angels dancing on the head of a pin.

Here, applicant has presented new material evidence, the affidavit of trial counsel, that was not considered by this Court in its direct-appeal analysis of the issue of ineffective assistance of counsel. This Court has repeatedly held that, when new facts are presented on habeas, it is appropriate to address the merits of an ineffective-assistance-of-counsel claim, even if it had already been considered on direct appeal with an undeveloped record. See, e.g., Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (holding that, when the “direct appeal record contained insufficient evidence to evaluate the ineffective assistance issue, ․ the rejection of [the applicant's] claim on direct appeal does not bar relitigation of his claim on habeas corpus to the extent that applicant seeks to gather and introduce additional evidence not contained in the direct appeal record”). This principle would appear to apply to the present situation, given that applicant has now presented an affidavit from counsel that was not before the Court on direct appeal, and given that this Court indicated in its opinion on direct appeal that it was denying applicant's ineffectiveness complaints, in part, because counsel had not been given an opportunity to respond to the allegations. See Landor v. State, No. AP-76,328, slip op. at 39 (Tex. Crim. App. June 29, 2011) (not designated for publication) (“We also observe that no motion for new trial was filed and that trial counsel has not been given an opportunity to respond to appellant's allegations. Generally, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. We ordinarily require that counsel be afforded the opportunity to respond to a defendant's allegations before finding counsel deficient unless the challenged conduct is so outrageous that no competent attorney would have engaged in it.”) (citations and quotations omitted). Although it is true that this Court on direct appeal also addressed the Strickland prejudice prong as an alternative basis for overruling applicant's ineffectiveness complaints, that analysis was predicated on the undeveloped record that existed at that time, and thus the prejudice analysis did not take into account the new evidence that was introduced through this habeas application. To hold that applicant's claims are procedurally barred because this Court has already held against him on the issue of prejudice in a prior proceeding, even though he has presented new evidence of ineffectiveness, would appear to add a new layer of complexity into Torres. See Torres, 943 S.W.2d at 475. That type of hair splitting merely to get past a procedural bar so as to permit consideration of the evidence presented in a habeas application seems unwise because this Court should be more concerned with substantively reaching proper decisions than with finding procedural bars to avoid even considering the merits of the arguments presented by the litigants. In any event, in the present case, such an approach does not appear to be required by, or even necessarily consistent with, this Court's precedent.

In sum, I would not reject applicant's complaints about ineffective assistance of trial counsel on the basis that they have already been addressed by this Court on direct appeal with an undeveloped record. Rather, I would instead reject applicant's ineffective-assistance complaints on the merits. I, therefore, concur in this Court's order.

ALCALA, J., filed a concurring opinion.

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