EX PARTE CLEVE FOSTER (dissenting)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-65,799-02
EX PARTE CLEVE FOSTER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. C-1-007519-0839040 FROM THE 
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY 
Price, J., filed a dissenting statement.
DISSENTING STATEMENT

The applicant has filed a motion asking the Court to reconsider on its own motion its dismissal of his subsequent application for a writ of habeas corpus in a capital case, in which he alleged, among other things, that we should construe Article 11.071, Section 5(a)(1) to authorize a subsequent capital habeas application when the attorney appointed to prepare his initial writ application performs incompetently. (1) In order to rule in the applicant's favor in this particular claim, however, the Court would be obliged to overrule its opinion in Ex parte Graves. (2) The Court dismissed the applicant's subsequent writ application on December 30, 2010, and now refuses to take any action on his suggestion for reconsideration. Once again, I am compelled to register my dissent.

The preeminent rule of statutory construction has always been to effectuate the intent of the Legislature. Since Boykin v. State, (3) we have sometimes gotten too caught up in the niggling niceties of particular statutory language to the detriment of overarching legislative intent. Article 11.071 as a whole was meant to endow those who have been condemned to death in Texas with one last chance at a fair and complete review of the constitutional legitimacy of their conviction and punishment. That last chance is neither fair nor complete when the attorney who is appointed to assist in the endeavor does not properly do his job. The Court today persists in its crabbed interpretation of Section 5(a)(1), rejecting the notion that ineffectiveness of initial habeas counsel can ever constitute a newly available fact justifying a subsequent capital habeas application. While it may be insisted that this interpretation is the most faithful to the black letter of the statute, a more forgiving construction is more consistent with the manifest legislative intent. And it would assure that inmates like Anthony Graves do not have to resort to the federal courts for the habeas relief that ultimately leads to their exoneration. Just because we are judges does not mean we have to leave our humanity in the robing room.

I would stay the applicant's execution and take this opportunity to overrule Graves. Because the Court stubbornly declines to do so, I respectfully dissent.

Filed: January 10, 2011

Do Not Publish

1. Tex. Code Crim. Proc. art. 11.071, 5(a)(1).

2. 70 S.W.3d 103 (Tex. Crim. App. 2002).

3. 818 S.W.2d 782 (Tex. Crim. App. 1991).