IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-84,438-01

Ex parte TERENCE TRAMAINE ANDRUS, Applicant

ON APPLICATION FOR POST-CONVICTION

WRIT OF HABEAS CORPUS FROM CAUSE NO. 09-DCR-051034

IN THE 24OTH DISTRICT COURT

FORT BEND COUNTY

NEWELL, J., filed a dissenting opinion in which HERVEY,

RICHARDSON and WALKER, JJ., joined.

The United States Supreme Court unquestionably made mistakes

regarding this Court’s original order denying post-conviction relief in this

case.1In his dissent, Justice Alito documented a number of instances in

which the Supreme Court erred in its legal analysis and its factual

representations.2 Today, the Court does a thorough job of further

1 Andrus v. Texas, 140 S. Ct. 1875, 1886 (2020).

2

Id. at 1887–1891 (Alito, J., dissenting).
Andrus Dissenting — 2

enhancing Justice Alito’s arguments.3

But the United States Supreme Court does not care. At one point

in his dissent, Justice Alito actually suggested that this Court was required

to shout our holding by using “all caps” or bold type to prevent any

misunderstanding.4It did not matter. If the majority members of the

Supreme Court are unwilling to listen to these argument coming from

their own colleagues, I am skeptical that they will listen to this Court’s

detailed restatement of them. 

This is why I cannot join the Court’s opinion in this case. The United

States Supreme Court is not last because it is always right, they are only

right because they are always last.

5 Whatever else can be said of the

Supreme Court’s opinion, its characterization of the mitigation evidence

that Applicant’s trial attorney failed to uncover was integral to the

determination that Applicant’s attorney’s representation fell below

prevailing professional norms. This Court is not free to “re-characterize”

3 Maj. Op. at 13–25.

4

Id. at 1888 (Alito, J., dissenting) (“Perhaps the Court thinks the CCA should have

used CAPITAL LETTERS or bold type. Or maybe it should have added: “And we really mean

it!!!) (emphasis in original). 

5 See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J. concurring) (“However,

reversal by a higher court is not proof that justice is thereby better done. There is no doubt

that if there were a super-Supreme Court, a substantial portion of our reversals of state

courts would also be reversed. We are not final because we are infallible, but we are

infallible only because we are final.”)
Andrus Dissenting — 3

that evidence contrary to the United States Supreme Court’s holding. We

are bound by the United States Supreme Court’s characterization.6

Further, I disagree with the Court’s application of the standard for

prejudice in cases involving the failure to investigate possibly mitigating

evidence.7 As we recently held in Ex parte Garza, all an Applicant must

show to establish that he was prejudiced by trial counsel’s deficient

performance is a showing that there is a reasonable probability that at

least one juror would have struck a different balance between the

aggravating and mitigating evidence and voted to spare Applicant’s life.8

Based upon the Supreme Court’s characterization of the mitigation

evidence in this case, Applicant has met that standard.9 And, to the

extent that the Supreme Court addressed the standard for prejudice we

are to apply, the Supreme Court clarified that we err to regard it as a

high one.10

6 See, e.g., State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998) (“When

we decide cases involving the United States constitution, we are bound by United States

Supreme Court case law interpreting it [.]”) (citing generally Samudio v. State, 648 S.W.2d

312, 314 (Tex.Crim.App. 1983)).

7 Maj. Op. at 14.

8 Ex parte Garza, 2021 WL 1397860 at *1 (Tex. Crim. App. Apr. 14, 2021).

9 Andrus, 140 S. Ct. at 1876–1881.

10 Andrus, 140 S. Ct. at 1886 n.6 (“The concurring opinion, moreover, seemed to

assume that the prejudice inquiry here turns principally on how the fact of this case

compare to the facts in Wiggins. We note that we have never before equated what was
Andrus Dissenting — 4

I share the Court’s frustration with the United States Supreme

Court’s analysis in this case. Doubtless other courts, lower on the court

structure pyramid, have experienced similar frustration regarding

holdings from this Court. Nevertheless, they are still bound by this

Court’s holdings just as we are by the holdings of the United States

Supreme Court. Because this Court does not properly apply controlling

Supreme Court precedent in this case, I dissent.

Filed: May 19, 2021

Publish

sufficient in Wiggins with what is necessary to establish prejudice.” (comparing Wiggins v.

Smith, 539 U.S. 510, 537–538, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“[T]he mitigating

evidence in this case is stronger, and the State’s evidence in support of the death penalty

far weaker, than in Williams, where we found prejudice as the result of counsel’s failure to

investigate and present mitigating evidence”) with Williams v. Taylor, 529 U.S. 362, 399,

120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding such prejudice after applying AEDPA

deference)).