Andrus, Terence Tramaine ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,438-01
Ex parte TERENCE TRAMAINE ANDRUS, Applicant
ON APPLICATION FOR POST-CONVICTION
WRIT OF HABEAS CORPUS FROM CAUSE NO. 09-DCR-051034
IN THE 24OTH DISTRICT COURT
FORT BEND COUNTY
NEWELL, J., filed a dissenting opinion in which HERVEY,
RICHARDSON and WALKER, JJ., joined.
The United States Supreme Court unquestionably made mistakes
regarding this Court’s original order denying post-conviction relief in this
case.1 In his dissent, Justice Alito documented a number of instances in
which the Supreme Court erred in its legal analysis and its factual
representations.2 Today, the Court does a thorough job of further
1
Andrus v. Texas, 140 S. Ct. 1875, 1886 (2020).
2
Id. at 1887–1891 (Alito, J., dissenting).
Andrus Dissenting — 2
enhancing Justice Alito’s arguments.3
But the United States Supreme Court does not care. At one point
in his dissent, Justice Alito actually suggested that this Court was required
to shout our holding by using “all caps” or bold type to prevent any
misunderstanding.4 It did not matter. If the majority members of the
Supreme Court are unwilling to listen to these argument coming from
their own colleagues, I am skeptical that they will listen to this Court’s
detailed restatement of them.
This is why I cannot join the Court’s opinion in this case. The United
States Supreme Court is not last because it is always right, they are only
right because they are always last.5 Whatever else can be said of the
Supreme Court’s opinion, its characterization of the mitigation evidence
that Applicant’s trial attorney failed to uncover was integral to the
determination that Applicant’s attorney’s representation fell below
prevailing professional norms. This Court is not free to “re-characterize”
3
Maj. Op. at 13–25.
4
Id. at 1888 (Alito, J., dissenting) (“Perhaps the Court thinks the CCA should have
used CAPITAL LETTERS or bold type. Or maybe it should have added: “And we really mean
it!!!) (emphasis in original).
5
See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J. concurring) (“However,
reversal by a higher court is not proof that justice is thereby better done. There is no doubt
that if there were a super-Supreme Court, a substantial portion of our reversals of state
courts would also be reversed. We are not final because we are infallible, but we are
infallible only because we are final.”)
Andrus Dissenting — 3
that evidence contrary to the United States Supreme Court’s holding. We
are bound by the United States Supreme Court’s characterization.6
Further, I disagree with the Court’s application of the standard for
prejudice in cases involving the failure to investigate possibly mitigating
evidence.7 As we recently held in Ex parte Garza, all an Applicant must
show to establish that he was prejudiced by trial counsel’s deficient
performance is a showing that there is a reasonable probability that at
least one juror would have struck a different balance between the
aggravating and mitigating evidence and voted to spare Applicant’s life.8
Based upon the Supreme Court’s characterization of the mitigation
evidence in this case, Applicant has met that standard.9 And, to the
extent that the Supreme Court addressed the standard for prejudice we
are to apply, the Supreme Court clarified that we err to regard it as a
high one.10
6
See, e.g., State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998) (“When
we decide cases involving the United States constitution, we are bound by United States
Supreme Court case law interpreting it [.]”) (citing generally Samudio v. State, 648 S.W.2d
312, 314 (Tex.Crim.App. 1983)).
7
Maj. Op. at 14.
8
Ex parte Garza, 2021 WL 1397860 at *1 (Tex. Crim. App. Apr. 14, 2021).
9
Andrus, 140 S. Ct. at 1876–1881.
10
Andrus, 140 S. Ct. at 1886 n.6 (“The concurring opinion, moreover, seemed to
assume that the prejudice inquiry here turns principally on how the fact of this case
compare to the facts in Wiggins. We note that we have never before equated what was
Andrus Dissenting — 4
I share the Court’s frustration with the United States Supreme
Court’s analysis in this case. Doubtless other courts, lower on the court
structure pyramid, have experienced similar frustration regarding
holdings from this Court. Nevertheless, they are still bound by this
Court’s holdings just as we are by the holdings of the United States
Supreme Court. Because this Court does not properly apply controlling
Supreme Court precedent in this case, I dissent.
Filed: May 19, 2021
Publish
sufficient in Wiggins with what is necessary to establish prejudice.” (comparing Wiggins v.
Smith, 539 U.S. 510, 537–538, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“[T]he mitigating
evidence in this case is stronger, and the State’s evidence in support of the death penalty
far weaker, than in Williams, where we found prejudice as the result of counsel’s failure to
investigate and present mitigating evidence”) with Williams v. Taylor, 529 U.S. 362, 399,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding such prejudice after applying AEDPA
deference)).