Opinion issued May 9, 2023

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-22-00065-CR

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EX PARTE EDMOND BAKER, JR., Appellant

On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Case No. 81673-CR-A

MEMORANDUM OPINION

We deny rehearing, withdraw our previous opinion and judgment of March 

28, 2023, and issue the following opinion and the related judgment in their stead. 

We dismiss the motion for en banc reconsideration as moot.1

1 Because we issue a new opinion, the motion for en banc reconsideration is moot. In 

re Wagner, 560 S.W.3d 311, 312 (Tex. App.—Houston [1st Dist.] 2018, orig. 

proceeding) (“Because we issue a new opinion in connection with denial of 

rehearing, the motion for en banc reconsideration is rendered moot.”); see also 
2

Appellant Edmond Baker, Jr., proceeding pro se, appeals from the trial court’s 

denial of his application for writ of habeas corpus.2 In two issues, appellant argues 

that his underlying conviction for stalking was rendered deficient because new 

evidence shows that he was still married to his wife at the time of conviction and 

that he was found guilty by an “all-white” jury. 

We affirm.

Background

On September 3, 2019, a jury convicted appellant of stalking and assessed a 

punishment of 10 years’ confinement, which the trial court probated and placed

appellant under community supervision for seven years and a $10,000 fine. See 

Baker v. State, No. 01-19-00694-CR, 2021 WL 785336, at *1 (Tex. App.—Houston 

[1st Dist.] Mar. 2, 2021, pet. ref’d) (mem. op., not designated for publication). 

Appellant raised two issues on appeal: (1) that the jury charge was fundamentally 

erroneous and (2) that it permitted the jury to return a non-unanimous verdict. See 

Poland v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet. 

denied) (noting that motion for en banc reconsideration rendered moot by 

withdrawal and reissuance of opinion and judgment); Brookshire Bros., Inc. v. 

Smith, 176 S.W.3d 30, 40 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) 

(supp. op. on reh’g) (noting that motion for en banc reconsideration moot when 

motion for rehearing granted and new opinion and judgment issue).

2 See TEX. CODE CRIM. PROC. art. 11.072 (providing person confined on charge of 

felony conviction who received community supervision may apply for writ of 

habeas corpus).
3

id. We affirmed the conviction, noting that appellant was not “actually harmed by 

the charge error, if any, because the instructions did not affect the basis of appellant’s 

case or his defensive theories, or deprive appellant of a valuable right.” See id. at 

*8.

Subsequently, on September 16, 2021, appellant sought a post-conviction writ 

of habeas corpus, pursuant to article 11.07 of the Texas Code of Criminal 

Procedure.

3 Appellant asserted that (1) new evidence revealed that the divorce of 

his wife had not been finalized and therefore he could not have been found to have 

stalked his ex-wife; (2) no rational juror could have found him guilty beyond a 

reasonable doubt; (3) the jury charge was improperly formulated and presented; 

(4) his constitutional rights were violated; (5) he was actually innocent of the crime 

alleged; (6) the incident described by the prosecution did not rise to a level of felony 

prosecution; and (7) juror irregularities, specifically, an all-white jury, affected his 

case.4 

The State answered the habeas application, noting that the motion for new 

trial was untimely filed and that appellant’s complaints about the indictment, jury 

3 By order dated April 5, 2022, we notified the parties that appellant’s habeas 

application would be interpreted under article 11.072 and Texas Rule of Appellate 

Procedure 31. See TEX. CODE CRIM. PROC. art. 11.072; TEX. R. APP. P. 31.

4 Appellant also filed an untimely motion for new trial, alleging the same errors he 

asserted in the habeas application. 
4

charge, and evidence at trial were not cognizable because appellant could have raised 

them on appeal.5 See TEX. CODE CRIM. PROC. art. 11.072 § 3(a). 

In accordance with the State’s recommendation, the trial court, in its order 

designating issues, requested affidavits to determine whether appellant demonstrated 

actual innocence based on newly discovered evidence and whether juror 

irregularities violated a constitutional right. 

The State also filed a Memorandum of Law in Support of State’s Original 

Answer and an affidavit from Chase Clayton, the prosecutor below, who stated that 

appellant’s claim that he was tried by an all-white jury was false and that the trial 

court can rely on its own personal recollection. The State asserted that the July 29, 

2013 final decree of divorce was presented at trial to show that appellant and the 

complainant, Kamisha Jackson, were finally divorced prior to trial. Appellant did 

not present any evidence in response to the trial court’s order designating issues.

The trial court entered findings of fact and conclusions of law on whether 

(1) appellant demonstrated that he was actually innocent based on newly discovered 

5 We agree with the State that appellant’s second through sixth issues could have been 

raised in his prior appeal and therefore these issues are waived. See TEX. CODE 

CRIM. PROC. art. 11.072 § 3(a) (stating, “An application may not be filed under this 

article if the applicant could obtain the requested relief by means of an appeal under 

Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure”); Ex parte 

Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) (stating, “We have said 

countless times that habeas corpus cannot be used as a substitute for appeal, and that 

it may not be used to bring claims that could have been brought on appeal”). Thus, 

we confine our analysis to appellant’s first and seventh issues. 
5

evidence and (2) juror irregularities resulted in appellant having a jury comprised of 

only white jurors which in turned violated appellant’s constitutional right. The trial 

court’s findings, as relevant here, state,

(4) Applicant filed an “Application for Post[-]Conviction 

Writ of Habeas Corpus” on September 16, 2021. Though 

Applicant stated that his application was “made pursuant 

to . . . Texas Code of Criminal Procedure [article] 11.07,” 

Applicant is currently on community supervision and his 

conviction is not final.

(5) This Court signed an Order Designating Issues and Setting 

Submission Date, filed for record October 1, 2021, 

allowing the parties to submit affidavits.

(6) Applicant did not submit an affidavit.

(7) Assistant Criminal District Attorney Chase Clayton, the 

first-chair prosecutor assigned to Applicant’s case, 

submitted an affidavit on November 2, 2021.

(8) Mr. Clayton testifies through his affidavit that Applicant’s 

allegation that he was tried by a jury composed entirely of 

white jurors is not true. This Court finds Mr. Clayton’s 

testimony in this regard to be credible. 

(9) This Court further finds, based on Mr. Clayton’s affidavit 

and this Court’s own recollection as permitted under 

Texas Code of Criminal Procedure article 11.072, section 

(6)(b), that Mr. Baker’s allegation regarding the 

composition of the jury in his writ application is untrue 

and not credible. 

(10) Mr. Clayton further testifies through his affidavit that 

Applicant and the complaining witness, Kamisha Jackson, 

were finally divorced prior to the trial in this case. This 

Court finds Mr. Clayton’s testimony in this regard to be 

credible.
6

(11) This Court specifically takes note of the Final Decree of 

Divorce in Cause Number 64372, In the Matter of the 

Marriage of Kamisha LaVern Baker and Edmond Lindell 

Baker, Jr., which the State submitted as State’s Exhibit 1 

attached to its memorandum of law filed November 15, 

2021. This Court finds that the Final Decree of Divorce 

relating to Applicant and Ms. Jackson’s marriage was filed 

July 29, 2013.

(12) This Court specifically takes note of testimony submitted 

by the State as State’s Exhibit 2 attached to its 

memorandum of law filed November 15, 2021, in which 

Applicant’s son, Darian Baker, testified that the Final 

Decree of Divorce showed that Applicant and Ms. Jackson 

were divorced. 

(13) This Court finds Applicant’s allegations in his writ 

application regarding his marital status to Ms. Jackson to 

be untrue and not credible. 

(14) This Court finds Applicant’s allegations in his writ 

application generally to be not credible.

Based on its findings of fact, the trial court concluded “as a matter of law that 

Applicant has not shown the deprivation of any constitutional right based on his 

allegation that he was tried by a jury composed entirely of white jurors” and “that 

Applicant has failed to show that new evidence ‘unquestionably establishes his 

innocence’ and prove[s] through clear and convincing evidence that no reasonable 

juror could have convicted Applicant in light of the new evidence.” 

The trial court further concluded that appellant’s application did not contain 

any other issues by which appellant could not have requested relief by means of an 
7

appeal under article 44.02 of the Texas Code of Criminal Procedure and Texas Rule 

of Appellate Procedure 25.2. The trial court denied habeas relief on December 30, 

2021. 

Appellant filed a notice of appeal.

Standard of Review

Generally, an appellate court reviews a trial court’s decision to grant or deny 

habeas corpus relief for an abuse of discretion. See Ex parte Montano, 451 S.W.3d 

874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). A trial court does not 

abuse its discretion if its ruling lies within the zone of reasonable disagreement. 

Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). We will uphold the 

habeas court’s judgment as long as it is correct under any theory of law applicable 

to the case. See Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per 

curiam). 

The applicant bears the burden of establishing by a preponderance of the 

evidence that the facts entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 

870 (Tex. Crim. App. 2002). In reviewing the trial court’s decision to grant or deny 

habeas corpus relief, we consider the evidence presented in the light most favorable 

to the trial court’s ruling, regardless of whether the court’s findings are implied or 

explicit, or based on affidavits or live testimony, provided they are supported by the 

record. See Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006); Ex 
8

parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no 

pet.), abrogated on other grounds by Chaidez v. United States, 568 U.S. 342, 357–

58 (2013).

The trial court is the original fact finder in habeas corpus proceedings. In 

article 11.072 habeas proceedings, such as this case, the trial court is the sole finder 

of fact. Ex parte Sanchez, 625 S.W.3d 139, 144 (Tex. Crim. App. 2021); Ex parte 

Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). “In making its determination, 

the [habeas] court may order affidavits, depositions, interrogatories, or a hearing, 

and may rely on the court’s personal recollection.” Ex parte Fassi, 388 S.W.3d 881, 

887 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (quoting TEX. CODE CRIM.

PROC. art. 11.072, § 6(b)). 

Unlike an article 11.07 case, there “is less leeway in an article 11.072 context 

to disregard the findings of a trial court.” Ex parte Garcia, 353 S.W.3d 785, 788

(Tex. Crim. App. 2011). In conducting our review, we afford almost total deference 

to the trial court’s determination of the historical facts that are supported by the 

record, especially when the factual findings are based on an evaluation of credibility

and demeanor. Montano, 451 S.W.3d at 877 (citing Guzman v. State, 955 S.W.2d 

85, 89 (Tex. Crim. App. 1997)). We afford the same amount of deference to the trial 

court’s application of law to the facts if the resolution of the ultimate questions turns 

on an evaluation of credibility and demeanor. Sandifer v. State, 233 S.W.3d 1, 2 
9

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Guzman, 955 S.W.2d at 89). 

If resolution of the ultimate questions turns on the application of legal standards, we 

review the determination de novo. Id.

Newly Discovered Evidence

In his first issue, appellant argues that new evidence shows that he and the 

complainant had not been divorced at the time of trial. 

“The term ‘newly discovered evidence’ refers to evidence that was not known 

to the applicant at the time of trial and could not be known to him even with the 

exercise of due diligence.” Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 

2006). An applicant “cannot rely upon evidence or facts that were available at the 

time of his trial, plea, or post-trial motions, such as a motion for new trial.” Id. 

(citing Ex parte Briggs, 187 S.W.3d 458, 465 (Tex. Crim. App. 2005) and Ex parte 

Tuley, 109 S.W.3d 388, 403 (Tex. Crim. App. 2002) (Price, J., concurring in denial 

of reh’g)). 

To succeed in an actual innocence claim, the applicant must show “by clear 

and convincing evidence that, despite the evidence of guilt that supports the 

conviction, no reasonable juror could have found the applicant guilty in light of the 

new evidence.” Brown, 205 S.W.3d at 545 (quoting Ex parte Tuley, 109 S.W.3d 388, 

392 (Tex. Crim. App. 2002)). This showing must overcome the presumption that 
10

the conviction is valid and it must unquestionably establish applicant’s innocence. 

See Brown, 205 S.W.3d at 545.

Here, the record shows that appellant attached to his habeas application the 

first page of an original petition for divorce dated June 7, 2021, presumably showing 

that appellant and the complainant had not been divorced at the time of trial. 

Contrary to appellant’s evidence, the State provided Clayton’s affidavit, 

which stated that appellant’s allegation that he and the complainant were still 

married was untrue. The final decree of divorce showing that appellant and the 

complainant were divorced as of July 29, 2013 was also presented to the trial court. 

Additionally, the State included trial testimony showing that appellant’s son testified 

at trial that, although the documents showed that appellant and the complainant had 

divorced, appellant continues to believe that they are not divorced.

In its tenth through thirteenth findings, the trial court found that appellant was 

divorced, that appellant’s statement otherwise was not credible, and that Clayton’s 

testimony that appellant was divorced was credible. See Ex parte Skelton, 434 

S.W.3d 709, 717 (Tex. App.—San Antonio 2014, pet. ref’d) (“The habeas court is 

the sole finder of fact in an article 11.072 habeas proceeding, and we afford almost 

total deference to its determinations of historical fact that are supported by the 

record.”). 
11

The trial court’s finding that appellant’s allegation of newly discovered 

evidence that he and the complainant were not divorced was false is supported by 

the record, and we defer to the trial court’s findings based on credibility. Id. The 

record also supports the trial court’s conclusion that appellant failed to show that 

new evidence established his innocence. Thus, we hold that appellant did not 

demonstrate that he was entitled to habeas relief based on newly-discovered 

evidence.

We overrule appellant’s first issue.

Juror Irregularities

In his seventh issue, appellant argues that his case may have been affected by 

juror irregularities. Specifically, appellant alleges that “his case may be affected 

[by] . . . irregularities” and “he had an all white jury and believes that same was a 

result of the irregularities which are the subject of the pending investigation, news 

reports, and statements made during the press conference which occurred on or about 

September 7, 2021.” In his reply to the State’s response to the habeas petition, 

appellant argued that the jury was not impartial and that “Blacks were excluded from 

his jury pool, which resulted in prejudice to him.” 

The Sixth Amendment to the Constitution of the United States guarantees a 

criminal defendant an impartial jury selected from sources reflecting a fair crosssection of the community. See Taylor v. Louisiana, 419 U.S. 522, 526, 530–37 
12

(1975). Although venire panels must represent a fair cross-section of the 

community, there is no requirement that the petit jury chosen for a particular case 

“mirror the community and reflect the various distinctive groups in the population.” 

Gray v. State, 233 S.W.3d 295, 300 (Tex. Crim. App. 2007) (quoting Taylor, 419 

U.S. at 538)).

In order for a defendant to establish a prima facie violation of the fair-crosssection requirement, the defendant must show that: (1) the group alleged to be 

excluded is a “distinctive” group in the community; (2) the representation of this 

group in venires from which juries are selected is not fair and reasonable in relation 

to the number of such persons in the community; and (3) this underrepresentation is 

due to the systematic exclusion of the group in the jury selection process. Berghuis 

v. Smith, 559 U.S. 314, 327 (2010); Duren v. Missouri, 439 U.S. 357, 364 (1979).

Here, appellant made no argument regarding the Berghuis second and third 

prongs and therefore did not make a prima facie case that he was denied fair 

representation in the venire panel. Instead, appellant alleged that he had an all-white 

jury and that “Blacks were excluded from his jury pool.” Although appellant alleged 

juror irregularities, appellant provided no evidence to the trial court that any juror 

irregularities affected his case. See Richardson, 70 S.W.3d at 870 (applicant bears 

burden of proving, by preponderance of evidence, facts that would entitle him to 

relief).
13

Notwithstanding the lack of evidence, the State presented Clayton’s affidavit,

who testified that appellant’s allegation that an all-white jury considered the case 

was false. In the trial court’s eighth and ninth findings, the trial court found that the 

State was credible while appellant was not and that based on Clayton’s affidavit and 

its own recollection, appellant’s allegation regarding the composition of the jury was 

untrue and not credible. See Ex parte Fassi, 388 S.W.3d 881, 888 (Tex. App.—

Houston [14th Dist.] 2012, no pet.) (“[T]he habeas court was free to disbelieve 

appellant’s self-serving testimony.”); TEX. CODE CRIM. PROC. art. 11.072 § 6(b)

(permitting court to rely on its personal recollection). 

The trial court’s findings that appellant’s allegation that the jury was 

composed entirely of white jurors was false is supported by the record, and we defer 

to the trial court’s findings based on credibility. Id. The record also supports the trial 

court’s conclusion that appellant did not show a deprivation of any constitutional 

right based on his allegation that he was tried by a jury composed entirely of white 

jurors. Accordingly, based on the record before the trial court, we hold that appellant

has not demonstrated that the alleged jury irregularities entitled him to habeas relief. 

We overrule appellant’s seventh issue.
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Conclusion

We affirm the trial court’s order that denied appellant’s application for writ 

habeas corpus. 

Terry Adams

Chief Justice

Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.

Do not publish. TEX. R. APP. P. 47.2(b).