# Ex Parte Brandley

> Court of Criminal Appeals of Texas · December 13, 1989 · 781 S.W.2d 886

URL: https://www.frixlaw.com/law-library/cases/9765477

## Case

- **Full name:** Ex Parte Clarence Lee BRANDLEY, Applicant
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 13, 1989
- **Citations:** 781 S.W.2d 886; 1989 Tex. Crim. App. LEXIS 216; 1989 WL 149733
- **Precedential status:** Published
- **Opinion:** Concurrence by Duncan
- **Judges:** Berchelmann, Duncan, White, Miller, Campbell, McCormick, Davis
- **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/9765477

## How later opinions describe it (automated extraction)

- recognizing cognizability of due process claims in habeas corpus proceedings
- finding the cumulative effect of the investigative procedure deprived the defendant of due process of law

## Opinion text

DUNCAN, Judge,
concurring.
I join the majority opinion; however, I write separately only to comment briefly upon the dissenting opinions. In fiscal year 1987-1988 (September 1, 1987 to August 31, 1988), this Court denied or dismissed 2,259 post-conviction applications for writs of habeas corpus. See Texas Judicial System: 60th Annual Report (Office of Court Administration: Austin, 1988), p. 168. These sheer numbers, if nothing else, emphasize the commitment of this Court to respect the objective and, under certain circumstances, subjective findings made by the trial court in a post-conviction habeas corpus hearing. Ten months ago, in Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App.1989), this Court unanimously quoted with approval the language of Ex parte Moore, 126 S.W.2d 27 (Tex.Cr.App.1939). In Moore the Court stated:
Where the ruling of the trial judge depends upon the existence or non-existence of a certain fact and testimony pro and con is introduced thereon and the evidence is conflicting it becomes the duty of the trial judge to determine the issue, and unless it appears to this court that his finding was without support in the evidence, and that he had committed an error in his judgment thereon, we would not interfere with his findings thereon. Id., 126 S.W.2d at 28 .
The cases are absolutely legion, and I do not use that word loosely, to support the foregoing proposition. That is as it should be. This Court should not get into the position of having to make credibility judgments every time there is conflicting testimony. This ease is really very simple: this Court initially found that there was a legitimate constitutional issue raised regarding a claimed deprivation of due process and ordered a hearing to be conducted; the hearing was held; Judge Pickett made findings of fact and conclusions of law recommending relief be granted; the findings of fact are supported by the record and the conclusions of law are not erroneous. Therefore, they should be accepted.
We must take the record as we find it. Accordingly, we cannot add facts, assume facts, disregard facts, or accord certain facts greater or lesser significance. That is simply not our function. There is no question that the abundance of material presented with this case makes our task extremely difficult. That is why the trial judge is accorded the deference to make findings of fact. All that we should do is determine whether they are supported by the record. That is all. I have read every page of the writ hearing and although I may not have made the same findings of fact or conclusions of law as Judge Pickett, I do find that they are supported by the record. Consequently, unless we are willing to overrule all of- the cases to the contrary or conjure up a way to deceptively distinguish them we actually have no choice but to accept the findings and conclusions that have support in the record.
Judge Campbell, in his dissenting opinion, also takes issue with the specific ground upon which relief is granted and claims that it is actually newly discovered evidence “wrap[ped] ... in the more attractive cloak of due process ...” Dissenting Opinion, slip op. p. 898. To continue the metaphor: whether the issue is clothed or wrapped in due process is irrelevant. I agree that this Court should not be the repository of every complaint that can be made relative to a claim of newly discovered evidence. But, in the context of this case, when fundamental liberties have been deprived then the newly discovered evidence is the equivalent of a due process violation. And, Judge Campbell’s conclusion implicitly concedes that a due process right was implicated. He dismisses it on the basis that he would not have made the same findings as Judge Pickett. As I stat *896 ed previously, I might not have either, but that is not the issue. Judge Pickett’s findings are supported by the record. Thus, they should be accepted.
The majority opinion recognizes this. That is why I have joined the opinion.
MILLER, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9765477. Public record. Not legal advice.