Harvin, Clifton Dewayne

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0634-13 CLIFTON D. HARVIN, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS MONTAGUE COUNTY Cochran, J., filed a statement concurring in the refusal of appellant's petition, in which Alcala, J., joined. On July 9, 2009, appellant filed an application for a writ of habeas corpus raising several claims, including actual innocence and ineffective assistance of his trial counsel. (1) Appellant also raised a claim that his appellate lawyer was ineffective for failing to tell him that his conviction was affirmed on appeal, and he requested an opportunity to file an out-of-time petition for discretionary review. (2) Because he was entitled to an out-of-time PDR, this Court granted his request and dismissed the rest of his claims without prejudice. (3) However, appellant has used this PDR to raise claims of actual innocence and Brady (4) violations that the court of appeals did not address on direct appeal. As the court of appeals explained almost ten years ago, these are claims that should be raised in an application for a writ of habeas corpus under Article 11.07. (5) I concur in the Court's decision to deny appellant's PDR, but write separately to clarify why we have not addressed his Brady and actual-innocence claims and to emphasize that he may still raise those claims in an application for a writ of habeas corpus. In 1996, appellant pled guilty to aggravated sexual assault of his young daughter and was placed on ten years' deferred adjudication community supervision. (6) At the time of his plea, appellant and his wife were in the middle of a hotly contested divorce case. About a year and a half later, appellant claimed that he was actually innocent of sexually molesting his daughter; he took and passed two polygraph tests. During the next five years he repeatedly requested the trial judge to terminate his community supervision based on innocence. (7) Despite hearing appellant's motions, the trial court declined to rule on them. (8) In 2003, the State filed a motion to adjudicate. (9) Appellant responded with a "motion to withdraw the motion to revoke, to withdraw his guilty plea, and to dismiss the underlying felony due to newly discovered exculpatory evidence." (10) The trial court denied appellant's motion, adjudicated him guilty, and sentenced him to sixty years in prison. (11) On direct appeal, the court of appeals affirmed appellant's conviction and sentence. It declined to address the trial judge's refusal to rule on appellant's motion to terminate community supervision based on actual innocence. (12) The court also gave appellant a "Helpful Hint from Heloise" by noting that appellant's proper remedy was to file a post-conviction application for a writ of habeas corpus. (13) Four years later, appellant did take that helpful hint, but he also shot himself in the foot: He included, in that application, a meritorious claim that he was entitled to an opportunity to file an out-of-time PDR because his appellate counsel was ineffective for failing to tell him that the court of appeals had affirmed his conviction. (14) Because granting appellant's request to file an out-of-time PDR revived his direct appeal, the mandate of the court of appeals was no longer final. (15) We therefore did not address any additional claims raised in appellant's habeas application because, at that point, his conviction was not final, so an Article 11.07 post-conviction remedy was no longer appropriate. We dismissed those other claims without prejudice. (16) Appellant then filed his PDR with this Court on August 13, 2013. We may not grant appellant's petition for discretionary review because he raises actual-innocence and Brady claims that were not addressed by the court of appeals. We review the decisions of the court of appeals, and if the court of appeals has not addressed and resolved a particular issue, we will not do so on discretionary review. (17) Given the record on direct appeal, appellant's current claims may only be resolved in a post-conviction habeas proceeding. We have long held that the incarceration of an innocent person is a violation of due process and that a writ of habeas corpus is a proper method to obtain relief. (18) A person who originally pled guilty to a crime may still claim actual innocence in a writ of habeas corpus. (19) But a person may not file an Article 11.07 application for habeas corpus relief until his direct appeal has been decided and his conviction is "final." (20) A conviction is "final" once the mandate has issued. (21) Because we deny appellant's petition for discretionary review, the original mandate issued by the court of appeals in 2005 is now revived and appellant's conviction is "final." (22) At this point, appellant's proper remedy is through a post-conviction writ of habeas corpus. (23) Appellant's claims are no longer "premature," and he may now file a new habeas corpus application and "redraft his claims to more clearly explain his contentions. . . ." (24) With these comments, I join in the Court's refusal of appellant's petition for discretionary review. Filed: October 30, 2013 Do Not Publish 1. Ex parte Harvin, No. AP-76914, 2013 WL 2112366, *3 n.3 (Tex. Crim. App. May 15, 2013) (not designated for publication). 2. Id. at *1. 3. Id. at *5. 4. Brady v. Maryland, 373 U.S. 83 (1963). 5. Harvin v. State, No. 02-04-294-CR, 2005 WL 2402731, *2 (Tex. App.- Fort Worth Sept. 29, 2005) (mem. op., not designated for publication). 6. Id. at *1. 7. Id. 8. Id. 9. Id. 10. Id. at *2. 11. Id. at *2. 12. The court of appeals did note that, before he was adjudicated, appellant could have filed an application for a writ of mandamus with the court of appeals asking that court to require the trial judge to timely rule on his motions. Id. at *2. 13. Id. at *2 ("At this point in time, however, his proper remedy [for his actual innocence claim] is a post-conviction application for a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure. The hearing on the article 11.07 writ allows a defendant to make the necessary record; a record which we do not sufficiently have before us."). 14. Ex parte Harvin, No. AP-76914, 2013 WL 2112366, *1, 5 (Tex. Crim. App. May 15, 2013) (not designated for publication). 15. Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App. 2008) (effect of granting the defendant's request to file an out-of-time petition for discretionary review is to hold the court of appeals's mandate temporarily dormant, not becoming final until this court disposes of the PDR). 16. Harvin, 2013 WL 2112366, at *5. 17. See Stringer v. State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2007) (this court reviews "decisions" of the courts of appeals on discretionary review; issues that the lower court did not pass upon are not ordinarily ripe for our review); Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990). 18. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996); see Tex. Code Crim. Proc. art. 11.07 (explaining the proper procedure for a post-conviction writ of habeas corpus based on innocence). 19. Ex parte Tuley, 109 S.W.3d 388, 391-92 (Tex. Crim. App. 2002). 20. Ex parte Brown, 662 S.W.2d 3 (Tex. Crim. App. 1983). 21. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000); see also Ex parte Bearman, No. WR-76823-01, 2012 WL 243693, *1 (Tex. Crim. App. Jan. 25, 2012) (not designated for publication) (Johnson, J., concurring in dismissal) ("A felony conviction becomes final when there is no appeal from the conviction or, if the conviction is appealed and affirmed, when the mandate of the appellate court issues. Applications [for habeas corpus relief] that are filed before a conviction is final must be dismissed."). 22. Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App. 2008) (when this Court denies out-of-time PDR, the conviction is final for purposes of filing an art. 11.07 writ application; the original mandate issued by the court of appeals springs back to life; "The court of appeals was not required to recall its mandate or have its clerk issue a new mandate once we refused [inmate's] PDR."). 23. Habeas corpus proceedings under Article 11.072 would have been appropriate had appellant filed his writ application while he was on community supervision. But because appellant has since been adjudicated, he must file a post-conviction writ application under Article 11.07 instead. 24. Harvin, 2013 WL 2112366, at *3 n.3.