Owens, Ex Parte Brian Keith

• Court: Court of Criminal Appeals of Texas
• Decided: September 13, 2006
• Docket: AP-74,996
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-74,996 EX PARTE BRIAN KEITH OWENS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM TYLER COUNTY

Keller, P.J., filed a dissenting opinion.

In footnote 38, the Court says that applicant has pled sufficient facts to establish, in accordance with the prejudice requirement of Ex parte Crow, that he would have filed a petition for discretionary review had he been timely informed of his right to do so ⁽¹⁾ because his newly- appointed counsel "filed a supplement to the writ application in which he expressly alleged that the applicant would have filed a petition for discretionary review . . . ." ⁽²⁾ But that supplement was signed only by the attorney and was not verified. In Ex parte Golden, we explained that, while the absence of verification is not jurisdictional, relief should be denied where the record does not otherwise substantiate the unsworn allegation. ⁽³⁾ And in the absence of sufficient pleadings, we need not and should not remand for further proceedings: "An applicant's failure to swear to the truth of the facts alleged in his petition deprives him of the opportunity to prove those allegations." ⁽⁴⁾ Nothing in the habeas record substantiates the unsworn allegation contained in the supplement. Applicant could have made a sworn allegation that he would have filed a PDR upon being informed of his right to do so if, in fact, that allegation were true. He did not, and thus, he is not entitled to relief.

I respectfully dissent.

Date filed: September 13, 2006

Publish

1. 180 S.W.3d 135, 138 (Tex. Crim. App. 2005).

2. Court's op. at 12, n. 38.

3. 991 S.W.2d 859, 862 n. 2 (Tex. Crim. App. 1999).

4. Id.