Flowers, Elmo Dewayne

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
Nos. WR-93,807-01 & WR-93,807-02
EX PARTE ELMO DEWAYNE FLOWERS, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 12-CR-0609-83-1 & 12-CR-0610-83-1
IN THE 56TH DISTRICT COURT
GALVESTON COUNTY
SLAUGHTER, J., filed a dissenting opinion in which YEARY, J., joined.
DISSENTING OPINION
I dissent to the Court’s decision to remand the applications to the trial court for
further development of Applicant’s claims when Applicant has failed to abide by the clear
requirements of the Rules of Appellate Procedure governing post-conviction habeas
applications. Applicant, who is represented by counsel, failed to file any specific factual
allegations in his original application and failed to file any memorandum of law, instead
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raising only generic allegations of ineffective assistance of trial counsel. The habeas court,
understandably, found no disputed facts requiring resolution and recommended denial of
relief based on Applicant’s bare-bones application that failed to meet the basic pleading
requirements for an Article 11.07 application. But now that the application and habeas
court’s recommendation to deny have been forwarded to this Court, Applicant has filed an
amended application in the trial court including additional claims and factual allegations.
He has also filed motions in this Court asking us to remand the applications, or,
alternatively, to dismiss them without prejudice so that he may refile the applications and
expand the record to allow for full consideration of his new claims. In essence, it appears
that counsel failed to follow the rules and now wants a do-over. Though I acknowledge
that prior opinions from this Court allow applicants to file amended or supplemental
applications under some circumstances, I disagree that counsel should be permitted to game
the system in this manner. Allowing counsel to file a clearly incomplete application which
he may then freely amend even after the State has responded and the trial court has
forwarded the application creates inefficiencies in the system and wastes judicial resources.
Because I believe the Court’s rules in this area need reexamination and should not be
interpreted to permit a remand absent a showing of good cause for the delay in raising the
additional allegations, I respectfully dissent.
I. Background
A. Trial and Guilty Pleas
Around ten years ago, Applicant Elmo Flowers was charged with two counts of
aggravated assault with a deadly weapon for cutting two women—Mary Rawls and
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Velmeshia Rawls1—with a knife as part of the same incident. See TEX. PENAL CODE §
22.02(a)(2). Because Applicant already had at least two prior felony convictions (attempted
murder and retaliation), if convicted, he was facing a punishment range of 25 years to life
in prison. See id. § 12.42(d).
Applicant initially pleaded “not guilty” to the charges, and a jury trial commenced
on March 4, 2013. Victim Mary Rawls appeared for trial and was sworn in as a witness.
The second victim, Velmeshia Rawls, however, did not appear to be sworn in for trial. In
an attempt to secure her presence, the trial judge issued a writ of attachment. After selecting
a jury, hearing opening statements, and after the testimony of a few witnesses, but before
either Mary or Velmeshia was called to testify, Applicant entered into a plea agreement
with the State. In exchange for pleading guilty to both charges, he received a 25-year
sentence on each charge to run concurrently. The writ of attachment for Velmeshia Rawls
was returned unexecuted. Applicant did not appeal his convictions.
B. Writ Applications
On April 18, 2022, Applicant, through habeas counsel, filed in the trial court initial
applications for postconviction writs of habeas corpus for both cases—more than nine
years after pleading guilty to the charges. In this initial pleading, he claimed that his pleas
were involuntary based on trial counsel’s ineffective assistance. While Applicant alleged
that his trial counsel was deficient because he failed to act, Applicant did not identify any
1
This victim’s name is spelled two different ways throughout the record, as Velmeisha and
Velmeshia. Because Velmeshia appears to be the predominant version, this is the spelling I will
employ.
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specific omissions or failures by trial counsel particular to these cases. Instead, his
pleadings were entirely generic.2 His pleadings also failed to mention or address any
prejudice that he may have suffered. Applicant did not file any memorandum or additional
information in support of the allegations.
On May 16, 2022, the State filed a response to Applicant’s writ applications and
served the response on habeas counsel. The State specifically noted that, based upon the
applications’ bare allegations and conclusory statements, “the record before this court is
sufficient to enable the court to resolve this matter. Thus, there is no need for the court to
issue any order designating issues of fact or for the court to convene any fact-finding
hearing.” That same day, the habeas judge, who was also the trial judge for the underlying
2
Those allegations were:
1. Counsel failed to adequately advise Applicant how the law applied to the facts of the case,
and to ensure that his plea was knowing and voluntary.
2. Counsel failed to make a meaningful effort to negotiate a plea bargain, to advise Applicant
accurately concerning whether to accept a plea offer, and to advise Applicant regarding the
existence of certain evidence prior to his plea.
3. Counsel failed to subject the State’s case to meaningful adversarial testing.
4. Counsel failed to confer adequately with Applicant sufficiently to prepare a defense, and
failed to conduct a meaningul [sic] and independent investigation of the facts, to interview
both prosecution and defense witnesses, and to discover witnesses and evidence that could
have aided in the preparation of Applicant’s defense.
5. Counsel failed to conduct an adequate interview of Applicant, and to discover, request,
obtain, and review evidence.
6. Counsel failed to consult expert witnesses and employe [sic] private investigators, and
failed to provide accurate and complete advice concerning the defenses, remedies, rights,
and options available to Applicant.
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cases, entered findings of fact and conclusions of law recommending that relief be denied
in each case. Writ records were then forwarded to this Court on May 20, 2022.
Applicant never filed any objections to the habeas court’s findings of fact and
conclusions of law. Instead, on June 6, 2022, more than a month after the initial writs were
filed and three weeks after the habeas court entered its findings and conclusions, habeas
counsel filed amended applications providing more detailed allegations to support his claim
of trial counsel’s ineffectiveness, and also raising an additional claim under Brady v.
Maryland.3 Specifically, in the amended filings, Applicant claims that a week before trial,
victim Velmeshia Rawls changed her story and told the prosecutor that, on the date of the
offense, she was trying to kill herself with a knife because she became upset when she
discovered that Applicant was cheating on her. She claims that Applicant tried to stop her
from harming herself and she was cut in the scuffle. Based on this new factual allegation,
Applicant alleges that either the State failed to timely turn this information over to the
prosecution, or, alternatively, his trial counsel failed to adequately bring this information
to his attention prior to his guilty pleas. Applicant, however, does not provide any
explanation for how this information would have affected his decision to plead guilty with
respect to the assault on the second victim, who was also cut during the incident but
apparently did not recant the accusations of assault against Applicant.
The day after filing the amended applications in the trial court, habeas counsel filed,
with this Court, motions to remand the habeas applications or, alternatively, motions to
3
373 U.S. 83 (1963).
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dismiss without prejudice so that he could refile the applications with the new allegations.
In his motions, counsel complained that he had not included specific factual allegations in
the initial filing because the specific facts would not fit on the Article 11.07 form. He also
claimed that he had planned to file memoranda after the State responded but did not have
time to do so before the habeas court issued its findings of fact and conclusions of law.
Habeas counsel, however, gave no explanation as to why he failed to file his memoranda
with the initial applications, nor did he explain why he failed to file objections to the habeas
court’s findings of fact and conclusions of law.
II. Texas Rule of Appellate Procedure 73: Postconviction Applications
for Writs of Habeas Corpus
Rule 73 of the Texas Rules of Appellate Procedure provides clear instructions for
the filing and consideration of postconviction applications for writs of habeas corpus under
Article 11.07 of the Code of Criminal Procedure. Rule 73.1 specifies the required form and
contents of the application. TEX. R. APP. P. 73.1. In terms of content, the Rule requires the
applicant to “provide all information required by the form. The form must include all
grounds for relief and set forth in summary fashion the facts supporting each ground. Any
ground not raised on the form will not be considered. Legal citations and arguments may
be made in separate memorandum.” TEX. R. APP. P. 73.1(c) (emphasis added). This
memorandum “shall” also comply with the rules pertaining to length and format. TEX. R.
APP. P. 73.1(d). Importantly, Rule 73.2 allows this Court to dismiss any application that
does not comply with the rules. TEX. R. APP. P. 73.2.
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Once the trial court issues its findings of fact and conclusions of law, Rule 73.4
affords an applicant ten days to file any objections. TEX. R. APP. P. 73.4(b)(2). The Rules
also reflect time limits for resolution of an application, providing that on the 181st day from
the date of receipt of the application by the State, the application must be forwarded to this
Court unless an extension has been granted. Id. R. 73.4(b)(5); see also R. 73.5 (providing
that “[w]ithin 180 days from the date of receipt of the application by the State, the
convicting court shall resolve any issues that the court has timely designated for
resolution.”).4
After the application and writ record have been forwarded to this Court, Rule 73.7
governs consideration of new evidence. TEX. R. APP. P. 73.7. The Rule stipulates that a
party seeking to have this Court consider evidence that was not filed in the trial court “must
comply with the following procedures or the evidence will not be considered.” Id.(emphasis added). In cases like this one, where the Court has not yet ruled on, or otherwise
filed and set the case, Rule 73.7(b) applies. This Rule specifies that the party wishing to
include new evidence “must file in the Court of Criminal Appeals a motion to stay the
proceedings pending the filing of the evidence in the trial court.” TEX. R. APP. P. 73.7(b).
Such a motion “should describe the evidence the party intends to file and explain its
4
I note here that Article 11.07 itself contains several additional time limits: the State has 30 days
after receipt of the application to file a response in the trial court, and the trial court then has an
additional 20 days to enter any order designating issues. See TEX. CODE CRIM. PROC. art. 11.07, §
3(b), (c). If the convicting court determines there are no controverted issues in need of resolution,
then the clerk “shall immediately transmit to the Court of Criminal Appeals a copy of the
application, any answers filed, and a certificate reciting the date upon which that finding was made.
Failure of the court to act within the allowed 20 days shall constitute such a finding.” Id. art. 11.07,
§ 3(c).
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evidentiary value.” Id. If this Court grants the motion, then it will specify a time frame for
the new evidence to be filed in the trial court. Id. Taking the language from Rule 73.7 as a
whole, the Rule is clear that this Court will not consider the new evidence if a party fails
to file a motion to stay the proceedings.
The provisions in Rule 73 collectively reflect a clear purpose to ensure the efficient
and speedy resolution of Article 11.07 applications. However, as discussed below, this
Court’s opinions permitting supplemental claims to be freely raised after the filing of the
initial application undermine this purpose.
III. Rules for Amended Applications / Supplemental Claims and
Late-Stage Dismissals: Ex parte Saenz and Ex parte Speckman
In Ex parte Saenz, this Court held that applicants should be allowed to amend or
supplement their initial applications even after an application has been forwarded to this
Court, so long as this Court has not yet filed and set the case or ruled on its merits. 491
S.W.3d 819 (Tex. Crim. App. 2016). Specifically, Saenz provided that, “when an applicant
files amended or supplemental pleadings raising additional claims before we have disposed
of his pending application, we consider the merits of his claims, so long as the pleadings
comply with the rules and procedures in Article 11.07 and Rule of Appellate Procedure
73.1, and so long as the claims are otherwise cognizable and ripe for review.” Id. at 824-
25 (emphasis added). In support, the Court pointed to cases reflecting a “historical
willingness” to consider the merits of amended or supplemental pleadings in the initial
habeas proceeding, based in part on the strict applicability of the bar on subsequent writ
applications and the clear legislative intent to afford applicants a single “full bite” at the
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habeas apple. Id. But the Court also cautioned that supplemental or amended pleadings
would not be considered in all cases. An applicant’s delay in taking action to amend or
supplement the pleadings could, at least in theory, result in a supplemental filing being
disallowed under the doctrine of laches. Id. Saenz also recognized that once this Court has
filed and set a case for a decision on the merits, the Court would not consider supplemental
pleadings at that late juncture. Id.A year later, in Ex parte Speckman, the Court addressed the related topic of late-
stage motions to dismiss a habeas application that has already been forwarded to this Court.
537 S.W.3d 49 (Tex. Crim. App. 2017). There, similar to the instant case, the application
had been recommended for denial by the trial court and forwarded to this Court. But the
Applicant then filed a motion to dismiss the application without prejudice so that he could
re-file it with additional claims and allegations. The Court held that, as a general matter,
such motions should be denied absent a showing of good cause. See id. at 52 (recognizing
that interests in finality of convictions and preservation of judicial resources were
“important considerations that weigh heavily against liberally permitting late-stage
dismissals without a showing of good cause”). In the course of reaching this holding,
Speckman stated that permitting late-stage dismissals “may encourage
premature habeas applications that should not have been filed until after they had been
fully researched and developed. This Court has previously explained that an initial Article
11.07 application should present all possible claims for relief and should be filed only after
an applicant has fully researched and developed all of his claims.” Id. (emphasis added).
But the Court also reiterated its holding from Saenz—that is, that as an alternative to
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dismissal, an Applicant may pursue an amended or supplemental application to receive
merits consideration of any claims or factual allegations he mistakenly omitted from the
original filing. Id. at 55 (noting that, in Saenz, we had considered an additional claim raised
in a supplemental pleading around one year after the initial application was filed). The
Court observed that the holding permitting supplemental applications in Saenz was not
without limitations, but generally speaking, Saenz “makes clear that, in most situations, an
applicant may file an amended or supplemental application raising new claims during the
time that his initial application remains pending. Supplementing or amending an existing
application may be an adequate alternative to a late-stage dismissal without prejudice.” Id.
at 56.
IV. This Court should require a showing of good cause to justify a remand
under these circumstances.
While even Saenz noted that we should consider amendments “so long as the
pleadings comply with the rules and procedures in Article 11.07 and Rule of Appellate
Procedure 73.1,” this Court has routinely ignored the compliance-with-the-rules-and-
procedures aspect of this holding. The applicable procedural rules reflect the need for
efficiency and conservation of judicial resources in the postconviction habeas fact-finding
process. Applicants are required, to the best of their ability, to plead specific facts in support
of the application. Grounds not properly raised “will not be considered.” TEX. R. APP. P.
73.1. The rules also contain strict time limits for the filing of objections and the resolution
of claims. See id. R. 73.4, 73.5. And, importantly, if an applicant wishes to have this Court
consider new evidence after an application has already been forwarded from the trial court,
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he must first seek permission from this Court by filing a motion for a stay of the
proceedings, otherwise the new evidence “will not be considered.” Id. R. 73.7.
What is the point of these provisions if an applicant is permitted to file an application
with no specific factual allegations and then wait until after the application has been
forwarded to file additional claims and allegations? Particularly in the case of an applicant
who is represented by counsel, I cannot conceive of why this Court should condone such a
practice, thereby causing the trial court and State to expend resources in responding to the
initial application and entering findings, only to then permit a complete re-do of the
proceedings by remanding for consideration of new claims that plainly should have been
raised in the initial filing. This situation raises the precise concern we addressed in
Speckman when we noted that allowing litigants a free do-over may encourage premature
filings before the claims have been “fully researched and developed,” in conflict with the
clear pleading requirements governing Article 11.07 applications. See Speckman, 537
S.W.3d at 52. Such practices may also encourage gamesmanship. Id. at 52-53 (noting that
procedural tactics such as a voluntary dismissal “could be misused by an applicant as a
means of discovery of the State’s response to his claims and of the habeas court’s view of
his claims, which he could then use to reformulate his position to attempt to circumvent
those positions.”). This Court should not condone practices that subvert the clear
requirements in the applicable rules of appellate procedure, not to mention principles of
finality, fairness, and efficiency.
Moreover, the Court’s underlying reasoning in Saenz for allowing applicants to
freely amend their applications was flawed from the outset. It is perhaps true that, in some
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limited situations, permitting an application to be amended or supplemented after it has
been forwarded to this Court is necessary for equitable reasons. But this should be the
exception, not the general rule. Contrary to the Court’s suggestion in Saenz, there is nothing
unfair about expecting applicants to fully investigate their claims and bring their allegations
at the initial pleading stage. Such a requirement in no way deprives them of their “full bite”
at the habeas apple. If new facts emerge after the application has been filed and these new
facts give rise to new allegations or claims, then that would likely justify an amended filing
if an applicant can show that he exercised reasonable diligence in preparing his initial
application. But if, as here, counsel is simply unprepared and chooses to file an incomplete
application, I can see no reason why this Court should excuse an applicant from meeting
basic pleading and procedural requirements under those circumstances. Freely permitting
all applications to be amended or supplemented even after they have been forwarded,
without requiring any showing as to why such supplementation or amendment is justifiable,
removes any incentive for applicants to comply with the procedural rules in the first place.
It also drags out the habeas fact-finding process and imposes a significant strain on judicial
resources. Given these concerns and the circumstances before us, this Court should take
this opportunity to revisit the Saenz rule and either require applicants to actually follow the
Rules or at least require some minimal showing of good cause before an applicant is
afforded a remand under these circumstances.
V. This Applicant should not receive a remand absent a showing of
good cause.
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The instant situation exemplifies the problems with the Court’s current approach.
Here, Applicant filed bare-bones writ applications alleging ineffective assistance of trial
counsel, without alleging any specific facts to support his claims. His allegations failed to
mention or address prejudice at all. He did not file any memoranda or additional
information in conjunction with his applications. And, after the trial court entered its
findings of fact and conclusions of law rejecting the bare-bones application, Applicant
failed to file any objections within ten days, as required by Rule. 73.4(b)(2). After the writ
application and record were forwarded to this Court, Applicant never filed a motion to stay
the proceedings pending the filing of his new evidence in the trial court, as required by
Rule 73.7(b) for the consideration of new evidence. Instead, Applicant filed a Motion to
Remand. In all of these ways, Applicant has wholly failed to comply with the applicable
Rules of Appellate Procedure.
But, rather than requiring Applicant to follow the rules, this Court instead remands
these applications, thereby requiring the habeas court and the State to start again from the
beginning. As noted above, this system disincentivizes habeas attorneys and applicants
from following the rules, as this Court will give them their desired relief anyway. In the
absence of any showing of good cause as to why Applicant, through his counsel, failed to
properly file his allegations when he filed the initial application, I would simply deny relief
at this juncture.
For the foregoing reasons, I respectfully dissent.
FILED: December 21, 2022
PUBLISH