Overstreet, Nolan Ryan

In the Court of Criminal

Appeals of Texas

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No. WR-91,029-02

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EX PARTE NOLAN RYAN OVERSTREET,

Applicant

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On Application for Writ of Habeas Corpus

In Cause No. C-396-W012330-0714331-B

In the 396th District Court

Tarrant County

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YEARY, J., filed a dissenting opinion in which KELLER, P.J.,

joined.

In 2000, Applicant pled guilty to the offense of failing to register

as a sex offender, which was a state-jail felony at the time of the

commission of the alleged offense in 1998. Acts 1997, 75th Leg., ch. 668,

§§ 1, 10, pp. 2260, 2264, eff. Sept. 1, 1997. The convicting court judge

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reduced Applicant’s punishment to that for a Class A misdemeanor,

under Section 12.44(a) of the Texas Penal Code, and sentenced him to

90 days in the county jail. TEX. PENAL CODE § 12.44(a). 1

In 2023, Applicant filed this subsequent post-conviction

application for writ of habeas corpus under Article 11.07, Section 4. TEX.

CODE CRIM. PROC. art. 11.07 § 4. The convicting court has now

recommended that this Court conclude that Applicant has satisfied the

gateway for proceeding in a subsequent writ application, as provided for

in Section 4(a)(1) of Article 11.07. 2 Specifically, the convicting court

1 Although Applicant was punished as if he had committed a Class A

misdemeanor, he was convicted of a state-jail felony. Therefore, Article 11.07

is the appropriate vehicle by which to seek post-conviction relief. See TEX.

CODE CRIM. PROC. art. 11.07 § 1 (“This article establishes the procedures for

writ of habeas corpus in which the applicant seeks relief from a felony

judgment imposing a penalty other than death.”); Ex parte Palmberg, 491

S.W.3d 804, 805 n.1 (Tex. Crim. App. 2016) (“[A] state jail felony conviction

that is punished as if it were a Class A misdemeanor is still subject to collateral

attack in an Article 11.07 post-conviction application for writ of habeas

corpus.”). Moreover, although Applicant long ago completed his 90-day

sentence, he has established collateral consequences “sufficient to establish

‘confinement’ so as to trigger application of art. 11.07.” Ex parte Herrington,

310 S.W.3d 452, 457 (Tex. Crim. App. 2010).

2 Section 4(a)(1) reads:

Sec. 4 (a) If a subsequent application for writ of habeas

corpus us filed after final disposition of an initial application

challenging the same conviction, a court may not consider the

merits of or grant relief based on the subsequent application

unless the application contains sufficient specific facts

establishing that:

(1) the current claims and issues have not been and could

not have been presented previously in an original application or

in a previously considered application filed under this article

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recommends that we conclude that Applicant has established a new

legal basis for his claim—i.e., one that was unavailable to him when he

filed his initial writ application.

The Court now grants habeas relief. But the Court’s opinion fails

to articulate the basis, in light of the requirements contained in Code of

Criminal Procedure article 11.07, Section 4, for permitting Applicant to

proceed to a merits determination on his claim of actual innocence. 3 It

simply asserts that Applicant “states the he has previously unavailable

evidence of his actual innocence[,]” without identifying whether this

justifies granting him relief in a subsequent writ application based upon

Section 4(a)(1)’s reference to previously unavailable facts or previously

unavailable law. See TEX. CODE CRIM. PROC. art. 11.07 § 4(a)(1) (allowing

judicial review of claims in a subsequent writ application if “the factual

or legal basis for the claim was unavailable on the date” the previous

application was filed).

because the factual or legal basis for the claim was unavailable

on the date the applicant filed the previous application[.]

TEX. CODE CRIM. PROC. art. 11.07 § 4(a)(1).

3 Nothing about the fact that Applicant is claiming so-called “actual

innocence,” per se, exempts him from having to satisfy the provisions of Section

4 of Article 11.07, governing the reviewability of claims in a subsequent post-

conviction writ application. See Ex parte Sledge, 391 S.W.3d 104, 109 (Tex.

Crim. App. 2013) (“[T]here is nothing irrational about the legislative exercise

of its prerogative to draw a definite statutory line beyond which the State’s

substantial interest in the finality of its judgments overcomes all other policy

interests, including the interest of habeas corpus applicants indefinitely to

preserve a forum in which to challenge—even on jurisdictional grounds—the

validity of their convictions.”). The Legislature may likewise legitimately

prohibit a subsequent habeas corpus applicant from litigating a claim of actual

innocence if he could have raised that claim in a previous application.

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In my view, Applicant has established neither a new factual basis

nor a new legal basis for his actual innocence claim. The Court therefore

errs in reaching the merits of his claim, much less in granting him relief.

I respectfully dissent.

I. BACKGROUND

The basis for Applicant’s failure-to-register conviction was an

offense he was convicted of committing in 1997, in the state of Colorado,

before moving to Texas. Applicant filed his initial writ application in

2020. In that application, Applicant alleged actual innocence grounded

upon his claim that the Colorado offense does not amount to a

“reportable offense” for purposes of a prosecution for failing to register

as a sex offender. He made this claim notwithstanding that, at least as

of 2006, the Texas Department of Public Safety (“DPS”) had declared the

Colorado statute under which he was convicted to be “substantially

similar” to a Texas offense for purposes of Applicant’s duty to register.

See Acts 2001, 77th Leg., ch. 211, §§ 2, 19, pp. 400, 405, eff. Sept. 1, 2001

(enacting then-Article 62.0101, Texas Code of Criminal Procedure,

making DPS responsible for determining the substantial similarity of

out-of-state offenses for sex-offender registration purposes, and making

it retroactive); Acts 2005, 79th. Leg., ch. 1008, §§ 1.01, 4.01(a), pp. 3388,

3422, eff. Sept. 1, 2005 (amending former Article 62.0101 and

recodifying it as Article 62.003; also making the amendment

retroactive). On June 17, 2020, this Court denied Applicant relief on the

merits of that initial actual innocence habeas claim. 4

4 Applicant also claimed in his initial writ application that his guilty

plea had been involuntary. We denied relief on both claims. Thus, we “finally

disposed” of Applicant’s entire initial writ application, triggering Article 11.07,

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The very next day, on June 18, 2020, Applicant appealed DPS’s

determination with respect to substantial similarity to a Travis County

district court, in accordance with Article 62.003(c) of the Code of

Criminal Procedure. See TEX. CODE CRIM. PROC. art. 62.003(c) (“An

appeal of a determination made under this article [regarding

substantial similarity, by DPS] shall be brought in a district court in

Travis County.”). On October 30, 2020, the district court in Travis

County granted Applicant’s motion for summary judgment, reversing

DPS’s determination regarding substantial similarity. DPS then

appealed that determination to the Third Court of Appeals, which

docketed the appeal as a civil matter, assigning it a civil cause number. 5

Section 4’s limitations on subsequent writ applications. See Ex parte Torres,

943 S.W.2d 469, 474 (Tex. Crim. App. 1997) (“[A] ‘final disposition’ of an initial

writ [for purposes of triggering Section 4’s limitations on subsequent writs]

must entail a disposition of all the claims raised.”).

5 Article 62.003 says nothing about the losing party from an appeal to

the Travis County district court pursuing a further appeal in the court of

appeals. Neither the parties, in their briefs to the court of appeals, nor the

court of appeals in its opinion, identified a statute that confers appellate

jurisdiction on the Third Court of Appeals. Tex. Dept. of Pub. Safety v.

Anonymous Adult Montana Resident, No. 03-20-00565-CV, 2022 WL 1652137

(Tex. App.—Austin May 25, 2022) (mem. op., not designated for publication).

This Court has said that, under Article V, Section 6, of the Texas Constitution,

“a statute must expressly give the courts of appeals jurisdiction.” Whitfield v.

State, 430 S.W.3d 405, 407−08 (Tex. Crim. App. 2014); TEX. CONST. art. V, § 6

(“Said Court of Appeals shall have appellate jurisdiction . . . which shall extend

to all cases of which the District Court or County Courts have original or

appellate jurisdiction, under such restrictions and regulations as may be

prescribed by law.”) (emphasis added). It is unclear to me by what legislative

authority the court of appeals entertained DPS’s appeal. I have no occasion in

evaluating the present post-conviction writ application, however, to address

the court of appeals’ jurisdiction in that (albeit related) civil matter. In any

event, my conclusion would remain the same even if any available statutory

authority to appeal from the DPS determination must end in the district court.

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On May 25, 2022, the court of appeals affirmed the district court’s

grant of summary judgment on Applicant’s behalf. Tex. Dept. of Pub.

Safety v. Anonymous Adult Montana Resident, No. 03-20-00565-CV,

2022 WL 1652137 (Tex. App.—Austin May 25, 2022) (mem. op., not

designated for publication). More than a year later, on August 14, 2023,

Applicant filed the present, subsequent writ application. Applicant now

argues that, in view of the appellate reversal of DPS’s determination

that his Colorado conviction is for an offense that is “substantially

similar” to a Texas offense, he had no duty to register as a sex offender

and, therefore, cannot be found to have committed the offense of failing

to do so.

In his sole ground for relief, Applicant claims: “Newly available

evidence shows that [he] is actually innocent.” Under “Facts Supporting”

this ground, his writ application merely cites the decisions of the district

court and court of appeals reversing DPS’s determination of substantial

similarity. He does not designate whether he deems himself entitled to

proceed in this subsequent writ application because of new facts or new

law. But in his memorandum in support of the writ application,

Applicant argues only that “[t]his application falls under the

‘previously unavailable legal basis’ exception to the bar against

subsequent applications.” Memorandum in Support of Application

for a Writ of Habeas Corpus at 4−6.

In its recommended findings of fact and conclusions of law, the

convicting court agrees, concluding that “[t]he reversal of DPS’s

substantial similarity determination by the [district court], which was

affirmed by the Third Court of Appeals, is a legal basis for Applicant’s

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actual-innocence claim that was unavailable when he filed his initial

habeas application.” Findings and Order ## 34−41. The convicting court

also specifically recommends that we reject the State’s counter-

argument that the appellate determination that DPS was wrong is

really a factual basis for relief that Applicant could have pursued prior

to filing his initial writ application. Id. ## 33−34.

In the State’s view, however, Applicant failed to exercise due

diligence by filing his initial writ application before first prosecuting his

appeal of DPS’s determination of substantial similarity. See TEX. CODE

CRIM. PROC. art. 11.07 § 4(c) (“[A] factual basis of a claim is unavailable

on or before [the date that an initial writ is filed] if the factual basis was

not ascertainable through the exercise of reasonable diligence on or

before that date.”). For reasons I will next endeavor to articulate, I agree

with the State.

II. ARTICLE 62.003, CODE OF CRIMINAL PROCEDURE

Present Article 62.003 of the Code of Criminal Procedure places

the primary responsibility on DPS for determining “whether an offense

under the laws of another state . . . contains elements that are

substantially similar to the elements of an offense under the laws of this

state.” TEX. CODE CRIM. PROC. art. 62.003(a). It also expressly provides

that “[a]n appeal of a determination made under this article shall be

brought in a district court in Travis County.” Id. art. 62.003(c). This has

been the state of the law since 2001. Acts 2001, 77th Leg., ch. 211, §§ 2,

19, pp. 400, 405, eff. Sept. 1, 2001. Still, I am not entirely convinced that

the appeal to the Travis County district court was timely in this case, or

that the Third Court of Appeals had jurisdiction to review the district

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court’s determination. See note 5, ante. I am also not sure that, even if

the court of appeals did have jurisdiction, it properly docketed the case

as a civil matter. See TEX. CONST. art. V, § 3 (providing that the Texas

Supreme Court’s “appellate jurisdiction . . . shall extend to all cases

except in criminal law matters”); TEX. CONST. art. V, § 5 (providing that

this Court’s appellate jurisdiction extends to “all criminal cases of

whatever grade”). It seems odd to me to regard a determination about

the meaning of penal statutes as a civil law matter as opposed to a

criminal law matter.

In any event, the statute is crystal clear that the district court in

Travis County, at least, had subject matter jurisdiction to review DPS’s

determination. Also, DPS does not seem to have pursued discretionary

review of the Third Court of Appeals’ affirmance of DPS’s determination,

so it makes no difference in this case whether the matter is properly

regarded as civil or criminal—assuming it may be appealed beyond the

district court at all. I therefore have no reason at this point to question

the validity of the district court’s determination, and I will regard it as

law of the case for purposes of this subsequent writ application.

III. NEW FACTUAL BASIS?

The way Applicant drafted his ground for relief suggests he

intended to pursue subsequent habeas corpus review under the “new

facts” provision in Article 11.07, Section 4(a)(1): “Newly available

evidence shows that [Applicant] is actually innocent.” (Emphasis added.)

In that event, I must agree with the State that Applicant has not

demonstrated sufficient diligence in pursuing his claim. If the new

“evidence” of Applicant’s innocence is the appellate determination that

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the Colorado offense of which he was convicted is not “substantially

similar” to any Texas penal offense, then he could have sought that

appellate determination before he filed his initial writ application. If

that is his new fact, as he seems to allege, 6 it cannot be said that it was

“not ascertainable through the exercise of reasonable diligence on or

before that date.” TEX. CODE CRIM. PROC. art. 11.07 § 4(c). Thus, we are

not at liberty to reach the merits of his claim on that account.

IV. NEW LEGAL BASIS?

In his supporting memorandum of law, however, Applicant

exclusively invokes the “new law” exception under Section 4(a)(1),

rather than “new facts” as suggested by the writ application itself. But

in my view, he has not demonstrated that he should be allowed to

proceed under this exception either. Before “new law” may justify a court

in reviewing the merits of a subsequent-writ claim, it must go to “the . .

. legal basis” for that claim. TEX. CODE CRIM. PROC. art. 11.07 § 4(a)(1).

The legal basis for Applicant’s claim, however, is so-called “actual

innocence.” 7

6 Under “FACTS SUPPORTING” Applicant’s single ground for relief,

his writ application asserts, in totality: “[Applicant] pleaded guilty to failing to

register as a sex offender based on a Colorado conviction. The 201st District

Court and the Third Court of Appeals have since concluded that [Applicant’s]

Colorado offense is not reportable.”

7 I am speaking here of what the Court typically refers to as an “actual

innocence” claim. For my part, I would simply characterize it as a claim for

relief under the Elizondo standard, after this Court’s opinion in Ex parte

Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). As I have explained

repeatedly, satisfying this admittedly high burden is still “not the same as

establishing that the applicant is manifestly innocent.” Ex parte Cacy, 543

S.W.3d 802, 803 (Tex. Crim. App. 2016) (Yeary, J., concurring). See Ex parte

Chaney, 563 S.W.3d 239, 286 (Tex. Crim. App. 2018) (Yeary, J., concurring) (“I

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“Actual innocence” has been an available legal basis for a post-

conviction writ application since 1996, when this Court decided Ex parte

Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). And that legal basis

for relief has been available even for applicants who pled guilty, as

Applicant did, since Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App.

2002) (op. on original sub.). In fact, Applicant did argue actual innocence

in his initial writ application. He simply failed to adequately develop the

fact that the Colorado offense for which he was convicted was not

“substantially similar” to a Texas offense prior to filing his initial writ

application.

In concluding that Applicant is invoking a previously unavailable

legal basis for relief, the convicting court relies upon two opinions from

this Court. Findings and Order # 25. Those opinions observe that “a legal

basis was previously unavailable if subsequent case law makes it easier

to establish the claim and renders inapplicable factors that had

previously been weighed in evaluating the merits.” Ex parte Barbee, 616

S.W.3d 836, 839 (Tex. Crim. App. 2021) (citing Ex parte Chavez, 371

S.W.3d 200, 207 (Tex. Crim. App. 2012)). I do not think this principle

do not regard the Elizondo standard as sufficiently rigorous to justify the

nomenclature ‘actual innocence.’”); Ex parte Mallet, 602 S.W.3d 922, 925−26

(Tex. Crim. App. 2020) (Yeary, J., concurring) (agreeing that the applicant

satisfied Elizondo, but advocating that the Court “avoid the label ‘actual

innocence’”); Ex parte Santillan, 666 S.W.3d 580, 580−81 (Tex. Crim. App.

2023) (Yeary, J., concurring) (agreeing that the applicant had probably

established true “actual innocence,” and was therefore entitled to relief, but

refusing to join the Court’s opinion because it declared him “actually innocent”

simply because he satisfied the Elizondo standard”); Ex parte Lane, 670 S.W.3d

662, 680 n.1 & 684−85 (Tex. Crim. App. 2023) (Yeary, J., dissenting) (arguing

that in an initial writ application, the applicant established that he was

“absolutely innocent”—as opposed to “actually innocent”—of failure to register,

having proven in the writ proceeding that he had no reportable conviction).

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applies in this case.

In Chavez, for example, the applicant relied upon the extension of

the availability of false evidence claims to the State’s unknowing use of

false evidence, recognized earlier in Ex parte Chabot, 300 S.W.3d 768,

772 (Tex. Crim. App. 2009). Chavez, 371 S.W.3d at 204−05. And in

Barbee, the new law that the applicant asserted (unsuccessfully) was the

recent opinion of the United States Supreme Court in McCoy v.

Louisiana, 584 U.S. 414 (2018). Applicant identifies no comparable case

from this Court, the Supreme Court, or even “a court of appellate

jurisdiction of this state[,]” TEX. CODE CRIM. PROC. art. 11.07 § 4(b), that

identifies a new or modified standard that makes the legal basis for his

claim—“actual innocence”—newly available or easier to prove.

Applicant cites no subsequent case that has, for example,

moderated Elizondo’s “Herculean” standard for establishing a claim of

actual innocence. Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App.

2006). And the extension of the application of that standard to cover

guilty pleas occurred, as I have noted, in 2002, in Tuley. The fact that

some new development in the litigation history of Applicant’s actual

innocence claim may have resulted in law of the case that could

ultimately, if timely raised, have helped him does not mean that the

legal standard itself has morphed in a way that should excuse his failure

to pursue that new development earlier. 8

8 An analogy based upon post-conviction DNA testing comes readily to

mind. Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted

person may obtain a judicial determination that, if the results of post-

conviction DNA testing were favorable, and “had the results been available

during the trial of the offense, it is reasonably probable that the person would

not have been convicted.” TEX. CODE CRIM. PROC. art. 64.04. But Chapter 64—

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I agree with the State, therefore, that Applicant’s asserted

justification for re-raising his actual innocence claim is more in the

nature of a new factual basis than a new legal basis. It is certainly not

what Barbee/Chavez contemplated would be regarded as a previously

unavailable legal basis for relief. For that reason, I reject the convicting

court’s recommendation that we find Applicant has articulated a new

legal basis for his claim.

V. ACTUAL INNOCENCE GATEWAY?

Under Article 11.07, Section 4(a)(2), a subsequent post-conviction

application for writ of habeas corpus may proceed to a merits

determination if the applicant establishes that, “by a preponderance of

itself—provides no other relief to the convicted person. Instead, he must seek

relief in another forum: this Court, in the guise of a post-conviction application

for writ of habeas corpus. See Whitfield, 430 S.W.3d at 409 (“In the system that

the statutes have created, after a final decision of a court of appeals of a DNA-

testing appeal in a non-death-penalty case, the results of the proceeding may

be used for an application for post-conviction habeas-corpus relief under Article

11.07.”).

Suppose an inmate filed an initial Article 11.07 writ application

alleging that new DNA testing would prove his innocence, but he had not yet

sought such testing. Suppose that only after we denied relief did he seek DNA

testing, and that he then obtained a favorable result. Suppose he then filed a

subsequent writ application and alleged “new law” in the form of the convicting

court’s favorable determination that “it is reasonably probable that [he] would

not have been convicted.” Suppose, further, that the technology of DNA testing

had not advanced during the interim, and that he could not, therefore,

reasonably invoke Article 11.073 as a new “legal basis” for relief. See Ex parte

Kussmaul, 548 S.W.3d 606, 633 (Tex. Crim. App. 2018) (“[Applicants] rely on

a legal basis, Article 11.073, that was unavailable on the date [they] filed their

previous applications.”). Would this Court still say that “the legal basis” for his

claim could not have been reasonably formulated before he filed his initial writ

application? After all, he already made an actual innocence claim in that initial

application, and nothing prevented him from seeking DNA testing under

Chapter 64 before he filed it.

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the evidence, but for a violation of the United States Constitution[,] no

rational juror could have found the applicant guilty beyond a reasonable

doubt.” TEX. CODE CRIM. PROC. art. 11.07 § 4(a)(2). We are not called

upon to determine whether Applicant should be permitted to proceed

with his claim by virtue of this provision, however. Applicant does not

cite it in any of his pleadings as a ground for proceeding under Section

4.

This Court has made it clear in the past that, even with respect

to post-conviction applications for writs of habeas corpus that are

prepared pro se, “as a court of law we may not create claims that the

Court sua sponte believes meritorious when they are not arguably

present in an applicant’s pleadings.” Ex parte Carter, 521 S.W.3d 344,

350 (Tex. Crim. App. 2017); Ex parte Hicks, 640 S.W.3d 232, 235−36

(Tex. Crim. App. 2022) (Yeary, J., dissenting). Especially because

Applicant is now represented by able counsel, this Court should not sua

sponte “create” Applicant’s arguments for him even if it thinks those

arguments would have merit. Because Applicant himself offers no

argument why he should be allowed to proceed under Article 11.07,

Section 4(a)(2), I would not reach out and hold that he may.

VI. CONCLUSION

For these reasons, I would dismiss Applicant’s subsequent post-

conviction application for writ of habeas corpus as failing to satisfy the

strictures of Section 4 of Article 11.07. Because the Court does not, I

respectfully dissent.

FILED: May 1, 2024

PUBLISH