Jean, Joseph ( 2023 )

In the Court of Criminal
Appeals of Texas
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No. WR-84,327-01
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EX PARTE JOSEPH FRANCOIS JEAN,
Applicant
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On Application for Writ of Habeas Corpus
Cause No. 1302120-A in the 230th District Court
Harris County
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YEARY, J., filed a dissenting opinion.
Today the Court reforms Applicant’s sentence from death to life
without parole, based on his claim, made for the first time on post-
conviction habeas corpus, that he is intellectually disabled. See Majority
Opinion at 3 (reforming Applicant’s sentence to life without parole based
on Atkins v. Virginia, 536 U.S. 304 (2002), Moore v. Texas, 581 U.S. 1(2017), and Moore v. Texas, 139 S. Ct. 666 (2019)). It does so without
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ever addressing (1) whether this claim, which was not raised in the trial
court, has been (or is subject to being) procedurally defaulted, or (2)
whether it should be subjected to a more rigorous standard of proof than
a preponderance of the evidence. 1 Because the Court grants relief
without first resolving these threshold issues, I respectfully dissent.
I. PROCEDURAL DEFAULT?
In June of 2002, in Atkins, the United States Supreme Court
declared that to execute a “mentally retarded” (now described as an
“intellectually disabled”) offender would violate the Eighth Amendment.
Applicant committed his capital offense years later, in April of 2010, and
he was tried in 2011. Nothing prevented him from complaining, at that
time—at his trial—that imposition of the death penalty against him
would violate the Eighth Amendment under Atkins. But he did not. And
neither did he raise it on direct appeal. Only now does he raise the
claim—for the first time in his initial application for writ of habeas
corpus under Article 11.071. TEX. CODE CRIM. PROC. art. 11.071. But
should he even be permitted to do so under these circumstances? The
Court does not say.
“It has become a staple in our habeas corpus jurisprudence that
1 This is hardly the first time the Court has granted Atkins relief
without first addressing every issue necessary to that disposition. See Ex parte
Lizcano, 607 S.W.3d 339 (Tex. Crim. App. 2020) (Yeary, J., dissenting)
(questioning whether it was appropriate for this Court to resolve the
intellectual disability claim itself when the jury’s resolution of that issue was
suspect under the first Moore opinion, rather than to return the case to the
trial court for a new resolution of the claim); Ex parte Williams, No. WR-
71,296-03, 2020 WL 7234532 at *2 (Tex. Crim. App. Dec. 2020) (Yeary, J.,
dissenting) (same) (not designated for publication); Ex parte Segundo, ___
S.W.3d ___, 2022 WL 1663956 at *7 (Tex. Crim. App. May 25, 2022) (Yeary, J.,
dissenting) (same).
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preservation of error is generally a prerequisite to being granted relief.”
Garza v. State, 435 S.W.3d 258, 261−62 (Tex. Crim. App. 2014).
“Generally, all of the reasons that support the need for a matter to have
been raised at trial when the matter is relied upon on direct appeal apply
equally or more forcefully when a matter is relied upon in postconviction
habeas corpus.” Id. at 262 (quoting George E. Dix & John M.
Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE
§ 59:7, at 810 (3d ed. 2011)). Nevertheless, the Court grants Atkins relief
in this case without even mentioning the fact that Applicant sought no
such relief from the judge or jury at his capital murder punishment
phase, much less asking itself whether that omission should constitute
a forfeiture, of any kind, in these post-conviction habeas corpus
proceedings. 2
This is not the first time in recent memory that the Court has
granted relief in post-conviction habeas proceedings while failing to
address a potential procedural default. Just one good example is Ex
parte Maxwell, 424 S.W.3d 66, 67 (Tex. Crim. App. 2014). There, the
applicant claimed that his mandatory life-without-parole sentence for a
2 This is true notwithstanding that the Court has oftentimes proclaimed
that issues of error preservation are “systemic,” meaning that an appellate
court may not reverse a conviction on direct appeal without first addressing
any such issue, even if the parties have not raised it. E.g., Darcy v. State, 488
S.W.3d 325, 327−28 (Tex. Crim. App. 2016). And on direct appeal of death
penalty capital cases in this Court, we have made it clear that the onus is on
the appellant either to show where in the record he has preserved his claim of
trial court error or to explain why preservation of the particular error he is
claiming on appeal is unnecessary under the framework of Marin v. State, 851
S.W.2d 275 (Tex. Crim. App. 1993). Leza v. State, 351 S.W.3d 344, 358 (Tex.
Crim. App. 2011). Why the Court would not impose a similar burden on
Applicant in his initial post-conviction habeas corpus application under Article
11.071 goes unexplained in its opinion today.
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crime committed when he was a juvenile violated the Eighth
Amendment as expounded by the United States Supreme Court in
Miller v. Alabama, 567 U.S. 460 (2012). The issue that the Court
explicitly addressed in Maxwell was the retroactivity of Miller. Once it
concluded that Miller had retroactive application, the Court simply
granted relief without independently inquiring whether the issue had
been (or had to be) preserved by a proper objection in the trial court.
Maxwell, 424 S.W.3d at 76.
When this manifest deficiency was later called to the Court’s
attention, in Garza, a majority maintained that it had in fact “held” in
Maxwell—if only “by necessary implication”—“that a claim asserting an
Eighth Amendment violation under Miller was not subject to procedural
default.” Garza, 435 S.W.3d at 261. In her dissenting opinion in Garza,
however, Presiding Judge Keller took issue with that conclusion. She
agreed that the Court should have addressed the procedural default
issue in Maxwell, but not that the Court in fact had addressed it, even
if only “by necessary implication.” Id. at 271−72 (Keller, P.J.,
dissenting).
Instead of assuming that we must have intentionally, but
silently, resolved the procedural default issue in the
convicted person’s favor because that is the only way in
which our disposition in Maxwell could have been correct,
we should admit that we made a mistake, overlooking an
issue that we should have addressed. * * * We should not
compound such a mistake by proceeding under the legal
fiction that our complete failure to address the issue was
actually a silent disposition.
Id. at 272 (Keller, P.J., dissenting). Today, the Court repeats the same
mistake it made in Maxwell: It grants relief—this time in an unsigned
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per curiam opinion—without expressly acknowledging, much less
resolving, the unavoidable issue of procedural default.
Perhaps today the Court would say that Applicant cannot have
been expected to raise the issue of intellectual disability at the time of
his trial because, as of that time, the United States Supreme Court’s two
Moore opinions had not been decided. It may be that the Court believes
that, until the Supreme Court disowned this Court’s opinion in Ex parte
Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), Applicant could
reasonably have believed that he could not possibly prevail on an Atkins
claim. See Majority Opinion at 2 (pointing out that the Supreme Court
“rejected . . . our use of the Briseno factors” for determining intellectual
disability in its first Moore opinion). This would constitute a kind of
“right-not-recognized” exception to the ordinary preservation of error
requirement—an exception that might formerly have been thought to
apply to excuse Applicant’s failure to object at trial. 3
To this potential argument, my reply is two-fold.
In the first place, Atkins had long been in place by the time of
Applicant’s 2011 trial. If he thought Briseno was an impediment to
succeeding on an Atkins claim at the trial court level, he should have
preserved the claim anyway and then argued on appeal, just as Moore
himself did, that Briseno was wrongly decided.
Second, and more fundamentally, this Court has in any event
3 See Ex parte Chambers, 688 S.W.2d 483, 486 (Tex. Crim. App. 1984)
(Campbell, J., concurring, joined by five other judges) (“This Court has for at
least twelve years held that a defendant has not waived his right to assert a
constitutional violation by failing to object at trial if at the time of his trial the
right had not been recognized.”).
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rightly rejected the “right-not-recognized” rubric in favor of the
scheme—for determining whether error must be preserved—that the
Court articulated in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.
1993). 4 See Sanchez v. State, 120 S.W.3d 359, 365−67 (Tex. Crim. App.
2003) (“The ‘right not recognized’ exception to the contemporaneous-
objection rule relates to a kind of fundamental error . . . that Marin
generally eliminated from our jurisprudence.”); see also Karenev v. State,
281 S.W.3d 428, 433 (Tex. Crim. App. 2009) (same); Ex parte Moreno,
245 S.W.3d 419, 423 n.15 (Tex. Crim. App. 2008) (same); Garza, 435
S.W.3d at 275 (Keller, P.J., dissenting) (pointing out that, “[i]n Sanchez,
[the Court] expressly stated that the ‘right not recognized’ doctrine is
inconsistent with our current law of error preservation”) (quoting
Sanchez, 120 S.W.3d at 365). 5
4 Marin described three categories of “rules” for determining the
applicability of principles of procedural default. 851 S.W.2d at 279. It described
category one, which it called “absolute requirements and prohibitions,” in these
terms:
Finally, absolute requirements and prohibitions, like
rights that are waivable only, are to be observed even without
partisan request. But unlike waivable rights, they can’t lawfully
be avoided even with partisan consent. Accordingly, any party
entitled to appeal is authorized to complain that an absolute
requirement or prohibition was violated, and the merits of his
complaint on appeal are not affected by the existence of a waiver
or forfeiture at trial.
851 S.W.2d at 280.
5See generally Proenza v. State, 541 S.W.3d 786, 794−95 (Tex. Crim.
App. 2017), and cases cited therein (observing that questions of so-called
“fundamental” error, which determines whether contemporaneous-objection
rules apply, are now exclusively considered within the Marin framework).
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Perhaps, instead, the Court assumes that an Atkins claim, if
borne out, would fall within Marin’s first category of claims, which may
be raised for the first time even in a post-conviction writ application. In
Ex parte Moss, 446 S.W.3d 786, 788−89 (Tex. Crim. App. 2014), for
example, the Court recognized that a claim that a trial court lacked
personal or subject-matter jurisdiction may be raised for the first time,
even in an initial post-conviction habeas proceeding, because
jurisdiction is simply not a matter that is optional with the parties. 6 The
Court might believe, similarly, in this case, that an Atkins claim is a
category one claim under Marin—that to execute an intellectually
disabled defendant is so antithetical to the consensual values of
American society that a habeas applicant’s wish to avoid it is simply not
subject to forfeiture by a failure to invoke his Eighth Amendment claim
at the time of trial. If that is indeed what the Court believes, it should
expressly say so, and explain why it is so, before granting relief based on
such a claim for the first time in an unsigned per curiam opinion.
II. HIGHER STANDARD OF PROOF?
But even if the Court were to conclude that an Atkins claim does
fall within Marin’s first category, and therefore may be raised for the
first time in an initial post-conviction setting, an additional question
still looms. Should an applicant who could have made a record at trial
in support of his Atkins claim, but did not, be required to satisfy a higher
level of proof before obtaining relief on that claim when raising it for the
first time in an initial post-conviction habeas corpus proceeding? Should
6 See Marin, 851 S.W.2d at 279 (“The clearest cases of nonwaivable,
nonforfeitable systemic requirements are laws affecting the jurisdiction of the
courts.”).
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he be required to establish intellectual disability to a level of confidence
greater than by a preponderance of the evidence?
An Atkins claim is not like most category one Marin post-
conviction habeas corpus claims. Most category one Marin claims are
based upon facts already apparent from the appellate record; the record
of the trial already provides a basis for raising the claim, and yet the
applicant failed to raise it at trial. 7 Ordinarily, we would say that a
habeas applicant has forfeited such a claim. Garza, 435 S.W.3d at261−62. But if it is a category one Marin claim, we do not invoke
principles of forfeiture; we will grant the applicant relief so long as the
appellate record bears the claim out.
But most claims brought in post-conviction habeas corpus
proceedings are not predicated on facts already developed in the
appellate record. If a claim is of federal constitutional dimension, and if
it is based upon extra-record facts, it is typically cognizable. In fact, that
is primarily what post-conviction habeas corpus proceedings are all
about: to provide the convict with a forum in which to prove extra-record
facts which, if true, would entitle him to relief notwithstanding the lack
of any apparent deficiency in the appellate record.
Applicant’s Eighth Amendment claim of intellectual disability
could have been raised at trial, since he was tried post-Atkins. If it is a
7 The Court’s opinion in Proenza provides a ready example. There, the
question was whether the appellant could complain for the first time on appeal
that a colloquy between the trial court and a witness violated Article 38.05 of
the Code of Criminal Procedure, which prohibits the trial court judge from
commenting on the evidence in the course of ruling on its admissibility. 541
S.W.3d at 791. The question was whether this purely record-based claim was
subject to forfeiture at trial for a failure to object. The case did not involve
additional fact development.
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category one Marin claim, the Court would still allow him to raise it for
the first time in a post-conviction writ proceeding. But to prevail on his
claim, he cannot rely on the appellate record, since he did not attempt to
litigate intellectual disability at trial. It is not, therefore, a record-based
claim. But it could have been, had Applicant taken the opportunity to
develop his claim at trial. He could also, then, have raised it on appeal.
In a very real sense, Applicant bears responsibility for not having
raised this issue either at trial or, later, on direct appeal. And because
he did not, though he could have, perhaps there should be some
consequence. Perhaps we should conclude that he may raise his claim
for the first time in post-conviction habeas corpus proceedings, because
it is a category one Marin claim, but he will nonetheless be required to
establish the truth of his claim by a higher level of proof than would
ordinarily be the case in an initial writ application.
There are analogous precedents for such a conclusion. Suppose,
for instance, that Applicant had complained for the first time on appeal
that the trial court failed to submit an Atkins instruction to the jury at
the conclusion of the punishment phase of his capital trial. Even though
he neither requested such an instruction at trial nor objected to its
absence, if there had been at least some evidence of intellectual
disability presented at his trial, such that Atkins became a part of “the
law applicable to the case[,]” under Article 36.14 of the Code of Criminal
Procedure, he might have been permitted to raise this issue for the first
time on appeal. TEX. CODE CRIM. PROC. art. 36.14 (requiring the trial
court judge to “deliver to the jury” “a written charge distinctly setting
forth the law applicable to the case”). But he would have been required,
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in that event, to identify a greater level of harm—“egregious harm”—
from the record before he would be entitled to appellate relief, under
Article 36.19 of the Code as construed by this Court in Almanza. See
Almanza v. State, 686 S.W.2d 157, at 171 (Tex. Crim. App. 1985) (op. on
reh’g) (“[I]f no proper objection was made at trial and the accused must
claim that the error was ‘fundamental,’ he will obtain a reversal only if
the error is so egregious and created such harm that he ‘has not had a
fair and impartial trial’—in short, ‘egregious harm.’”) (quoting TEX.
CODE CRIM. PROC. art. 36.19).
Similarly, suppose Applicant had not raised Atkins in this, his
initial, application for writ of habeas corpus, but only raised it for the
first time in a subsequent writ application. This Court has decided that
even a category one Marin claim will be forfeited if not raised in an
initial writ application, unless it otherwise satisfies the “applicable
procedural bars” of Article 11.071, Section 5. See Moss, 446 S.W.3d at789−90 (“[W]e caution individuals seeking habeas relief in a subsequent
writ application that Sledge continues to bar an applicant from
obtaining relief on a jurisdictional claim in a subsequent application if
the applicant cannot overcome applicable procedural bars.”) (citing Ex
parte Sledge, 391 S.W.3d 104, 106−09, 111 (Tex. Crim. App. 2013)); TEX.
CODE CRIM. PROC. art. 11.071, § 5.
But even when a subsequent habeas applicant can overcome the
procedural hurdle of Article 11.071, Section 5, such that his Atkins claim
will be entertained, even in a subsequent writ application, this Court
has held that he will be subjected to a heightened standard of proof
before he may obtain relief on that claim.
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Applying Section 5(a)(3) of Article 11.071, this Court has
concluded, in Ex parte Blue, that a subsequent writ application raising
Atkins must contain sufficient facts to show, by clear and convincing
evidence, that no rational fact finder would fail to find him to be
intellectually disabled. 230 S.W.3d 151, 162 (Tex. Crim. App. 2007).
Thus, while we permitted the subsequent habeas applicant in Blue to
proceed to the merits of his Atkins claim despite his failure to have
raised it in his initial writ application, we applied a far more rigorous
standard of proof than merely showing that he was intellectually
disabled by a preponderance of the evidence, as would have been the
case had he raised it in his initial writ (at least from a trial that preceded
Atkins). See id. (observing that “[t]he state habeas applicant who alleges
that he is mentally retarded in an initial post-conviction writ application
must prove it by a preponderance of the evidence in order to obtain relief
on his claim”).
It is true that in each of these scenarios, the heightened standard
of proof that must be applied derives from a provision of the Code of
Criminal Procedure. There is, at present, no comparable Code provision
that would speak to a specific standard of proof that should apply to an
initial post-conviction habeas applicant who could have raised an Atkins
claim at trial—but did not. But then, the Court has long been operating
in a legislative limbo with respect to procedures that would govern
Eighth Amendment Atkins claims. This Court has been improvising for
the entire twenty-year-plus “legislative interregnum” since Atkins was
decided, with a view to “provide the bench and bar with” what the Court
hoped would be only “temporary guidelines in addressing Atkins
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claims.” Briseno, 135 S.W.3d at 5. All the while the Court has implored
the Legislature to fill the regulatory void. See, e.g., In re Allen, 462
S.W.3d 47, 53−54 (Tex. Crim. App. 2015) (“In terms of issues
surrounding intellectual-disability, we still find ourselves in the same
‘interregnum’ that existed in 2004. * * * We now make explicit what
we before expressed only tacitly: Legislation is required.”).
In the absence of such legislative guidance, this Court should at
least follow the principle that the Legislature seems to follow when faced
with situations where litigants procedurally default an issue in an
earlier setting that nevertheless—because the matter is so important to
the proper functioning of our system—must be later reached by a
reviewing court. In such situations our laws would ordinarily impose a
heightened standard of proof to an initial habeas applicant who could
have raised Atkins at trial. And perhaps that heightened burden might
even be something somewhat less onerous than the Blue standard for
subsequent writs, but at least marginally more taxing than the ordinary
preponderance standard. 8
Otherwise, a capital defendant has no incentive at all to litigate
his intellectual disability claim at trial. And this is especially apparent,
8 Marin itself is really a court-made rubric. The Court did not derive it
from the language of then-Rule 52(a) of the Rules of Appellate Procedure—now
Rule 33.1(a). Instead, the Court applied it as a kind of judicial gloss on the
formal contemporaneous objection rule, observing that it “applies only to
actions of the trial judge concerning which a party forfeits the benefit of a right
belonging to him if he does not complain about it at trial. The rule does not
apply to rights which are waivable only or to absolute systemic requirements,
the violation of which may still be raised for the first time on appeal.” 851
S.W.2d at 280. To the extent that Marin represents, after all, a court-made
doctrine, we should modify it where appropriate, in the absence of controlling
legislation.
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as cases like this one bear out, when such a defendant might expect a
more propitious outcome in a first time, de novo determination of the
claim in this Court, under the same forgiving preponderance standard
he would have had to meet to prove his case to a jury of his peers. Jurors,
after all, would have had the benefit—that we do not enjoy—of actually
judging the weight and credibility of the testimony of the defendant’s
experts, family members, and friends, against their own direct,
eyewitness observations of the defendant in the courtroom, in addition
to all the other evidence that might weigh against his claim. To that end,
the United States Supreme Court has recognized that a trial on the
merits is “the ‘main event,’ so to speak,” even for claims of federal
constitutional dimension. Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
Even if the Court were to conclude that Atkins is a category one
Marin claim—that an initial habeas applicant may raise for the first
time in an initial writ application—then, if he could have raised his
Atkins claim at trial, we should make his omission consequential in
some way, if only to avoid such anti-systemic forum shopping. Imposing
a higher standard of proof would serve that purpose.
III. CONCLUSION
The Court grants relief on Applicant’s Atkins claim without even
considering how these substantial issues should be resolved. I would at
least file and set the case to address them, and I would certainly not
grant relief in a per curiam opinion that fails to do so. Because the Court
does, I respectfully dissent.
FILED: April 19, 2023
PUBLISH