Appendix V — Quarterman v. Mines (No. 07-1482)

82

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 72,906

EX PARTE CHARLES E. MINES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS

CORPUS FROM ELLIS COUNTY

WOMACK, J. delivered the opinion of the Court, in

which PRESIDING JUDGE McCORMICK,

MANSFIELD, KELLER, HOLLAND, and KEASLER,

JJ., joined. JUDGE JOHNSON delivered a dissenting

opinion in which MEYERS and PRICE, JJ., joined.

The issue in this case is whether a person who is

sentenced to the punishment of death must be

competent to assist his counsel in filing an application

for habeas corpus relief. We find no such requirement

in the law.

The applicant was convicted of capital murder

and sentenced to death in June, 1989. The judgment

has been affirmed on appeal.’ Now he seeks habeas

; Mines v. State, 852 S.W.2d 941 (Tex. Cr. App. 1992),

vacated, Mines v. Texas, 510 U.S. 802, 126 L. Ed. 2d 13, 114S. Ct. 42

(1993), affirmed, Mines v. State, 888 S.W.2d 816 (Tex. Cr. App. 1994),

cert. denied, 514 U.S. 1117, 131 L. Ed. 2d 866, 1155S. Ct. 1978 (1995).

83

corpus relief, with an application that contains 68

allegations. The trial court found no issues of fact that

required resolution, and it recommended the denial of

habeas relief. We ordered the case filed and set for

consideration of one allegation, that the applicant is

incompetent to assist on the writ of habeas corpus. The

question before us is one of law; there is no finding that

the applicant is in fact incompetent to assist his habeas

counsel.”

The applicant argues that: (1) an applicant must

be competent to assist counsel with the application, (2)

counsel is rendered ineffective if the applicant is

incompetent, and (3) an applicant is entitled to a full

adversarial trial by jury for a competency

determination. To support his arguments he invokes

several constitutional provisions and statutes, which

we shall consider in order.

I. Statutory considerations.

The Texas Constitution authorizes -- indeed,

requires -- the legislature to devise an effectual system

of habeas corpus.* Without such legislation, the

constitutional authority of this Court to issue writs of

habeas corpus is not greater than that enjoyed by

. His counsel say they have been unable to get

information from the applicant. The State replies that the applicant

1s uncooperative, not incompetent.

3

"The writ of habeas corpus is a writ of right, and shall

never be suspended. The Legislature shall enact laws to render the

remedy speedy and effectual." TEX. CONST. art. I, § 12.

84

courts at common law.‘ Since 1967, statutes have

provided procedures for writs of habeas corpus after

conviction. [HN1] Although the Code of Criminal

Procedure provides detailed standards and procedures

for determining a defendant's incompetency to be tried

5 and a defendant's competence to be put to death,° it

contains no mention of a defendant's incompetence to

bring habeas corpus proceedings. The inaction of the

legislature is a significant indication that competence

to assist counsel is not required in habeas corpus

proceedings.

The habeas corpus statutes contain some

positive indications that it is not necessary that an

applicant be able to confer with counsel in the way that

a defendant confers with trial counsel. A petition for

the writ of habeas corpus may be signed and presented

by any person other than the applicant.’ Counsel may

, See Ex parte Davis, 947 S.W.2d 216, 225 (Tex. Cr.

App. 1996). The Texas Constitution expressly empowers the

legislature to regulate the exercise of this Court's original habeas

corpus jurisdiction. Jd. at 224 (quoting TEX. CONST. art. V, § 5:

"Subject to such regulations as may be prescribed by law, the Court

of Crimina)] Appeals and the Judges thereof shall have the power to

issue the writ of habeas corpus ...").

This citation to Davis is to an opinion of the Court,

although it was not the lead opinion. See Ex parte Smith, 977 S.W.2d

610, 611 n.4 (Tex. Cr. App. 1998).

; See TEX. CODE CRIM. PROC. art. 46.02.

. See id. art. 46.04.

”

Either the party for whose relief the writ is intended,

or any other person for him, may present a petition to the proper

85

consent to hearing of the application without the

applicant's being present.°

The applicant would have us infer a requirement

of mental competence from Article 11.071 of the Code of

Criminal Procedure. That article requires that a habeas

corpus applicant who seeks relief from a judgment

imposing a penalty of death shall be represented by

competent counsel unless the applicant has elected to

proceed pro se.’ In this context "competent" refers to

an attorney's qualifications and abilities. The article

further requires counsel to investigate expeditiously

the factual and legal grounds for an application.’”

authority for the purpose of obtaining relief." TEX. CODE CRIM.

PROC. art. 11.11. "The word applicant, as used in this Chapter,

refers to the person for whose relief the writ is asked, though the

petition may be signed and presented by any other person." Jd. art.

11.12.

, “The person on whom the writ is served shall bring

before the judge the person in his custody, or under his restraint,

unless it be made to appear that by reason of sickness he cannot be

removed; in which case, another day may be appointed by the judge

or court for hearing the cause, and for the production of the person

confined; or the application may be heard and decided without the

production of the person detained, by the consent of his couneel." Jd.

art. 11.31.

° "An applicant shall be represented by competent

counsel unless the applicant has elected to proceed pro se and the

convicting trial court finds, after a hearing on the record, that the

applicant's election is intelligent and voluntary.” Jd. art. 11.071, §

2(a).

” "On appointment, counsel shall investigate

expeditiously, before and after the appellate record is filed in the

court ef criminal appeals, the factual and legal grounds for the filing

86

The applicant notes that article 11.071 requires

that if an applicant wants to waive counsel in habeas

proceedings, his waiver must be intelligent and

voluntary. He argues that this assumes a level of

mental competence that is on par with the standard for

self-representation at trial under the federal and state

constitutions. He argues, but does not explain why, this

standard should apply to habeas proceedings when an

applicant has not waived the right to counsel.

The competency standard for pleading guilty or

waiving the right to counsel at a criminal trial is not

higher than the competency standard for standing trial;

"the competence that is required of a defendant seeking

to waive his right to counsel is the competence to waive

the right, not the competence to represent himself.’ If

we assume that this standard applies to a habeas:

corpus applicant's waiver of the right to counsel (a

question that is not before us today), we are not

justified in assuming that an applicant must have the

same level of competence when he does not waive the

right to counse!. A requirement that waiving counsel

in habeas proceedings must be a knowing and

voluntary decision, does not mean that the legislature

intended to incorporate the requirement that an

applicant be competent in retaining the statutory right

to counsel in habeas proceedings.

of an application for a writ of habeas corpus." /d. § 3(a).

Godinez v. Moran, 509 U.S. 389, 399, 125 L. Ed. 2d

321, 113 S. Ct. 2680 (1993).

87

The applicant notes that in some jurisdiction an

accused must be competent to be extradited. This is

not the law in Texas.”

II. Constitutional considerations.

The United States Constitution guaranties a

person's right to counsel in criminal prosecutions.”* It

does not provide a right to counsel in state habeas

corpus proceedings.

We have never held that prisoners have a

constitutional right to counsel when

mounting collateral attacks upon their

convictions, see Johnson v. Avery, 393 U.S.

483, 488, 21 L. Ed. 2d 718, 89 S. Ct. 747,

(1969), and we decline to so hold today.

[HN5] Our cases establish that the right to

appointed counsel extends to the first appeal

of right, and no further. Thus, we have

rejected suggestions that we establish a right

to counsel on discretionary appeals.

Wainwright v. Torna, 455 U.S. 586, 71 L. Ed.

2d 475, 102 S. Ct. 1800 (1982); Ross v.

Moffitt, 417 U.S. 600, 41 L. Ed. 2d 341, 94S.

s Texas law requires only that people facing extradition

be afforded the right to counsel. See TEX. CODE CRIM. PROC. art.

61.13 § 10; Ex parte Taylor, 531 S8.W.2d 333, 334 (Tex. Cr. App. 1975).

13

"In all criminal] prosecutions, the accused shall enjoy

the right ... to have the assistance of counsel for his defense." U.S.

CONST. amend. VI. The identical right is guarantied in state

prosecutions through the Due Process Clause of the Fourteenth

Amendment. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799,

83 S. Ct. 792 (1963).

88

Ct. 2437 (1974). We think that since a

defendant has no federal constitutional right

to counsel when pursuing a discretionary

appeal on direct review of his conviction, a

fortiori, he has no such right when attacking

a conviction that has long since become final

upon exhaustion of the appellate process."

This holding applies in capital cases as well as in

others." “Consequently, a petition cannot claim

constitutionally ineffective assistance of counsel in such

proceedings.”

Similarly, the Texas Constitution” provides no

right to counsel in post-conviction habeas corpus

proceedings. ®

The reason why the right to counsel in a criminal

prosecution does not extend to all post-trial proceedings

14

Finley v. Pennsylvania, 481 U.S. 551, 555 (1987).

” See Murray v. Giarratano, 492 U.S. 1 (1989) (applying

the rule to capital cases),

“ Yoleman v. Thompson, 501 U.S. 722, 762 (1991). “See

Wainwright v. Torna, 455 U.S. 686 (1982) (where there is no

constitutional right to counsel there can be no deprivation of effective

assistance).” /bid.

" In all criminal prosecutions, the accused...shal! have

the night of being heard by himself or counsel..." TEX. CONST art. I,

§ 10.

e See Davis, 947 S.W.2d at 229.

89

lies in the difference between the trial and post-trial

stages of the process.

At the trial stage of a criminal

proceeding, the right of an indigent

defendant to counsel is fundamental and

binding upon the States by virtue of the

Sixth and Fourteenth Amendments. But

there are significant differences between

the trial and appellate stages of a

criminal proceeding. The purpose of the

trial stage from the State's point of view

is to convert a criminal defendant from a

person presumed innocent to one found

guilty beyond a reasonable doubt. To

accomplish this purpose, the State

employs a prosecuting attorney who

presents evidence to the court, challenges

any witnesses offered by the defendant,

argues rulings of the court, and makes

direct arguments to the court and jury

seeking to persuade them of the

defendant's guilt. Under these

circumstances "reason and_ reflection

require us to recognize that in our

adversary system of criminal justice, any

person haled into court, who is too poor to

hire a lawyer, cannot be assured a fair

trial unless counsel is provided for him."

By contrast, it is ordinarily the

defendant, rather than the State, who

initiates the appellate process, seeking

not to fend off the efforts of the State's

90

prosecutor but rather to overturn a

finding of guilt made by a judge or a jury

below. The defendant needs an attorney

on appeal not as a shield to protect him

against being “haled into court" by the

State and stripped: of his presumption of

innocence, but rather as a sword to upset

the prior determination of guilt. This

difference is significant for, while no one

would agree that the State may simply

dispense with the trial stage of

proceedings without a_ criminal

defendant's consent, it is clear that the

State need not provide any appeal at all.”

Likewise, a state is not required to

provide post-conviction remedy.

Postconviction relief is even further

removed from the criminal trial than is

discretionary direct review. It is not part

of the criminal proceedings itself, and it is

in fact considered to be a civil in nature.

See Fay v. Nora, 372 U.S. 391, 423-24

(1963). It is a collateral attack that

normally occurs only after the defendant

has faiied to secure relief through direct

review of his conviction. States have no

obligation to provide his avenue of relief,

cf. United States v. MacCollom, 426 U.S.

317, 323 (1976) (plurality opinion), and

when they do, the fundamental fairness

9 Moffitt, 417 U.S. at 610-11 (citations omitted).

91

mandated by the Due Process Clause does

not require that the State supply a lawyer

as well.”

The Texas Constitution does not guaranty a

right to habeas corpus relief that is broader than that

available at common law, which does not include cases

such as applicant’s.”"

These holdings foreclose the applicant's

argument that a habeas-corpus applicant's competence

to consult with counsel is required by the provisions for

right to counsel in the state and federal constitutions.

Other constitutional provisions must be

considered. The requirement that a criminal defendant

be competent to consult with counsel is not based only

on the right to the assistance of counsel. Another right

is the presumption of innocence, which is guarantied by

the Due Process Clause.” Requiring that a criminal

defendant be competent to be tried preserves the

presumption of innocence by ensuring that a criminal

defendant can help the defense attorney defend the

client.”*7 A defendant must be able to assist trial

- Finley, 481 U.S. at 56°57. “The Due Process Clause

of the Fifth Amendment does not establish any right to an appeal, see

Griffin v. Illinois, 351 U.S. 12 (1956) (plurality opinion), and certainly

does not establish any right to collaterally attack a final judgment of

conviction.” MacCollom, 426 U.S. at 323 (plurality opinion).

= Davis, 947 S.W.2d at 225.

- Estelle v. Williams, 425 U.S. 501, 503 (1976).

= Moffitt, 417 U.S. at 610.

92

counsel because often the defendant possesses the only

information that may cast doubt on the State's case. If

a defendant is incompetent, we cannot be sure that the

defendant can communicate to counsel the facts

necessary to mount an effective defense. It also has

been said that the requirement of competence is a

byproduct of the rule requiring that a defendant be

present at trial, since a trial of an incompetent

defendant is virtually a trial in absentia.** The right to

be present is largely based on the Confrontation

Clause, although it also has a due process component.”

But an applicant for the post-conviction writ of

habeas corpus enjoys neither a presumption of

innocence” nor a constitutional right to be present at a

hearing.” These constitutional rights that require

competence to assist trial counsel do not support a

requirement that an applicant be competent to assist

habeas counsel.

- See Drope v. Missourt, 420 U.S. 162, 171 (1975).

- See United States v. Gagnon, 470 U.S. 522 (1985).

” See Moffitt, 417 U.S. at 610. The applicant is actually

in the opposite position. "In a habeas corpus proceeding, there exists

a presumption of regularity of the judgment which can only be

overcome by the petitioner['s] showing that there is substantial

evidence tc the contrary." Ex parte Young, 479 S.W.2d 45, 47 (Tex.

Cr. App. 1£72).

” State v. Basile, 942 S.W.2d 342 (Mo. 1997) (motion for

post-conviction relief is civil proceeding and therefore there is no due

process right to be present); State v. Leisure, 828 S.W.2d 872 (Mo.

1989) (for same reason there is no right under Confrontation Clause

to be present).

93

Another reason for requiring competency at trial

is that the defendant must make significant choices

that require the advice of counsel but that are

ultimately decided by the defendant.” The defendant

must be competent to decide whether to invoke or to

waive such personal constitutional rights.” Such

choices are not required in post-trial proceedings such

as this.*°

The applicant says that he would be subiected to

cruel and unusual punishment if he were put to death

when he was not competent to assist his habeas

counsel. Cruel and unusual punishments are forbidden

by the federal and state constitutions.*’ The prohibition

- "It is also recognized that the accused has the

ultimate authority to make certain fundamental decisions regarding

the case, as to whether to plead guilty, waive a jury, testify in his or

her own behalf, or take an appeal. In addition, we have held that,

with some limitations, a defendant may elect to act as his or her own

advocate." Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103

S. Ct. 3308 (1983) (citations omitted).

= Godinez v. Moran, 509 U.S. 389, 398, 125 L. Ed. 2d

321, 113 S. Ct. 2680 (1993).

- In this proceeding there is no plea of guilty, trial by

jury, or appeal. There is a choice to testify in the sense that any civil

litigant has such a choice, but the decision does not inevitably involve

the waiver of the right against self-incrimination as the defendant's

choice to testify at the criminal trial does.

. "Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unugual punishments inflicted." U.S.

CONST. amend. VIII.

"Excessive bail shal) not be required, nor excessive

fines imposed, nor cruel or unusual punishment inflicted." TEX.

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of cruel and unusual punishments in the Eighth

Amendment to the Constitution of the United States

prevents a State from carrying out a sentence of death

upon a prisoner who is insane.” "Whether its aim be to

protect the condemned from fear and pain without

comfort of understanding, or to protect the dignity of

society itself from the barbarity of exacting mindless

vengeance, the restriction finds enforcement in the

Eighth Amendment.”

The applicant does not claim that he is

incompetent to be put to death. He does not explain

why the requirement of sanity at the time the sentence

is executed implies a requirement of competence to

assist counsel in habeas corpus litigation. The

procedures are not similar, the roles of the convicted

person are not the same, and the standard for

competence to be put to death is not the same as the

standard the applicant proposes for competence in

habeas corpus proceedings. The applicant does not

claim that habeas corpus proceedings would subject

him to fear and pain without comfort of understanding,

or that counsel's filing a habeas-corpus application

without his assistance would constitute the barbarity of

exacting mindless vengeance.

CONST. art. 1, § 13.

sad Ford v. Wainwright, 477 U.S. 399, 91 L. Ed. 2d 335,

106 S. Ct. 2595 (1986).

3 Td. at 410.

95

In light of the absence of legislative action, the

statutory context, and the differences in the nature of

the rights and procedures at trial and in post-conviction

proceedings, we find no justification in inferring a

statutory requirement that the applicant be mentally

competent for habeas corpus proceedings in the way

that a defendant must be mentally competent for trial.

III. Conclusion

As the Supreme Court of California said, in a

case in which it refused to stay an appeal because the

appellant was incompetent:

Arguably the situation is different

regarding potential habeas corpus

challenges, which may be based on

matters outside the appellate record. We

cannot rule on the question in a vacuum.

We suspect that most, if not all, potential

challenges in a habeas corpus proceeding

could be made without additional input

from defendant. Current defense counsel

have access to the appellate record, to

investigators, to trial counsel's case files,

and to the knowledge and experience of

trial counsel. ... Defendant's alleged

incompetency might be grounds for the

untimely raising of an issue if it could not

have been raised earlier because of that

incompetency. The prohibition against

executing an insane person provides

additional protection for someone who,

because of incompetency, was unable to

96

pursue a meritorious challenge to the

judgment.

For these reasons, current counsel

can and should seek to challenge the

judgment even if defendant is currently

incompetent. If, in a petition for a writ of

habeas corpus, counsel make a specific

showing why specified contentions require

defendant's ability to cooperate, and why

the necessary information cannot be

obtained from other sources, we will

consider the question at that time.

Additionally, if a prima facie showing is

made on any contention, and an

evidentiary hearing is ordered, defendant

may raise the question of his competence

to participate in the evidentiary hearing

at that time.*

" People v. Kelly, 1 Cal. 4th 495, 546-47, 822 P.2d 385,

414, cert. denied, 506 U.S. 881, 113 S. Ct. 232, 121 L. Ed. 2d 168

(1992). See also Fisher v. State, 845 P.2d 1272, 1277 (Okla. Cr. App.

1992) (if after the disposition of his first post-conviction attack, an

applicant is found to have been incompetent to assist his attorney and

is found to possess knowledge of facts entitling him to relief that he

could not share with his attorney due to his incompetence, he may

bring a subsequent post-conviction attack). Cf Calderon v. U.S. Dist.

Court for Cent. Dist. Cal., 163 F.3d 530, 541 (9th Cir. 1998) (alleged

mental incompetency justifies equitable tolling of time limit imposed

by the federal habeas corpus statute for a reasonable time after the

district court makes a competency determination). But see Carter v.

State, 706 So. 2d 873, 875 (Fla. 1997) (applying trial standard of

competency); People v. Owens, 13911]. 2d 351, 564 N.E.2d 1184, 1186,

151 Ill. Dec. 522 (Ill. 1999) (same); State v. Debra A.E., 188 Wis. 2d

111, 523 N.W.2d 727 (1994) (same).

97

The relief requested is denied.

En banc.

Delivered September 13, 2000.

Publish.

98

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 72,906

EX PARTE CHARLES E MINES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS

CORPUS FROM ELLIS COUNTY

Johnson, J., filed a dissenting opinion, in which

Meyers and Price, J.J., joined.

DISSENTING OPINION

I respectfully dissent. The majority concludes

that TEX. CODE CRIM. PROC. art. 11.07 does not

require that an applicant be competent to assist his

counsel in filing an application for a writ of habeas

corpus. I disagree.'

It is true, as the majority notes, that our code of

criminal procedure “contains no mention of a

defendant's incompetence to bring habeas corpus

proceedings.” Ante, at ____ (slip op. at 3). Citing to other

provisions of art. 11.071 that are not directly related to

The majority also finds that such competence is not

constitutionally required. Because | find that it is statutorily

required, I do not reach the constitutional issue.

99

the issue of competence, ne wajority concludes that

such competence is not statutorily required.

That, however, is not the end of our inquiry.

Although art. 11.071 does not explicitly contain a

provision dealing with an applicant's competence, it

does, as the majority acknowledges,’ mandate that

"counsel shall investigate expeditiously. . .the factual

and legal grounds for the filing of an application for a

writ of habeas corpus." TEX. CODE CRIM. PROC. art.

11.071, § 3(a). While it is not necessarily so in every

habeas application, the circumstances of a particular

application may dictate that in order for counsel to be

able to fully comply with this provision of the code, he

must be able to communicate with and be assisted by

the applicant. That is, an applicant's competence to

assist his/her counsel may be necessary in order for

counsel to comply with art. 11.071, § 3(a). In such a

case, our code of criminal procedure does implicitly and

necessarily require that an applicant be competent to

assist his counsel in filing a writ application.

As at least two other state supreme courts have

recognized, an applicant's ability to communicate with

counsel may be particularly important in the

development of factual grounds. See Carter v. State,

706 So. 2d 873, 875 (Fla. 1997); State v. Debra A.E.,,

188 Wis. 2d 111, 523 N.W.2d 727, 732 (Wis. 1994).

However, not all habeas petitions will necessarily

require development of grounds which require counsel

Ante, at ___ (slip op. at 3-5).

Ante, at __ (slip op. at 4).

100

to communicate with and be assisted by applicant.

Therefore, following the rationale of the Florida

Supreme Court in Carter, I would hold that a habeas

court be required to hold a competency hearing when

an applicant has shown that there are "specific factual

matters at issue that require applicant to competently

consult with counsel," i.e., "when there are reasonable

grounds to believe that a capital defendant is

incompetent to proceed in postconviction proceedings in

which factual matters are at issue, the development or

resolution of which require [applicant's} input." Carter,

706 So. 2d at 875. Such an approach would aid in

ensuring adherence to the legislative directive of art.

11.071, § 3(a).*

In the instant application, counsel for applicant

filed a motion with the habeas court for a competency

hearing. The court did not rule on the motion by the

time the writ was filed with this court. Therefore, I

would remand this cause to the habeas court to give

applicant the opportunity to demonstrate that there are

specific factual matters at issue which would require

. Though based on a legislative, rather than

constitutional, mandate, this approach is also generally consistent

with our recent decision in Potter v. State, 21 S.W.3d 290, 296 (Tex.

Crim. App. 2000), in which we held that within the context of

extradition proceedings, "the accused must be sufficiently competent

to discuss with his counsel facts relating to the limited defenses [of

identity and presence) that may be raised."

101

that applicant be competent to consult with counsel.

Because the court does not do so, | dissent.

Johnson, J.

Date Delivered: September 13, 2000

Publish