Dennis, Phillip Timothy

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 2022
• Docket: WR-89,188-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-89,188-01

EX PARTE PHILLIP TIMOTHY DENNIS

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. W14-33270-L(A) IN CRIMINAL DISTRICT COURT NO. 5 FROM DALLAS COUNTY

NEWELL, J. delivered the opinion for a unanimous Court.

If a defendant files his application for post-conviction habeas

corpus relief alleging that he is physically confined pursuant to his

conviction, must he further allege collateral consequences that flow from

his conviction? No. We filed and set this application to determine the

appropriate disposition in light of Applicant’s pleadings. One possible

disposition is to dismiss the application pursuant to our decision in Ex

parte Harrington. This would afford Applicant leave to re-file so that

Applicant could allege in his writ application that he was not only Dennis - 2

convicted and sentenced to a term of confinement, but that he also

suffered collateral consequences of his conviction. Another possible

disposition would be to treat Applicant’s pleadings as sufficient when

they were filed and consider the merits of Applicant’s claims.

We believe the latter approach is better. Applicant’s pleadings at

the time they were filed sufficiently alleged that Applicant was confined

(as that term is defined under Article 11.07 of the Code of Criminal

Procedure) by virtue of his serving the sentence on his felony conviction.

That his sentence discharged during the pendency of his writ did not

retrospectively render his pleadings insufficient. Consequently, we will

address the merits of his claims.

Background

In 2017, Applicant was convicted of felony driving while

intoxicated, and sentenced to three years’ imprisonment. In 2018, he

filed an application for writ of habeas corpus alleging that trial counsel

was ineffective for failing to investigate whether Applicant’s prior

Arkansas DWI conviction should have been used as a jurisdictional

enhancement in this case. Upon receiving the 2018 application we

remanded the case, but we did not receive the supplemental record with

findings of fact and conclusions of law from the habeas court until 2020. Dennis - 3

Applicant’s sentence discharged in 2019 while his writ application was

pending.

Analysis

The writ of habeas corpus, which Sir William Blackstone called the

most celebrated writ in the English law, and others have named “the

great writ of liberty,” is ancient. 1 There are references to its use prior

to the signing of Magna Carta, and it was formally adopted in the Habeas

Corpus Act of 1679. 2 The writ was developed to protect against

executive detention; its function was to block imprisonment by royal fiat

without a judicial hearing. 3 The writ was not an appeal device after

conviction by a “legal,” competent tribunal, but rather an extraordinary

remedy against executive detention. 4 Today, the writ is available only

for relief from jurisdictional defects and violations of constitutional or

fundamental rights. 5

1 Ex parte Lawson, 966 S.W.2d 532, 533 (Tex. App.—San Antonio 1996, pet. ref’d), superseded on other grounds.

2 Id.

3 Neil Douglas McFeeley, The Historical Development of Habeas Corpus, 30 SOUTHWESTERN L.J. 585 (1976).

4 Id.

5 Ex parte McCain, 67 S.W.3d 204, 207 (Tex. Crim. App. 2002). Dennis - 4

The Texas Code of Criminal Procedure sets forth the following

definition for the writ of habeas corpus:

“The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, directed to anyone having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.” 6

Because of the unique nature of the remedy, habeas corpus relief is

underscored by elements of fairness and equity. 7 These elements of

fairness and equity are protected by the United States Constitution, 8

and the Texas Constitution commands that the privilege of the writ of

habeas corpus shall never be suspended. 9 Further, Article 11.04 of the

Texas Code of Criminal Procedure instructs that we are to construe

every provision relating to the writ of habeas corpus most favorably to

give effect to the remedy and protect the rights of the person seeking

relief under it. 10

Article 11.07 and Ex parte Harrington

6 TEX. CODE CRIM. PROC. art. 11.01.

7 Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).

8 U.S. CONST. art. I, § 9, cl. 2.

9 TEX. CONST. art. I, § 12.

10 TEX. CODE CRIM. PROC. art. 11.04. Dennis - 5

For a court to consider an application for writ of habeas corpus,

the writ application must be complete on its face. Texas law has long

required all post-conviction applicants for writs of habeas corpus to

plead specific facts which, if proven to be true, might call for relief. 11

Post-conviction writ applicants must allege specific facts so that anyone

reading the writ application would understand precisely the factual basis

for the legal claim. 12 When an applicant fails to do so, all requested

relief is denied. 13

Article 11.07 of the Texas Code of Criminal Procedure sets forth

the procedures for an application for writ of habeas corpus in which the

applicant seeks relief from a felony judgment imposing a penalty other

than death. 14 Prior to 1995, Article 11.07 did not define “confinement,”

and this Court repeatedly held that the statute provided relief only for

11 See, e.g., Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (“In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief.”).

12 See, e.g., Ex parte Tovar, 901 S.W.2d 484, 485-86 (Tex. Crim. App. 1995) (“In order to be entitled to post conviction collateral relief the applicant must raise a question of constitutional magnitude, alleged facts establishing the constitutional violation and, if appropriate, prove he was harmed.”).

13 See, e.g., Ex parte Akhtab, 901 S.W.2d 488, 490 (Tex. Crim. App. 1995) (“Because applicant does not allege or prove facts which, if true, would entitle him to relief, all requested relief is denied.”)

14 TEX. CODE CRIM. PROC. art. 11.07(1)(c). Dennis - 6

those in custody. 15 In 1995, the Legislature amended Article 11.07 to

explicitly include collateral consequences in the definition of

“confinement.” 16 As amended, Article 11.07 now defines “confinement”

as “confinement for any offense or any collateral consequence resulting

from the conviction . . . [.]” 17

In Ex parte Harrington, we considered the implications of this

amendment to Article 11.07. 18 After his sentence was discharged,

Harrington filed an application for writ of habeas corpus alleging an

involuntary plea due to ineffective assistance of counsel. Despite the

fact that the applicant was no longer in custody at the time he filed his

application, he claimed he was confined under Article 11.07 as a result

of present and future collateral consequences arising from his

challenged conviction. 19 There, we held that a person who has

discharged his sentence prior to filing an application, but who continues

to suffer collateral consequences arising from the challenged conviction,

15 Ex parte Renier, 734 S.W.2d 349 (Tex. Crim. App. 1987).

16 Acts of May 24, 1995, 74th Leg., R.S., ch. 319, § 5, sec. 3(c), 1995 Tex. Gen. Laws 2764, 2771 (eff. Sept. 1, 1995) (current version at TEX. CODE CRIM. PROC. art. 11.07, § 3(c)).

17 TEX. CODE CRIM. PROC. art. 11.07(3)(c).

18 Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010).

19 Id at 458. Dennis - 7

is entitled to seek post-conviction habeas relief under Article 11.07. 20

We came to this conclusion after we determined that the record

supported the trial judge's findings concerning adverse consequences to

the applicant's present and future employment opportunities. 21 And to

the extent that the trial court made findings regarding possible future

collateral consequences, those findings were unnecessary to our holding

given that Harrington had sufficiently alleged and proven adverse

present collateral consequences flowing from his conviction. 22

Applicant’s Pleadings Are Sufficient

As discussed above, Article 11.07 as it has been amended now

defines confinement as including both confinement pursuant to a

conviction and any collateral consequences that flow from a conviction.

Given this definition, an applicant need not plead a collateral

consequence of the conviction if, at the time of the pleading, the

defendant is seeking relief from a conviction for which he is confined.

Under those circumstances, the applicant has necessarily pleaded

specific facts regarding his confinement, that, if proven true, would

20 Id.

21 Id at 457–58.

22 Id. at 455–56 (listing five past or present collateral consequences and three future collateral consequences). Dennis - 8

entitle him to relief (assuming the applicant has also pleaded specific

facts to support a cognizable and meritorious claim).

In this case, Applicant was serving his sentence when he filed the

application, thus there was no need for him to plead collateral

consequences at the time he filed his application. By alleging that he

was confined pursuant to his conviction, Applicant alleged facts that, if

true, would establish confinement as defined in Article 11.07. Pleading

collateral consequences was unnecessary, and dismissal to give

Applicant an opportunity to correct the deficiency would be unnecessary.

Had Applicant filed his application after he had served his sentence,

Applicant would have been required under Ex parte Harrington to

specifically allege that he suffered collateral consequences from his

conviction.

Applicant’s Ineffective Assistance of Counsel Claim

In his application, Applicant contends that he received ineffective

assistance of trial counsel. Applicant claims that his trial counsel failed

to investigate whether Applicant’s prior Arkansas DWI conviction should

have been used as a jurisdictional enhancement in this case. Having

considered the habeas court’s findings, we agree and conclude that

Applicant’s claim is without merit. Dennis - 9

In an ineffective assistance claim, the applicant must prove that

counsel erred and that the error prejudiced the defense. 23 An attorney's

deficient performance prejudices an accused when there is a reasonable

probability that the outcome of the trial would have been different but

for counsel's deficiency. 24 One necessary facet of professional

assistance is the investigation of the facts and law applicable to a case. 25

Under Strickland, counsel has a duty in every case to make a reasonable

investigation or a reasonable decision that an investigation is

unnecessary. 26 When an Applicant raises the claim that counsel was

ineffective for failing to investigate, he must show what a more in-depth

investigation would have shown. 27

The habeas court recommends denying relief. Applicant’s case

was straightforward, and the evidence against him was substantial.

According to trial counsel’s affidavit, trial counsel met with Applicant,

and Applicant did not like the legal opinion his trial counsel provided

him. Applicant’s trial counsel discussed with him in detail the

23 Strickland v. Washington, 466 U.S. 668, 687 (1984).

24 Cox v. State, 389 S.W.3d 817, 81 (Tex. Crim. App. 2012).

25 Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013).

26 Id. (citing Strickland, 466 U.S. at 691).

27 Mooney v. State, 817 S.W.2d 693, 697 (Tex. Crim. App. 1991). Dennis - 10

jurisdictional paragraphs in the indictment that described Applicant’s

prior DWI convictions. At no point did Applicant take issue with either

jurisdictional paragraph. The trial court found trial counsel’s affidavit

credible.

Applicant signed a judicial confession stipulating to the evidence,

including the jurisdictional paragraphs alleging the previous Arkansas

DWI. Though Applicant claims in his writ application that he was never

previously convicted of a DWI in Arkansas, the record shows that

Applicant was sentenced to seven days in jail and a $750.00 fine in 2005

in the Benton County, Arkansas District Court after entering a plea of

guilty to DWI Second Offense. We agree with the habeas court’s

findings and conclusions. We deny relief.

Conclusion

When Applicant filed his application for writ of habeas corpus, he

was still actively serving his sentence. We will construe Article 11.07

favorably in order to protect the rights of the person seeking relief under

it as Article 11.04 instructs. Thus, we conclude that Applicant was not

required to plead collateral consequences because his pleadings were

sufficient at the time that he filed the application. Having reached the

merits of Applicant’s claim, we hold that Applicant has failed to satisfy

the first Strickland prong. We therefore deny relief. Dennis - 11

Filed: December 21, 2022

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