# Ex Parte Banks > Court of Criminal Appeals of Texas · March 29, 1989 · 769 S.W.2d 539 URL: https://www.frixlaw.com/law-library/cases/9660581 ## Case - **Full name:** Ex Parte Delma BANKS, Jr. - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 29, 1989 - **Citations:** 769 S.W.2d 539; 1989 Tex. Crim. App. LEXIS 71; 1989 WL 29611 - **Precedential status:** Published - **Opinion:** Dissent by Teague - **Judges:** Miller, Clinton, Teague - **Cited by:** 103 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9660581 ## How later opinions describe it (automated extraction) - holding “the Great Writ should not be used to litigate matters which should have been raised on appeal” ## Opinion text TEAGUE, Judge, dissenting. “The writ of habeas corpus is a writ of right, and shall never be suspended.” Art. 1, § 12, Texas Constitution. “[The Great Writ] is the most celebrated writ in English Law.” Blackstone, The Commentaries on the Laws of England (1762 and 1769 editions). The Great Writ was proclaimed by the Colonists as among the immemorial rights descended to them from their ancestors. Ex parte Yerger, 8 Wall. 85 , 75 U.S. 85, 95-98 , 19 L.Ed. 332, 336 (1869). In 1963, the Great Writ was proclaimed by a moderate Supreme Court as “one of the precious heritages of Anglo-American civilization.” Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963). “What is remarkable about the [Great] [W]rit is its constancy.” Liebman, Federal Habeas Corpus Practice and Procedure (The Michie Company, 1988 edition), Vol. 1, § 2.2, at page 6. “[The Great Writ] for centuries has served the same essential function, at essentially the same intergovernmental and intercourt junctions in the Anglo-American system of criminal justice, of judicially ferrying persons whom the government, through restraints, has separated from their rights under the fundamental Law of the Land to the safe harbor afforded by that Law. It simply is not accurate, then, to say that the same ferry boat, traversing the same constitutional crossing, somehow used not to be a ferry boat — because the amount of its cargo and frequency of its trips have increased over time.” Liebman, Id., at page 12. This is an Art. 11.07, V.A.C.C.P., postcon-viction writ of habeas corpus proceeding, in which Delma Banks, Jr., henceforth applicant, through counsel, Hon. Clifton “Scrappy” Holmes, gives five reasons why his conviction for capital murder and sentence of death should be set aside by this Court. On original submission, in denying applicant any relief, this Court addressed only two of the five contentions that were presented on behalf of applicant. However, when this Court ordered this cause filed and set for submission, this Court stated the following: “We order such post-conviction application filed and set for submission before the Court En Banc without oral argument.” Thus, all of the issues applicant presents in his application, and as argued in his brief, and not just two of those issues, were subject to review by this *549 Court. For reasons not explicated in the original opinion, this Court chose not to review all of the issues that were presented on behalf of applicant. On original submission, a majority of this Court held that because applicant did not object at trial to the trial judge’s excusing venirepersons Dillon and Ervin, he, the applicant, was precluded from complaining about their excusal by way of the Great Writ, as applied to postconviction proceedings. Now on rehearing this Court again expressly fails to review all of applicant’s contentions, in particular his claim that the trial judge erred in excusing venireperson L.C. Me Afee, Sr., pursuant to the State’s challenge for cause, and over applicant’s trial counsel’s objection; his claim that because his court appointed attorney on appeal did not raise the Me Afee issue on direct appeal he did not receive the effective assistance of counsel on direct appeal; and, lastly, his claim that the evidence was insufficient to support the jury’s affirmative finding to special issue number two, see Art. 37.071, V.A.C.C.P. I have no quarrel with the disposition that the majority opinion makes as to venirepersons Dillon and Ervin. However, to fully appreciate applicant’s contention that the trial judge erred in excusing venireperson Me Afee over objection and pursuant to the State’s challenge for cause, it is necessary to review that claim in tandem with his claim that he did not receive the effective assistance of counsel on direct appeal because the Me Afee issue was not presented on direct appeal. Thus, if appellate counsel was ineffective because he did not present the Me Afee issue on direct appeal, applicant has sufficiently explained why the issue was not presented on direct appeal. The majority opinion on rehearing refuses to review the Me Afee issue for two reasons. One reason is that applicant did not raise the issue on direct appeal; thus he cannot now assert this claim by way of postconviction habeas corpus. The problem with this reason is that applicant’s claim about the excusal of Me Afee is tied in with his claim that he was denied the effective assistance of counsel on direct appeal for the very reason the majority opinion gives to “pour” him out. Another reason the majority opinion gives to “pour” applicant out is that an alleged violation of a statute, such as Art. 35.16, V.A.C.C.P., is not within the scope of the Great Writ, as applied to postconviction habeas corpus proceedings. The majority opinion also, but expressly, tells us that henceforth it is only where an applicant asserts in an application for post-conviction relief a denial of fundamental or constitutional rights, or asserts therein that his conviction is void because of a lack of jurisdiction by the trial court, that he may then invoke the powers of the Great Writ, as applied to postconviction proceedings. Contrary to the majority opinion, I find that the issue that applicant presents that concerns venireperson Me Afee should be reviewed by this Court, but must be done in conjunction with his claim that he did not receive the effective assistance of counsel on direct appeal. Of course, the majority opinion should also review applicant’s contention that the evidence is insufficient to sustain the jury’s affirmative finding to special issue number two. See Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Therefore, I file this dissenting opinion. However, I limit my remarks to the refusal of this Court to consider applicant’s complaint about the trial judge excusing Me Afee in conjunction with his claim that he was denied the effective assistance of counsel on direct appeal. What really troubles and disturbs me about the majority opinion is some of the loose language that is found therein that is used to reject applicant’s contention regarding the Me Afee issue. However, what the majority opinion holds, regarding what now may be raised via postconviction habeas corpus, pursuant to Article 11.07, supra, comports with “the movement” that presently exists in some quarters of this Nation-to restrict or limit the scope of post-conviction habeas proceedings. History teaches us that on June 15, 1215, King John of England met at Runnymeade *550 with his Archbishops, Bishops, Abbots, Earls, Barons, Justiciaries, Foresters, Sheriffs, Governors, Officers, Bailiffs, and other trusted and faithful servants, and entered into the Magna Charta. Although the origin of the Great Writ has not yet been firmly established, most historians believe that it comes to us through the principles set out in the Magna Charta. In recent times, the scope of the writ was expanded to cover virtually any situation in which the habeas corpus court believed that the defendant had been wrongfully convicted. See 2 Criminal Defense Techniques (1986 edition), § 44.02[2]. Thus, the Great Writ became adaptable to time changes, and also became capable of wider application than the mischief which gave its birth. E.g., Weems v. United States, 217 U.S. 349 , 30 S.Ct. 544 , 54 L.Ed. 793 (1909). In sum, the Great Writ has undergone a metamorphosis and has become the subject of judicial innovativeness and creativeness, Glover v. North Carolina, 301 F.Supp. 364, 366 (E.D.N.C.1969). Even the Supreme Court of the United States once declared that, for purposes of federal habe-as corpus law, any “restraint contrary to fundamental law, by whatever authority imposed, could be redressed by the writ of habeas corpus.” Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963). Also see Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963). In Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967), even this Court went so far as to hold that any judgment of conviction obtained in violation of due process of law, and implicitly due course of law under the Texas Constitution, was subject to being set aside under Art. 11.07, supra. Today, however, there is a great movement in this Nation to restrict or limit the scope of the Great Writ, as applied to post-conviction habeas corpus proceedings and as most of us have come to know it. The movement to return us to a foreign time when the Great Writ, as applied to postcon-viction proceedings, had little meaning, see, for example, Ex parte Banspach, 130 Tex.Cr.R. 3 , 91 S.W.2d 365 (1936), and Ex parte Minor, 146 Tex.Cr.R. 159 , 172 S.W.2d 347 (1943), actually comes to us through decisions by “the Burger Court” and “the Rehnquist Court”, which appear to have had as their goal, for purposes of federal criminal law, a strong desire to return us to at least the eighteenth century, if not beyond. However, in addition to the now “Rehnquist Court”, others who advocate cutting back on the scope of the Great Writ, as applied to postconviction proceedings, are members of the law and order community; members of the law enforcement community; and those individuals in our society who advocate the crime control model of criminal justice. I find that all of these groups, as far as the Great Writ goes, when applied to postconviction habe-as corpus proceedings, have one goal or objective in mind: to curtail as much as possible the scope of the Great Writ, as applied to postconviction habeas corpus proceedings, and perhaps even to eventually eliminate the Great Writ from our criminal law. This kind of thinking is not new, however. During the Civil War, efforts were made to suspend the Great Writ. See Ex parte Milligan, 71 U.S. 2 , 4 Wall. 2 , 18 L.Ed. 281 (1866). Interestingly, there is no provision in the Federal Bill of Rights that pertains to the Great Writ. The movement to dispense with postcon-viction remedies probably originated in the early 1970’s, soon after Hon. Warren Burger became Chief Justice of the Supreme Court of the United States. Since Burger was Chief Justice, the movement has undoubtedly been influenced by the “Rehnquist Court’s hostility to the rights of criminal defendants generally and to postcon-viction remedies and relief specifically.” Wilkes, Federal and State Postconviction Remedies and Relief (The Harrison Company, 1987 edition), at page 266. Today, there is even a “Rehnquist Committee to Abolish Access by State Prisoners to Federal Court Review of Their Convictions”, which committee is headed by former Justice Lewis Powell, who is a natural for that position because he has often been referred to as “the out-spoken antagonist of Federal Habeas,” which came about because of the opinions that he wrote when he was on the Supreme Court advocating the restriction *551 of the use of the Great Writ in postconviction proceedings in federal courts involving previously convicted state prisoners. I must pause and ask: If Rehnquist’s committee succeeds in closing the federal courthouse doors to most claims that Texas inmates want to urge in an attempt to establish that they were unlawfully convicted, and if this Court further closes its doors to inmates of this State who want to make like claims, where are these individuals supposed to go in order to seek relief on a claim that they were unlawfully convicted? In the dissenting opinion that I filed in Ex parte Empey, 757 S.W.2d 771 (Tex.Cr.App.1988), I wailed like a stuck pig: “What is going on in this old house that causes this Court to turn the law of ‘nunc pro tunc’ topsy-turvy, and the law of postcon-viction writ of habeas corpus upside down_?” (775). I now confess: In making the statement, I had not considered that the trickle from the “cut back” movement, which originated in Washington, D.C., had actually become a raging river out of control, that spilled over its banks. Of course, if I had any doubts about the matter before today, today’s majority opinion convinces me that the “cut back” movement in the postconviction writ of habeas corpus area of our State law is now well entrenched in Texas, especially at the Court of Criminal Appeals, the highest criminal court of this State. Also see Ex parte Brown, 757 S.W.2d 367 (Tex.Cr.App.1988), and Ex parte Christian, 760 S.W.2d 659 (Tex.Cr.App.1988). I find that the majority opinion in this cause performs such serious surgery on the Great Writ, as it applies to postconviction habeas corpus proceedings, in no less than a death penalty case, that it would be appropriate for those members of this Court who vote for the majority opinion to just go ahead and administer to it the last rites and then cremate it. However, because I am confident that the Great Writ, as it applies to postconviction proceedings, like the phoenix, will someday arise from the ashes to live another 500 years, I strongly urge our law school librarians not to remove from their respective library shelves such books as the following: Thomson, An Historical Essy on the Magna Charta of King John (1829 edition); Bridge, A Treatise of the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto (1891 edition); Pollock and Maitland, The History of the English Law (1899 edition); Dowling, Cases on Constitutional Law (1959 edition); Schwartz, The Roots of Freedom: A Constitutional History of England (1965 edition); Sokol, Federal Ha-beas Corpus (1969 edition); Sharpe, The Law of Habeas Corpus (1976 edition); Duker, A Constitutional History of Habe-as Corpus (1980 edition); Mian, American Habeas Corpus: Law, History, and Politics (1984 edition); Wilkes, supra; and Liebman, supra. By keeping these and other books that relate to the Great Writ on the shelves of our law school libraries, I believe that law students, at least until Orwellian times arrive, will get a kick out of reading about the Great Writ, as well as to see how much precious and valuable time some courts and some judges, both trial and appellate, who, back in the old days, spent in protecting the rights of individuals, who might otherwise have permanently sustained or suffered an unlawful conviction, and, in some instances, even wrongfully suffered a premature death. However, until Orwellian times arrive, we should not forget what a moderate Supreme Court of the United States previously pointed out in construing the federal habeas corpus statutes, see 28 U.S.C. §§ 2254 and 2255: “While the ‘rhetoric celebrating habeas corpus has changed little over the centuries (footnote deleted), it is nevertheless true that the functions of the writ have undergone drastic change ...’ [Hjabeas corpus is not ‘a static, narrow, formalistic remedy,’ Jones v. Cunningham, 371 U.S. 236 , 83 S.Ct. 373 , 9 L.Ed.2d 285 (1963), but one which must retain the ‘ability to cut through barriers of form and procedural mazes.’ (Citations omitted.) ‘The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure the miscarriages of justice within its reach are sur *552 faced and corrected.’ (Citations deleted.) Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements....” Hensley v. Municipal Court, 411 U.S. 345 , 93 S.Ct. 1571 , 36 L.Ed.2d 294 (1973). Also see Pavesick v. New England, et al., 122 Ga. 190 , 50 S.E. 68 , 70 (1905). In the dissenting opinion that I filed in Ex parte Renier, 734 S.W.2d 349 (Tex.Cr.App.1987), I attempted to set out the history of the Great Writ in Texas, as applied to postconviction proceedings, and thus will not repeat here what I stated therein because I find that it is sufficient to state only the following for purposes of this dissenting opinion: “Our habeas corpus law has maintained [its] basic structure for at least 130 years”, Ex parte Renier, at page 358; that the provisions of Art. 11.07, V.A.C.C.P., provide “statutory authority for the resolution of contested factual issues material on the question of whether the petitioner is illegally restrained under a judgment of conviction in a felony case ... ”, Ex parte Young, supra, at 828-829 ; and that it is always available to obtain release of anyone who is unlawfully restrained of his liberty. I ask: What could be more wrongful in denying someone relief where he has a valid claim that his conviction is void because he was tried, convicted, and given the death sentence by a unlawfully impaneled jury, and that issue was not raised on direct appeal? At the moment, I cannot think of anything that should prevent the Great Writ from being applied to such a situation. E.g., Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976); Gray v. Mississippi, 481 U.S. 648 , 107 S.Ct. 2045 , 95 L.Ed.2d 622 (1987). Applicant’s contentions do not implicate an ordinary run of the mill felony case. Applicant is presently under sentence of death. Liebman, see supra, points out in his book that “The Supreme Court frequently has recognized that imposition of the death penalty is such a uniquely final and draconian step from the viewpoint both of society and of the condemned individual that it must be attended with a special set of procedural protections designed to assure both that the courts have reliably identified those defendants who are guilty of a capital crime and for whom execution is an appropriate sanction [footnote deleted], and that ‘the death sentence [is] '..., and appear[s] to be, based on reason rather than caprice or emotion.” (Footnote deleted.) Because habeas corpus review is designed to assure that the state courts have provided due process and that the guilt and sentencing decisions of those courts are reliable [footnote deleted], it follows that the habeas corpus remedy is especially critical in capital cases because of the high constitutional standard of due process and the particular need for reliability in such cases. [Footnote deleted.].” § 2.2, at page 22. I agree with what Liebman states. In this instance, applicant asserts that the trial judge’s excusal of venireperson Me Afee violated his “due process and equal protection of law” rights under the Federal and State Constitutions, and that his court appointed attorney on appeal was ineffective because he did not raise the Me Afee issue on direct appeal. The majority opinion treats applicant’s contention as asserting error as a matter of state law, see Art. 35.16, V.A.C.C.P., and concludes that “The improper exclusion of a prospective juror on statutory grounds ... does not involve jurisdictional defects ... As such, we will not consider such a claim for the first time in an application for writ of habe-as corpus.” The majority opinion also holds that because the issue was not presented on direct appeal, “The Great Writ should not be used to litigate matters which should have been raised on appeal.” (Page 540 of opinion.) The Me Afee issue was not raised on direct appeal because court appointed counsel chose not to raise the issue for reasons he gives us in his affidavit that is on file in this cause. By what the majority opinion holds, are we to not even concern ourselves with what occurred in the trial court and why the Me Afee issue was not presented on direct appeal? I believe that we should consider the trial *553 record as well as the reason counsel 'on appeal gave as to why he did not raise the Me Afee issue on direct appeal. The trial record of this cause reflects that during his voir dire examination Me Afee stated that he knew both applicant and his victim, and that because of this it would be “extremely difficult” for him to sit as a juror. Me Afee nevertheless stated: “I would do my best [as a juror] if I were chosen [to serve] ...” Over objection, and pursuant to the State’s challenge for cause, the trial judge excused Me Afee, because, in the words of the trial judge, if Me Afee were seated as a juror, “he would know more about the defendant and the victim than the other jurors would know about them.” By this Court’s En Banc decision of Williams v. State, 682 S.W.2d 538 (Tex.Cr.App.1984), and this Court’s panel opinion of Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982), upon which Williams, supra, relied as authority, veni-reperson Me Afee was not shown as a matter of law to have been disqualified from serving as a juror in this cause. Our state law is clear: Before such a person is disqualified from serving as a juror in Texas, much, much more must be established on the record. The trial judge clearly erred in sustaining the State’s challenge for cause, and court appointed counsel also erred in not raising this issue on direct appeal. Why did court appointed counsel on appeal not raise the Me Afee issue on direct appeal? The record reflects that Hon. Lynn Cook-sey, the retained attorney who represented applicant at his trial, timely and properly objected to the trial judge’s excusing Me Afee because, in the words of the trial judge, “if Me Afee had been selected to be on the jury, he would know more about the defendant and the victim than the other jurors would know about them.” Cook-sey’s objection to the trial judge’s sustaining the State’s challenge for cause, and excusing Me Afee, was the following: “Mr. Me Afee was not disqualified under the law of the State of Texas or under the laws of the United States.” And, under this Court’s decisions, he wasn’t disqualified for the reason the trial judge gave. See Williams, supra, and Anderson, supra. Hon. Clyde Lee, the court appointed attorney who represented applicant on direct appeal, informs us in an affidavit that is in the record why he did not raise the issue on direct appeal: “All issues that were not raised on appeal were not raised because either Mr. Cooksey had waived them by not making objections to them at trial or by not making the proper objections to said issues during trial.” Given the state of the record, I find that Lee was clearly mistaken that Cooksey had not timely and properly objected to the trial judge sustaining the State’s challenge' for cause and excusing Me Afee. Clearly, the Me Afee issue should have been presented on direct appeal. I ask: Does today’s majority opinion not actually return us to that day when the rule was that a habeas corpus court “would not review irregularities or erroneous rulings upon the trial, however serious, and that the writ of habeas corpus will lie only in case the judgment under which the prisoner is detained is shown to be absolutely void for want of jurisdiction in the court that pronounced it, either because such jurisdiction was absent at the beginning, or because it was lost in the course of the proceedings.” Frank v. Mangum, 237 U.S. 309 , 35 S.Ct. 582 , 59 L.Ed. 969 (1915). This rule applied, no matter how egregious the conduct of the trial might have been, and no matter what punishment was assessed. In Frank, supra, the defendant was tried, convicted, and sentenced to a premature death in a mob dominated atmosphere. Although the courts gave Frank no relief, the Governor of Georgia ordered his sentence of death commuted to life imprisonment. Frank, however, did not get to serve the life sentence because a mob of Atlanta citizens, incensed at the Governor’s actions, stormed the bastille, seized Frank, and hanged him by the neck. It now appears that Frank was innocent of the crime for which he was convicted and sentenced to die. See Rawls, “After 69 Years of Silence, Lynching Victim is *554 Cleared,” March 8, 1982, The New York Times, at A12, col. 1. Until the movement to curtail the Great Writ, as applied to postconviction habeas corpus proceedings, see ante, got underway, the scope of the Great Writ, as applied to postconviction habeas corpus proceedings, was expanded to permit virtually any kind of collateral attack on a conviction, as long as the individual had been finally convicted, was restrained of his liberty, and his claim asserted a violation of the federal constitution. Rarely was the claim made that the conviction was void because of a violation of the particular state constitution. However, today, more and more state courts are looking to their own state constitutions, rather than to the federal constitution, in making determinations whether rights of their citizens have been violated. See Duncan, “Terminating the Guardianship: A New Role for State Courts,” 19 St. Mary’s Law Journal, Number 4, 1988. Also see Ponton, “Sources of Liberty in the Texas Bill of Rights,” 20 St. Mary’s Law Journal, Number 1, 1988, and Harrington, The Texas Bill of Rights: A Commentary and Litigation Manual (Butterworth Legal Publishers, 1987). Of course, the right to trial by jury is protected by both the federal and state constitutions. Thus, the Me Afee issue and the ineffective assistance of counsel on appeal issue should be reviewed in light of the Texas Constitution, if not the federal constitution. The majority opinion errs in not reviewing those two issues in tandem. I dissent to such action. I conclude my dissenting opinion with these remarks: I can only hope that the majority opinion today is “merely temporarily bending with the wind.” See Murphy, The Constitution in Crisis Times (1972 edition), at page xiii, quoting Commager and Morris, two famous American historians. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9660581. Public record. Not legal advice.