# Ex Parte Reed > Court of Criminal Appeals of Texas · December 17, 2008 · 271 S.W.3d 698 URL: https://www.frixlaw.com/law-library/cases/9679451 ## Case - **Full name:** Ex Parte Rodney REED, Applicant - **Court:** Court of Criminal Appeals of Texas - **Decided:** December 17, 2008 - **Citations:** 271 S.W.3d 698; 2008 Tex. Crim. App. LEXIS 1569; 2008 WL 5234225 - **Precedential status:** Published - **Opinion:** Concurrence by Price - **Judges:** Keasler, Meyers, Price, Johnson, Hervey, Holcomb, Cochran, Keller, Womack - **Cited by:** 276 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/9679451 ## How later opinions describe it (automated extraction) - concluding that the few instances in which the findings were inconsistent or misleading did not justify a decision to totally disregard the findings that were supported by the record and were germane to the resolution of defendant's claims - explaining that, for over forty years of Texas writ jurisprudence for habeas corpus proceedings, this Court has been the ultimate factfinder, and the trial judge has been the “original factfinder” - noting that, in the context of a Brady claim, “the trial judge is in the best position to assess the credibility of witnesses” and stating that a reviewing court “will defer to and accept a trial judge’s findings of fact . . .when they are supported by the record” (citing Ex p… - stating that defendant’s alternate explanation, offered for the first time at trial and inconsistent with his previous statement to police, looked manufactured and implausible - holding that the trial judge on habeas is the “original fact-finder” because the trial judge is in the best position to assess the credibility of witnesses ## Opinion text PRICE, J., filed a concurring opinion. I join the Court’s opinion. I write separately only to briefly address Presiding Judge Keller’s objection to the Court’s discussion of the respective fact-finding roles of this Court and the convicting court. The Presiding Judge’s view, if accepted, would relegate this Court to the status of an appellate court. But in the post-conviction context, the Texas Constitution and the Legislature have vested us with original jurisdiction. 1 I must therefore reject the Presiding Judge’s view that we owe unqualified deference to the convicting court’s findings.of fact under any and every set of circumstances in which those findings are supported by the record. While I believe that as a matter of “efficiency, effectiveness, and comity” it is usually the better practice to defer to the findings of the convicting court, for all the reasons typically articulated for affording deference to the court in which live evidence was originally adduced, it is also important to continue to acknowledge, as the Court does today, that, in the post-conviction habeas context, that deference is never absolute. 2 Articles 11.07 and 11.071 of the Texas Code of Criminal Procedure make post-conviction applications for writ of habeas corpus in felony (including capital) eases, though filed in the convicting court, returnable to this Court. Because this Court lacks the capacity to develop live testimony, it is a matter of convenience only that such writs are filed in the convicting court in the first instance; original jurisdiction to resolve the matter lies with this Court. 3 The convicting court’s statu *755 torily contemplated findings of fact are no more than well-informed recommendations. And though there is rarely any good reason not to follow them when they are supported by the evidence adduced in the convicting court, there is no absolute requirement that we follow them, even if supported by the evidence, when the evidence also supports a different finding that we have reason to deem more justified by credible or reliable evidence, even on a cold record. I am not suggesting that it would be a good idea to reject record-supported recommendations from the trial court on a regular basis (or even very often). And we plainly do not. But it is a mistake to believe that we are prohibited from doing so even in the rare case. To deny our authority as a court of original jurisdiction is to relegate our status to that of a reviewing court. That would be an abdication of our constitutionally and statutorily assigned authority and responsibility that I could not possibly condone. .See Tex. Const, art. V, § 5(e) (“Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus!.]”); Tex Code Crim. Proc. art. 11.07, § 3(a) (“After final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas.”); Tex.Code Crim. Proc. art. 11.071, § 6(a) ("If a timely application for a. writ of habeas corpus is filed in the convicting court, a writ of habeas corpus, returnable to the court of criminal appeals, shall issue by operation of law.”); Ex parte Renier, 734 S.W.2d 349, 359 (Tex.Crim.App.1987) (Teague, J., dissenting) (since 1943, statutory scheme vests authority exclusively in Court of Criminal Appeals to grant relief in post-conviction habeas corpus in felony cases); Ex parte Davis, 947 S.W.2d 216, 223 (McCormick, J., concurring) (Article 11.071 provides exclusive means by which this Court may exercise its original habeas corpus jurisdiction in capital cases); Ex parte Smith, 977 S.W.2d 610 , 611 n. 4 (Tex.Crim.App.1998) (McCormick’s separate opinion in Davis may be regarded as an opinion of the Court); Ex parte Thompson, 273 S.W.3d 177 (Tex.Crim.App., No. AP-75,720, 2008 WL 696476 , delivered March 5, 2008) (slip op. at *2, n. 8) (same); Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex.Crim.App.2008) (“short of suspending the writ, the Legislature may regulate how a court exercises its original habeas jurisdiction by enacting particular procedural mechanisms that govern the submission and presentation of an application for writ of habeas corpus.”). . See, e.g., Ex parte Simpson, 136 S.W.3d 660, 669 (Tex.Crim.App.2004) ("It is generally fruitless, if not counterproductive, to file original evidentiary materials relating to a habeas claim with this Court rather than the trial court. Although we might have the implicit authority to consider evidentiary materials filed directly with this Court, normal jurisprudential considerations of efficiency, effectiveness, and comity to the habeas court counsel against such consideration. Because applicant has failed to offer proof of any compelling or extraordinary circumstances, we decline to consider the evidentiaiy materials that he has filed directly with this Court.") (Emphasis supplied.) . See Ex parte Renier, supra, at 358-59 (Teague, J., dissenting) (ordinarily, court to which writ is returnable, rather than the issuing court, performs any fact-finding function; but *755 because Court of Criminal Appeals is "not equipped, let alone inclined, to hold eviden-tiary hearings or conduct immediate examinations of existing trial court records,” Legislature developed procedure whereby convicting court “was charged with assembling the evidence and transmitting it to the court of return,” viz:, this Court, which v\as given exclusive power to rule on the merits). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9679451. Public record. Not legal advice.