IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

EX PARTE § 

§ 

§ NO. WR-81,947-02

§ 

STEVE HERBERT SPECKMAN § 

ARTICLE 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN 

CAUSE NUMBER C-372-010662-0861282-A IN THE 372ND JUDICIAL 

DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE SCOTT 

WISCH AND HONORABLE GEORGE GALLAGHER, JUDGES PRESIDING.

§ § §

RESPONDENT’S BRIEF

§ § §

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney

Chief, Post-Conviction

ANDRÉA JACOBS, Assistant 

Criminal District Attorney

401 W. Belknap

Oral Argument is Fort Worth, Texas 76196-0201

Requested (817) 884-1687

FAX (817) 884-1672

State Bar No. 24037596

ccaappellatealerts@tarrantcountytx.gov

WR-81,947-02

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/29/2016 3:55:47 PM

Accepted 12/30/2016 8:56:18 AM

ABEL ACOSTA

CLERK

 FILED COURT OF CRIMINAL APPEALS 12/30/2016 ABEL ACOSTA, CLERK 
IDENTITY OF PARTIES AND COUNSEL

For convenience of the Court, the State provides the following list of all trial 

and appellate counsel and current addresses (if known):

Applicant:

Original Plea Proceedings Hon. Michael Logan Ware

300 Burnett Street, Suite 160

Fort Worth, Texas 76102

Adjudication Proceedings Hon. Mark Scott

3000 E. Loop 820

Fort Worth, Texas 76112

Post-Conviction Writ Pro Se

Post-Conviction Writ Brief Hon. Jim Gibson

909 Throckmorton Street

Fort Worth, TX 76102 

Respondent:

Original Plea Proceedings Hon. Tim Curry, Crim. Dist. Attorney

Hon. Theresa E. Austin

401 W. Belknap 

Fort Worth, Texas 76196

Hon. Alton Estrada

2231 Ridge Rd, Suite 101

Rockwall, Texas 75087

Adjudication Proceedings Hon. Joe Shannon, Jr.

Hon. Sheila Wynn

401 W. Belknap 

Fort Worth, Texas 76196

Post-Conviction Writ/Brief Hon. Sharen Wilson, Crim. Dist. Attorney

Hon. Andréa Jacobs

401 W. Belknap 

Fort Worth, Texas 76196

i
Court:

Original Plea Proceedings Hon. Tom Crum

Adjudication Proceedings Hon. Scott Wisch

Post-Conviction Writ/Brief Hon. George Gallagher

Hon. Scott Wisch

372nd Judicial District Court

401 W. Belknap

Fort Worth, Texas 76196

ii
TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL . . . . . i

INDEX OF AUTHORITIES . . . . . . . . vi

STATEMENT OF THE CASE . . . . . . . 2

STATEMENT REGARDING ORAL ARGUMENT . . . . 3

RESPONSES TO REQUESTED ISSUES . . . . . . 4

There are several alternatives other than dismissal available to 

an applicant who wishes more time to litigate his application.

This Court should adopt a rebuttable presumption that late stage 

motions for dismissal are unreasonable because there are 

several alternatives to dismissal and a rebuttable presumption 

provides a benefit to all parties involved. 

There are several factors that this Court should consider when 

determining whether an applicant has rebutted the presumption 

that his late stage motion for dismissal is unreasonable.

Because Applicant’s motion to dismiss provides this Court with 

no specific facts or authority to support his motion, this Court 

should deny the motion and proceed to disposition on 

Applicant’s 11.07 proceeding even if this Court does not adopt 

a rebuttable presumption. 

STATEMENT OF FACTS . . . . . . . . 5

SUMMARY OF THE ARGUMENT .. . . . . . 6

ARGUMENTS AND AUTHORITIES . . . . . . 7

iii
Question: What alternatives, other than a dismissal, are 

available to applicants who wish to dismiss their 

applications?

I. There are several alternatives other than dismissal 

available to an applicant who wishes more time to litigate 

his application. . . . . . . . 7

Question: Whether this Court should adopt a rebuttable 

presumption that a motion to dismiss an Article 11.07 

application is unreasonable if the motion is filed in this 

Court or a trial court after a trial court has factually 

developed the record and made findings of fact and 

conclusions of law?

II. This Court should adopt a rebuttable presumption that 

late stage motions for dismissal are unreasonable because 

there are several alternatives to dismissal and a rebuttable 

presumption benefits all parties involved. . . . . 9

1. There is no statutory authority limiting motions to 

dismiss. . . . . . . . 9

2. Because there are several alternatives to 

dismissing an application, there is no need to 

have an absolute right to a late stage dismissal. . 12

3. Adopting a rebuttable presumption for late stage 

motions to dismiss is consistent with society’s 

interest in the finality of convictions and 

preservation of judicial resources because it would 

limit unnecessary dismissals, encourage finality of 

the conviction, and eliminate duplicitous litigation. 15

4. Adopting a rebuttable presumption for late stage 

motions to dismiss provides an applicant with 

beneficial guidance as to what bases a motion 

could be granted. . . . . . . 15

iv
Question: If this Court should adopt such a presumption, 

what factors this Court should consider when determining 

if an applicant has rebutted the presumption?

III. There are several factors that this Court should consider 

when determining whether an applicant has rebutted the 

presumption that his late stage motion for dismissal is 

unreasonable. . . . . . . . 17

Question: Should Applicant’s motion to dismiss be granted?

IV. Because Applicant’s motion to dismiss provides this 

Court with no specific facts or authority to support his 

motion, this Court should deny the motion and proceed to 

disposition on Applicant’s 11.07 proceeding even if this 

Court does not adopt a rebuttable presumption. . . 20

CONCLUSION. . . . . . . . . . 21

PRAYER. . . . . . . . . . . 22

CERTIFICATE OF SERVICE . . . . . . . 23

CERTIFICATE OF COMPLIANCE . . . . . . 23

v
INDEX OF AUTHORITIES

CASES PAGE

United States Supreme Court

Rhines v. Weber, 

544 U.S. 269, 125 S.Ct. 1528 (2005). . . . . 18-19

Texas Court of Criminal Appeals

Ex parte Adams, 

No. WR-69,107-03, 2010 WL 360452 

(Tex. Crim. App. Jan. 27, 2010) 

(not designated for publication), 

dism’d (Tex. Crim. App. Aug. 25, 2010) (White Card). . 12

Ex parte Aleman, 

408 S.W.2d 234 (Tex. Crim. App. 1966). . . . 12

Ex parte Berry, 

No. WR-77,867-01, 2012 WL 3600309

(Tex. Crim. App. Aug. 22, 2012)

(not designated for publication), 

dism’d (Tex. Crim. App. Aug. 21, 2013) (White Card). . 12

Ex parte Galvan, 

770 S.W.2d 822 (Tex. Crim. App. 1989). . . . 13-14

Ex parte Hereford, 

No. WR-65,467-01, 2006 WL 3086407 

(Tex. Crim. App. Nov. 1, 2006) 

(not designated for publication). . . . . 12-13

Ex parte Kerr, 

64 S.W.3d 414 (Tex. Crim. App. 2002). . . . 27

vi
Ex parte Luna, 

Nos. WR-67,880-01, WR-67,880-02, 

2010 WL 4816301 (Tex. Crim. App. Nov. 24, 2010) 

(not designated for publication). . . . . 12

Ex parte Masterson, 

No. AP-75,664, 2007 WL 1138874 

(Tex. Crim. App. Apr. 18, 2007) 

(not designated for publication). . . . . 12

Ex parte Medina, 

361 S.W.3d 633 (Tex. Crim. App. 2011). . . . 14

Ex parte Osei, 

Nos. WR-76,669-01-03, 2012 WL 5878007 

(Tex. Crim. App. Nov. 21, 2012)

(not designated for publication), relief granted, 

2013 WL 5275917 (Tex. Crim. App. Sep. 18, 2013) 

(not designated for publication). . . . . 13

Ex parte Pena, 

484 S.W.3d 428 (Tex. Crim. App. 2016). . . . 7, 13

Ex parte Perez, 

398 S.W.3d 206 (Tex. Crim. App. 2013). . . . 13,14,18

Ex parte Pointer, 

492 S.W.3d 318 (Tex. Crim. App. 2016). . . . 15

Ex parte Rains, 

555 S.W.2d 478 (Tex. Crim. App. 1977). . . . 14

Ex parte Rocha, 

482 S.W.2d 169 (Tex. Crim. App. 1972). . . . 14

Ex parte Rowland, 

230 S.W.2d 818 (Tex. Crim. App. 1950). . . . 12

Ex parte Saenz, 

491 S.W.3d 819 (Tex. Crim. App. 2016). . . . 7, 13

vii
Ex parte Sheid, 

No. WR-63,130-01, 2006 WL 833167 

(Tex. Crim. App. Mar. 29, 2006) 

(not designated for publication). . . . . 13

Ex parte Simms, 

WR-85,238-01, No. C-297-010666-1384786-A 

(Tex. Crim. App. Jul. 26, 2016) (White Card). . . 8

Ex parte Torres, 

943 S.W.2d 469 (Tex. Crim. App. 1997). . . . 13

 

Ex parte Whisenant, 

443 S.W.3d 930 (Tex. Crim. App. 2014). . . . 7

Ex parte White, 

No. WR-69,428-01, 2008 WL 2673400 

(Tex. Crim. App. Jul. 2, 2008) 

(not designated for publication). . . . . 12

Ex parte Young, 

479 S.W.2d 45 (Tex. Crim. App. 1972). . . . 14

Texas Courts of Appeals

Ex parte Moore, 

No. 2-05-464-CR, 2007 WL 1952379 

(Tex. App. – Fort Worth Jul. 5, 2007, no pet.)

(not designated for publication). . . . . 9

Other Jurisdictions

Alexander v. Warden, 

No. CV970395939S, 2000 WL 486958 

(Conn. Apr. 11, 2000). . . . . . . 18

Clark v. State, 

491 So.2d 545 (Fla. 1986). . . . . . 11, 18

viii
Mason v. Bauman, 

No. 2:12-CV-15655, 2014 WL 4678051 

(E.D. Mich. Sept. 18, 2014) 

(not designated for publication). . . . . 17

Melendez v. Comm’r of Correction, 

141 Conn. App. 836, 62 A.3d. 629 (Conn. 2013). . . 11

Parker v. State, 

308 Ark. 187, 823 S.W.2d 877 (Ark. 1992). . . . 11

State v. McMillin, 

783 S.W.2d 82 (Mo. 1990), 

abrogated by Morgan v. Illinois, 

504 U.S. 719, 112 S.Ct. 222, 119 L.Ed.2d 492 (1992). . 12

CONSTITUTIONAL PROVISIONS, STATUTES, RULES

Texas

Proposed Tex. R. App. P. 73.7. . . . . . . 7, 13

Tex. Code Crim. Proc. art. 1.08. . . . . . 9

Tex. Code Crim. Proc. art. 11.07. . . . . . 9

Tex. Code Crim. Proc. art. 11.07, §4(a). . . . . 8, 17

Tex. Code Crim. Proc. art. 11.07, §4(a)(1). . . . . 8

Tex. Code Crim. Proc. art. 11.071 §5(a). . . . . 10

Tex. Code Crim. Proc. art. 11.072 §6(a). . . . . 9

Tex. Const. art. I, §12. . . . . . . . 9, 14

Tex. Gov’t Code §82.061(a). . . . . . . 16

Tex. Gov’t Code §498.0045(a). . . . . . . 16

ix
Tex. R. App. P. 39.1. . . . . . . . 3

Tex. R. App. P. 42.2(a). . . . . . . . 10

Tex. R. App. P. 42.2(b). . . . . . . . 10

Tex. R. App. P. 73. . . . . . . . 9

Other Jurisdictions

Alaska R. Crim. P. 35.1(1). . . . . . . 11

Conn. Gen. Stat. Ann. §52-80. . . . . . . 11

Fla. R. App. P. Rule 9.350(b). . . . . . . 11

Fed. R. Civ. P. 41(a). . . . . . . . 10, 17

Fed. R. Civ. P. 41(a)(1)(A). . . . . . . 10

Fed. R. Civ. P. 41(a)(1)(B). . . . . . . 10

Fed. R. Civ. P. 41(a)(2). . . . . . . . 11

In. St. Postconv. Rule PC 1, §4(c). . . . . . 11

Or. Rev. Stat. Ann. §138.610. . . . . . . 11

Pa. R. Crim. P. 905. . . . . . . . 11

Tenn. Code Ann. §40-30-109. . . . . . . 11

x
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

EX PARTE §

§

§ NO. WR-81,947-02

§

STEVE HERBERT SPECKMAN §

ARTICLE 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN 

CAUSE NUMBER C-372-010662-0861282-A IN THE 372ND JUDICIAL 

DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE SCOTT 

WISCH AND HONORABLE GEORGE GALLAGHER, JUDGES PRESIDING.

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, the State of Texas (“State”), Respondent, by and through 

her Tarrant County Criminal District Attorney’s Office, and files this Respondent’s 

Brief pursuant to the Texas Court of Criminal Appeals’ Order dated September 14, 

2016, and in support shows the following:

1
STATEMENT OF THE CASE

Nature of the case. The proceeding is an article 11.07 application for writ of 

habeas corpus. 

Course of Proceedings/Trial Court Disposition. On July 12, 2004, Steve 

Herbert Speckman (“Applicant”) pled guilty, pursuant to a plea agreement, to the 

first degree felony offense of aggravated sexual assault of a child under 14 years of 

age. [CR 167, 172] In accordance with the plea agreement, the trial court placed 

Applicant on deferred adjudication for a period of ten years. [CR 172]

On May 29, 2013, Applicant pled true to the motion to adjudicate and the 

trial court adjudicated him guilty and sentenced him to thirty years confinement in 

the Texas Department of Criminal Justice – Institutional Division. [CR 184]

The Seventh Court of Appeals affirmed the trial court’s judgment on May 

23, 2014. See Speckman v. State, Nos. 07-13-00232-CR, 07-13-00233-CR, 2014 

WL 2191997 (Tex. App. – Amarillo May 23, 2014, no pet.) (not designated for 

publication).

On December 10, 2015, Applicant filed his application for writ of habeas 

corpus. [CR 2] On June 7, 2016, the trial court recommended that Applicant’s 

application be denied. [CR 165] On August 15, 2016, Applicant moved to dismiss 

his application. See Order, Dated September 14, 2016.

2
STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure, the State 

submits that oral argument is necessary. The issues before this Court have not 

been authoritatively decided and are heavily based on general writ procedures, 

practice, and protocol, and not legal precedent. Therefore, this Court’s decisional 

process would be significantly aided by oral argument by the parties. 

3
RESPONSES TO REQUESTED ISSUES

There are several alternatives other than dismissal available to an 

applicant who wishes more time to litigate his application.

This Court should adopt a rebuttable presumption that late stage 

motions for dismissal are unreasonable because there are several 

alternatives to dismissal and a rebuttable presumption provides a 

benefit to all parties involved. 

There are several factors that this Court should consider when 

determining whether an applicant has rebutted the presumption that 

his late stage motion for dismissal is unreasonable.

Because Applicant’s motion to dismiss provides this Court with no 

specific facts or authority to support his motion, this Court should 

deny the motion and proceed to disposition on Applicant’s 11.07 

proceeding even if this Court does not adopt a rebuttable presumption. 

4
STATEMENT OF FACTS

On December 10, 2015, Applicant filed his application for writ of habeas 

corpus. [CR 2] On January 4, 2016, the trial court ordered an affidavit from 

Applicant’s trial counsel, Hon. Michael Ware, addressing Applicant’s ineffective 

assistance of counsel claims. [CR 97-98] On February 26, 2016, Hon. Ware filed 

his affidavit. [CR 111]

On May 13, 2016, the State filed its proposed findings of fact and 

conclusions of law. [CR 134] On June 7, 2016, the trial court adopted the State’s 

proposed findings of fact and conclusions of law and recommended the application 

be denied. [CR 165]

On June 24, 2016, Applicant filed a letter objecting to the trial court’s order. 

[1 Supp. CR 2] On July 12, 2016, Applicant filed motions to reopen the habeas 

proceeding and requested a hearing. [2 Supp. CR 2, 35] On July 21, 2016, 

Applicant filed supplemental grounds for relief. [3 Supp. CR 2] Applicant’s 

supplemental grounds were not on the proper form. [3 Supp. CR 2-3]

On August 15, 2016, Applicant moved to dismiss his application because it 

was “pled improperly,” “real issues were not developed,” and “the issues have 

been misconstrued.” See Order, Dated September 14, 2016, p. 2.

5
SUMMARY OF THE ARGUMENT

Motions to dismiss filed after the trial court has made its recommendations 

and transmitted the Chapter 11 proceeding to this Court are generally unnecessary 

and merely delay tactics. Instead of filing a motion to dismiss, an applicant may 

amend and supplement his application up until the time this Court disposes of the 

application. In addition, an applicant may request that this Court hold or stay the 

proceeding for a period of time. Therefore, this Court should adopt a rebuttable 

presumption that a motion to dismiss filed at such a late stage is unreasonable. 

While there are several factors that this Court should consider when 

adopting a rebuttable presumption, Applicant’s motion to dismiss should be denied 

because it fails to present any specific facts or authority to support it nor does 

Applicant give any reason as to why he was not able to properly litigate his 

application before it was forwarded to this Court. 

This Court should adopt a rebuttable presumption and deny Applicant’s 

motion to dismiss as unreasonable.

6
ARGUMENTS AND AUTHORITIES

Question: What alternatives, other than a dismissal, are available to 

applicants who wish to dismiss their applications?1

I. There are several alternatives other than dismissal available to an 

applicant who wishes more time to litigate his application.

There are several alternatives available for an applicant who wishes to 

dismiss his application after it has been forwarded to this Court, depending on the 

reasons he wishes dismissal. First, a motion for remand is unnecessary.

2

 An 

applicant may still file additional materials in the trial court even though the 

proceeding has been transferred to this Court because any materials filed with the 

District Clerk will be “immediately forwarded to this Court as a supplemental 

record.”3

 Second, if an applicant is only concerned that the evidentiary record is 

not sufficient, he may move to stay the proceedings so that he can file evidence in 

the trial court.4

 Third, if he is concerned that there are additional claims that he 

wants to present, he may file a supplemental or amended application in the trial 

court before this Court has disposed of the pending application.5

 Finally, if the 

applicant wants to have this Court refrain from disposing of the application 

immediately, so that he may decide whether to supplement or amend, he may move 

1 To reduce redundancy, this Court’s third question will be answered first.

2 See Ex parte Whisenant, 443 S.W.3d 930, 933 (Tex. Crim. App. 2014). 

3 Id.

4 See Ex parte Pena, 484 S.W.3d 428, 431 (Tex. Crim. App. 2016); Proposed Tex. 

R. App. P. 73.7, effective February 1, 2017 (Misc. Docket No. 16-005).

5 See Ex parte Saenz, 491 S.W.3d 819, 824 (Tex. Crim. App. 2016).

7

 
to hold or stay the proceedings for a reasonable amount of time (60-90 days).6

 

In an interesting quirk in the statute may also allow an applicant to later 

overcome the subsequent writ bar if “new” claims are the basis of his motion to 

dismiss. According to section 4 of article 11.07 of the Texas Code of Criminal 

Procedure, it is the “disposition” of the first application that invokes the subsequent 

writ bar.7

 But, an applicant may overcome the subsequent writ bar by raising 

claims that could not have been raised on or before the day the application was 

“filed.”8

 So, in theory, any claims discovered after filing that could not have been 

discovered through reasonable diligence before filing could be raised, e.g. an

ineffective assistance of counsel claim arising from new information unknown to 

applicant, and undiscoverable by him, before receiving a habeas court-ordered 

affidavit from trial counsel. However, a better practice would still be to 

supplement the application with the new ineffective assistance of counsel claim 

and litigate it in that first application.

Therefore, there are several alternatives to moving for dismissal after the 

trial court has factually developed the record and made findings of fact and 

conclusions of law (“a late stage motion for dismissal”). 

6 See, e.g., Ex parte Wisdom Simms, WR-85,238-01, No. C-297-010666-1384786-

A (Tex. Crim. App. Jul. 26, 2016) (White Card).

7 Tex. Code Crim. Proc. art. 11.07, §4(a).

8 Tex. Code Crim. Proc. art. 11.07, §4(a)(1).

8

 
Question: Whether this Court should adopt a rebuttable presumption that a 

motion to dismiss an Article 11.07 application is unreasonable if 

the motion is filed in this Court or a trial court after a trial court 

has factually developed the record and made findings of fact and 

conclusions of law?

II. This Court should adopt a rebuttable presumption that late stage 

motions for dismissal are unreasonable because there are several 

alternatives to dismissal and a rebuttable presumption provides a 

benefit to all parties involved.

1. There is no statutory authority limiting motions to dismiss.

As this Court is aware, there is no statutory provision requiring a rebuttable 

presumption when an applicant wants to dismiss his application.9

 But, there is no 

statutory or constitutional provision allowing an applicant to an absolute late stage 

dismissal either.10 Therefore, a survey into other statutory provisions may be 

helpful. 

While article 11.07 is silent as to voluntary dismissal, article 11.072 does not 

allow the trial court to dismiss an application after the State has responded.11 And 

9

 See Tex. Code Crim. Proc. art. 11.07; Tex. R. App. P. 73.

10 Id.; see also Tex. Const. art. I, §12 (“The writ of habeas corpus is a writ of right, 

and shall never be suspended.”); Tex. Code Crim. Proc. art. 1.08 (“The writ of 

habeas corpus is a writ of right and shall never be suspended.”).

11 See Tex. Code Crim. Proc. art. 11.072 §6(a) (“Not later than the 60th day after 

the day on which the state’s answer is filed, the trial court shall enter a written 

order granting or denying the relief sought in the application.”) (emphasis added); 

Ex parte Moore, No. 2-05-464-CR, 2007 WL 1952379 (Tex. App. – Fort Worth 

Jul. 5, 2007, no pet.) (not designated for publication) (trial court did not abuse 

discretion in denying motion to dismiss because the trial court has no discretion to 

dismiss an article 11.072 application for writ of habeas corpus after the State has 

filed an answer).

9

 
article 11.071 requires that all applications filed after the initial application is filed 

be treated like subsequent applications regardless of the disposition of the first 

one.

12 Thus, it would appear that applicants filing article 11.071 or 11.072 

applications are expressly prohibited from dismissing them without prejudice.

For direct appeals, the Texas Rules of Appellate Procedure allow for 

dismissal before the appellate court’s decision.13 And, once the appellate court has 

rendered its decision, a motion to dismiss may be granted if all parties agree.14 

Direct appeals, though, are different because an appellant cannot refile his appeal 

at a later date after dismissal so such a dismissal is, by nature, with prejudice.

In federal habeas litigation, there is a specific rule. Rule 41 of the Federal 

Rules of Civil Procedure allows a petitioner to dismiss his action without prejudice 

and without a court order (1) before the respondent has served the petitioner with 

an answer or motion for summary or judgment or (2) if all parties agree, unless the 

petitioner has previously dismissed any federal or state court action “based on or 

including the same claim.”15 If the party had previously dismissed a related action, 

the “notice of dismissal operates as an adjudication on the merits.”16 And, all other 

12 See Tex. Code Crim. Proc. art. 11.071 §5(a) (“If a subsequent application for a 

writ of habeas corpus is filed after filing an initial application, a court may not 

consider the merits ...”) (emphasis added).

13 Tex. R. App. P. 42.2(a).

14 Tex. R. App. P. 42.2(b).

15 Fed. R. Civ. P. 41(a)(1)(A), (B) (emphasis added).

16 Fed. R. Civ. P. 41(a)(1)(B).

10

 
requests may be granted by court order with or without prejudice.17 

Finally, some other states, like the federal court, have statutes or rules 

prescribing when a motion to dismiss may be granted. Some jurisdictions give a 

set amount of time where the proceeding may be dismissed as a matter of right.18 

Some jurisdictions allow for dismissal at any time prior to disposition with leave of 

court.19 And some jurisdictions do not allow for voluntary dismissal of a petition 

without prejudice as it runs contrary to their respective subsequent bars.20 

17 Fed. R. Civ. P. 41(a)(2).

18 See Conn. Gen. Stat. Ann. §52-80 (Connecticut: “The plaintiff may dismiss any 

action ... before the commencement of a hearing on the merits. After the 

commencement of a hearing ... the plaintiff may dismiss such action ... only by 

leave of court for cause shown.”) (See Melendez v. Comm’r of Correction, 141 

Conn. App. 836, 842-43, 62 A.3d. 629, 633 (Conn. 2013)); Fla. R. App. P. Rule 

9.350(b) (Florida: “A proceeding ... may be dismissed before a decision on the 

merits by filing a notice of dismissal...”) (See Clark v. State, 491 So.2d 545, 547 

(Fla. 1986)) (A movant is entitled to dismiss his post-conviction Rule 3.850 motion 

before a decision on the merits unless the State shows prejudice)); Tenn. Code 

Ann. §40-30-109 (Tennessee: “The petitioner may dismiss a petition at any time 

prior to the hearing without prejudice to any rights to refile, but the withdrawn

petition shall not toll the statute of limitations set forth in §40-30-102”).

19 See Alaska R. Crim. P. 35.1(1) (Alaska: “At any time prior to entry of judgment 

the court may grant leave to dismiss the application.”); In. St. Postconv. Rule PC 1, 

§4(c) (Indiana: “At any time prior to entry of judgment the court may grant leave 

to dismiss the petition.”); Pa. R. Crim. P. 905 (Pennsylvania, “The judge may grant 

leave to amend or dismiss a petition for post-conviction collateral relief at any 

time.”); Or. Rev. Stat. Ann. §138.610 (Oregon: “The court may grant leave, at any 

time prior to entry of judgment, to dismiss the petition.”).

20 See Parker v. State, 308 Ark. 187, 187-88, 823 S.W.2d 877 (Ark. 1992) 

(Arkansas: “If this court were to permit a petitioner to dismiss a petition and 

submit another as soon as the state through its response pointed out deficiencies in 

the petition, it would be unfair to the state and open the door to an unending 

succession of petitions. Due process does not require this court to provide 

11

 
In short, while there is not a statutory provision directly addressing the issue 

with regard to Texas habeas practice, limiting a party’s right to a voluntary 

dismissal after a certain point is common in other Texas practices and other 

jurisdictions. 

2. Because there are several alternatives to dismissing an application, there is 

no need to have an absolute right to a late stage dismissal.

This Court has a history of dismissing applications on applicants’ own 

motions.

21 However, in most situations, dismissal is unnecessary. As explained 

unlimited opportunities to present post-conviction claims or prevent this court from 

requiring a petitioner to raise grounds for relief in the original opinion.”) (citation 

omitted); State v. McMillin, 783 S.W.2d 82, 90 (Mo. 1990), abrogated by Morgan 

v. Illinois, 504 U.S. 719, 112 S.Ct. 222, 119 L.Ed.2d 492 (1992) (Missouri: the 

civil rule that allows for dismissal without prejudice “conflicts with the clear 

[successive motion prohibition] expressed in Rule 29.15(k) and does not apply in a 

Rule 29.15 proceeding.”).

21 See Ex parte Aleman, 408 S.W.2d 234, 234 (Tex. Crim. App. 1966) (original 

habeas proceeding); Ex parte Rowland, 230 S.W.2d 818 (Tex. Crim. App. 1950) 

(motion to dismiss writ of habeas corpus); see also Ex parte Berry, No. WR77,867-01, 2012 WL 3600309, *1 (Tex. Crim. App. Aug. 22, 2012) (not 

designated for publication), dism’d (Tex. Crim. App. Aug. 21, 2013) (White Card) 

(dismissed on attorney’s motion to dismiss application); Ex parte Luna, Nos. WR67,880-01, WR-67,880-02, 2010 WL 4816301, *1 (Tex. Crim. App. Nov. 24, 

2010) (not designated for publication) (on applicant’s motions to dismiss the 

application three years after this Court initially denied the applications without 

written order but withdrew the dispositions on applicant’s motions to abate); Ex 

parte Adams, No. WR-69,107-03, 2010 WL 360452 (Tex. Crim. App. Jan. 27, 

2010) (not designated for publication), dism’d (Tex. Crim. App. Aug. 25, 2010) 

(White Card) (dismissed on attorney’s motion to dismiss application); Ex parte 

White, No. WR-69,428-01, 2008 WL 2673400, *1 (Tex. Crim. App. Jul. 2, 2008) 

(not designated for publication) (request for dismissal post remand for affidavits 

and trial court’s findings of fact); Ex parte Masterson, No. AP-75,664, 2007 WL 

12

 
above, an applicant may supplement or amend his application until disposition in 

this Court.22 Other reasons an applicant would want to dismiss his application are 

that (1) he does not have the evidence he needs to prevail on his application or (2) 

he will not prevail on his application and does not want to be barred in the future 

from raising different claims. However, with some exception, these reasons should 

not be sufficient. 

The Legislature intended that an applicant be required “to raise all of his 

claims at once” in his initial proceeding.23 And, there is no deadline for him to 

initiate that proceeding. As this Court explained, 

1138874, *1 (Tex. Crim. App. Apr. 18, 2007) (not designated for publication) 

(request for dismissal filed in the trial court prior to this Court receiving the 

application); Ex parte Hereford, No. WR-65,467-01, 2006 WL 3086407, *1 (Tex. 

Crim. App. Nov. 1, 2006) (not designated for publication) (request for dismissal 

post remand for trial court’s findings of fact); Ex parte Sheid, No. WR-63,130-01, 

2006 WL 833167, *1 (Tex. Crim. App. Mar. 29, 2006) (not designated for 

publication) (“Because the type of relief that Applicant requests cannot be 

provided, we construe Applicant’s “corrected clarification of relief requested” as a 

motion to dismiss his writ application. Applicant’s writ is therefore dismissed 

without prejudice.”); but see Ex parte Osei, Nos. WR-76,669-01, WR-76,669-02, 

WR-76,669-03, 2012 WL 5878007 (Tex. Crim. App. Nov. 21, 2012) (not 

designated for publication) (remanded back for determination regarding what 

claims applicant wanted to pursue after applicant’s retained attorney called this 

Court stating that applicant wanted to dismiss his application though no motions 

had been filed), relief granted, 2013 WL 5275917 (Tex. Crim. App. Sep. 18, 2013) 

(not designated for publication). The State cites these unpublished cases as 

examples, recognizing that they are non-binding and non-precedential. See, e.g., 

Ex parte Perez, 398 S.W.3d 206, 215 n. 10 (Tex. Crim. App. 2013). 22 See Ex parte Pena, 484 S.W.3d at 431; Proposed Tex. R. App. P. 73.7, effective 

February 1, 2017 (Misc. Docket No. 16-005); Ex parte Saenz, 491 S.W.3d at 824.

23 Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997); see also Ex parte 

Saenz, 491 S.W.3d at 824.

13

 
This Court has consistently and properly held that we have no desire 

to impose upon defendants the requirement that claims for relief be 

asserted within a specified period of time. Ex parte Rocha, 482 

S.W.2d 169 (Tex. Crim. App. 1972); Ex parte Young, 479 S.W.2d 45 

(Tex. Crim. App. 1972). Such a rule would be arbitrary and probably 

unconstitutional. Art. I, §12, Tex. Const.24

Therefore, an applicant should be required to fully investigate his claims prior to 

the filing of his application as he is not bound by time and he only gets one chance. 

And, even though he is not required to plead “evidence” in his original application, 

he still has the burden to prove his claims.25 Thus, allowing an applicant to 

voluntarily dismiss his application after the record has been developed and the trial 

court has recommended denial because he may lose defeats the Legislature’s intent 

that an applicant be given only one opportunity to make his claims.

In short, because applicant is given one chance to raise his claims, there is 

no deadline for when he must raise those claims, and he may still supplement the 

record or amend his application up until disposition, a late stage dismissal is 

generally unnecessary and should be presumed unreasonable. 

24 Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989); see also Ex 

parte Perez, 398 S.W.3d at 219 (reaffirming “no desire to impose” a time deadline 

on an applicant’s claims). 

25 Ex parte Medina, 361 S.W.3d 633, 639 (Tex. Crim. App. 2011); Ex parte Rains, 

555 S.W.2d 478, 481 (Tex. Crim. App. 1977). 

14

 
3. Adopting a rebuttable presumption for late stage motions to dismiss is 

consistent with society’s interest in the finality of convictions and 

preservation of judicial resources because it would limit unnecessary 

dismissals, encourage finality of the conviction, and eliminate duplicitous 

litigation.

“The State has a legitimate interest in the maintaining [of] the finality of” its 

convictions.26 And allowing an applicant to later dismiss his 11.07 application for 

writ of habeas corpus after it has been fully litigated for no other reason than he is 

going to lose undermines that interest. In addition, allowing an applicant to re-file 

an application later and essentially “start over” the proceeding after the issues have 

been fully litigated is a waste of judicial resources, especially in light of the fact 

that an applicant may liberally amend or supplement the proceeding until this 

Court makes its decision. Adopting a rebuttable presumption would protect 

society’s interest in finality, while providing flexibility for the Court to allow 

dismissals in cases where that interest may be outweighed.

4. Adopting a rebuttable presumption for late stage motions to dismiss 

provides an applicant with beneficial guidance as to what bases a motion 

could be granted.

The State submits that adopting a rebuttable presumption would provide 

beneficial guidance to applicants. Whether there is a rebuttable presumption, this 

Court has the authority to deny motions to dismiss if it finds that granting the 

26 Ex parte Pointer, 492 S.W.3d 318, 325 (Tex. Crim. App. 2016) (Yeary, J., 

concurring).

15

 
motion is not in the best interest of the proceeding. In addition, this Court has 

contempt power against attorneys in extreme cases.27 Further, this Court may 

dismiss the proceeding as “frivolous or malicious” if this Court finds that the 

proceeding was clearly for abusive purposes. And, in those cases, the applicant 

would forfeit his good conduct time.28 With the creation of a rebuttable 

presumption, this Court will provide helpful guidance as to what it will consider 

when determining whether to grant or deny a late stage motion to dismiss. 

Applicants will then know what they need to allege and how much supporting 

information is required in their motions to dismiss. While a “rebuttable 

presumption” sounds like a “new” hurdle for applicants to overcome, the reality is 

that the hurdle has always been there. Now, though, the parties will know what 

and where that hurdle is.

In conclusion, this Court should adopt a rebuttable presumption so that all 

parties will know what is required in a late stage motion to dismiss. 

27 See Tex. Gov’t Code §82.061(a); see also Ex parte Kerr, 64 S.W.3d 414, 421 

(Tex. Crim. App. 2002) (“we have both the statutory and plenary authority to hold 

that attorney accountable via our powers of contempt”).

28 Tex. Gov’t Code §498.0045(a).

16

 
Question: If this Court should adopt such a presumption, what factors this 

Court should consider when determining if an applicant has 

rebutted the presumption?

III. There are several factors that this Court should consider when 

determining whether an applicant has rebutted the presumption that 

his late stage motion for dismissal is unreasonable.

If this Court does decide that a rebuttable presumption should be adopted, 

then the burden on the applicant should be less than the subsequent writ bar. 

Therefore, the applicant should need only to allege sufficient specific facts and not 

present evidence.29 In addition, if the State agrees, or the trial court recommends, 

the motion generally should be granted.30 Finally, the motion generally should be 

granted when applicant retains counsel and counsel wishes to dismiss the pro se 

application so that a new application may be filed.31 Defense counsel should be 

given the opportunity to conduct an adequate investigation and file the best 

possible application after they have been retained. 

In addition, this Court should consider whether the applicant has taken 

29 Compare Tex. Code Crim. Proc. art. 11.07, §4(a) (“[A] court may not consider 

the merits of or grant relief based on the subsequent application unless the 

application contains sufficient specific facts establishing ...”).

30 See, e.g., Fed. R. Civ. P. 41(a).

31 It should be noted that, in at least one instance, the federal court has denied a 

motion to dismiss a petition filed by an attorney who was recently retained. The 

attorney was concerned that the pro se petitioner had insufficiently briefed the 

issues and she wanted an opportunity to start over. The federal court stated that 

“justice would not be best served by allowing Petitioner a second opportunity to rebrief his issues.” Mason v. Bauman, No. 2:12-CV-15655, 2014 WL 4678051, *7 

(E.D. Mich. Sept. 18, 2014) (not designated for publication).

17

 
appropriate steps to amend his application or supplement the evidence before 

moving to dismiss; whether the applicant is unable to prove his case at the present 

time but may be able to at a later time (e.g. cannot find a material witness);32

whether claims the applicant wants to raise would be barred if raised in a 

subsequent application;33 whether there is a jurisdictional error that cannot be fixed 

within this application (e.g. direct appeal pending); and whether the State is 

prejudiced by the late dismissal.34

Finally, this Court should consider the federal factors regarding stay and 

abeyance of federal petitions. In Rhines v. Weber, the United States Supreme 

Court determined that the following factors should be considered when deciding

whether to stay and abate a federal petition:

a. good cause for failing to exhaust the claims,

b. the unexhausted claims are not plainly meritless,

c. claims can be exhausted in a reasonable time, and

d. the petitioner has not engaged in intentional delay or abusive litigation 

32 See, e.g., Alexander v. Warden, No. CV970395939S, 2000 WL 486958 (Conn. 

Apr. 11, 2000) (not designated for publication) (counsel moved to dismiss petition 

for writ of habeas corpus because he was unable to locate the witness that would 

prove his ineffective assistance of counsel claim).

33 For example, the factual and legal bases were available when applicant filed his 

first application; however, he did not realize the issue may have merit until after 

the case has been forwarded to this Court and he needs time to investigate before 

proceeding.

34 See generally Ex parte Perez, 398 S.W.3d at 219 (a claim may be barred by 

laches if the “unreasonable delay has prejudiced the State.”); see, e.g., Clark v. 

State, 491 So.2d at 547 (a movant is entitled to dismiss his post-conviction Rule 

3.850 motion until the lower court rules where the State has not shown prejudice).

18

 
tactics.35

While all of these factors would not apply to an applicant’s motion to dismiss, this 

Court should consider whether (1) there is good cause for the late motion, (2) any

claims applicant wants to raise are not plainly meritless, and (3) whether applicant 

has intentionally delayed, used abusive litigation tactics, or has dismissed a prior 

application.

In short, the Court should consider whether the applicant has presented 

sufficient specific facts in his motion to dismiss to rebut the presumption by 

examining:

1. Whether the State agrees to or the trial court recommends dismissal,

2. Whether the applicant has retained counsel and counsel wishes to 

dismiss the pro se application to “start over,”

3. Whether there is a jurisdictional error that cannot be fixed within this 

application (e.g. direct appeal pending),

4. Whether applicant has taken appropriate steps to amend his 

application or supplement the evidence before moving to dismiss,

5. Whether the applicant is unable to prove his case at this time but may 

be able to at a later time (e.g. cannot find material witness),

6. Whether claims the application wants to raise later would be barred if 

raised in a subsequent application,

7. Whether the State would be prejudiced by the dismissal,

8. Whether claims the applicant wants to investigate and later raise are 

not plainly meritless,

9. Whether the applicant has intentionally delayed, used abusive

litigation tactics, or dismissed a prior application in this cause, and

10. Whether there is otherwise good cause for filing the late motion.

35 Rhines v. Weber, 544 U.S. 269, 277-78, 125 S.Ct. 1528, 1535 (2005). 

19

 
Question: Should Applicant’s motion to dismiss be granted?

IV. Because Applicant’s motion to dismiss provides this Court with no 

specific facts or authority to support his motion, this Court should 

deny the motion and proceed to disposition on Applicant’s 11.07 

proceeding even if this Court does not adopt a rebuttable presumption. 

On August 15, 2016, Applicant filed his motion to dismiss his application in 

this Court.36 In that motion, Applicant alleged that his application should be 

dismissed for the following reasons:

1. It was pled improperly

2. The real issues were not developed [and]

3. The issues have been misconstrued[.]37

Applicant’s motion is less than one page and does not provide any facts or 

authority to support his position that the motion should be granted.38 In addition, 

Applicant does not explain why the claims were pled improperly, not fully 

developed, or misconstrued.39 Applicant’s motion is wholly insufficient to allege 

any reason for why this proceeding should be dismissed. Therefore, even if this 

Court does not adopt a rebuttable presumption, Applicant’s motion to dismiss 

should be denied.

If this Court does adopt a rebuttable presumption and considers the State’s 

factors, Applicant’s motion should be denied because it is unreasonable. Again, 

36 See Motion; Order, Dated September 14, 2016, p. 2. (The motion was not 

received by the District Clerk so no Clerk’s Record citation is available.) 

37 Id.

38 Id.

39 Id.

20

 
Applicant’s motion provides no reasonable basis for dismissal.40 Applicant did file 

motions to supplement the record and amend his application prior to filing his 

motion to dismiss.

41 However, the only additional evidence he filed was his own 

affidavit.42 And the only amendments to his application were that he wanted to 

add three grounds (1) ineffective assistance of trial counsel, (2) ineffective 

assistance of appellate counsel, and (3) involuntary plea.43 All three of these 

grounds could have been raised in his initial application and Applicant failed to 

provide these new claims on the proper form.44 Thus, Applicant’s motions to 

supplement and amend did not provide anything new that could not have been 

provided before the trial court filed its findings and forwarded the proceeding to 

this Court. Thus, Applicant has failed to overcome the rebuttable presumption that 

his motion to dismiss is unreasonable. Applicant’s motion to dismiss should be 

denied.

 

CONCLUSION

A rebuttable presumption is necessary. This Court already has discretion to

deny a late stage motion to dismiss. A rebuttable presumption would define for 

litigants what factors this Court considers when determining whether to grant or 

40 See Motion

41 [2 Supp. CR 2, 35; 3 Supp. CR 2]

42 [2 Supp. CR 22]

43 [3 Supp. CR 2-3]

44 [3 Supp. CR 2-3]

21

 
deny the motion. In addition, an applicant has several alternative options to 

moving to dismiss his application, including amending his application and 

supplementing the evidence. Therefore, in most circumstances, a motion to 

dismiss is unnecessary. And, in those situations where a motion to dismiss is 

necessary, the applicant can overcome the rebuttable presumption by pleading in 

his motion why such a motion is reasonable. In this situation, however, 

Applicant’s motion is unreasonable and should be denied.

PRAYER

The State prays that this Court adopt a rebuttable presumption and deny 

Applicant’s motion to dismiss as it is unreasonable.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County

DEBRA WINDSOR

Chief, Post-Conviction

/s/ Andréa Jacobs__________

Andréa Jacobs, Assistant

Criminal District Attorney

State Bar No. 24037596

401 West Belknap

Fort Worth, TX 76196-0201

Phone: 817/884-1687

Facsimile: 817/884-1672

22
CERTIFICATE OF SERVICE

I hereby certify that a copy of the Respondent’s Brief was served by 

electronic service and first class mail on the 30th day of December, 2016, to 

Applicant, Mr. Steve Herbert Speckman, by and through his attorney of record, 

Hon. Jim Gibson, jim@jimgibsonlaw.com, at 909 Throckmorton Street, Fort 

Worth, Texas 76102.

/s/ Andréa Jacobs___________

Andréa Jacobs

CERTIFICATE OF COMPLIANCE

The total number of words in this Respondent’s Brief, exclusive of any 

caption, identity of parties and counsel, statement regarding oral argument, table of 

contents, index of authorities, statement of the case, statement of the issues 

presented, statement of procedural history, signature, certificate of service, 

certification, certificate of compliance, and/or appendix, is 4739 words, as 

determined by the word count feature of Microsoft Office Word 2010.

/s/ Andréa Jacobs___________ 

Andréa Jacobs

23