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

- 37 2-0 10662

- 0861282 -A IN THE 37 2 ND JUDICIAL
DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE SCOTT

WISCH AND HONORABLE GEORGE GALLAGHER, JUDGE S 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
CLERKIDENTITY OF PARTIES AND COUNSEL

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

and appellate counsel and current address es (if known) :

Applicant : Original Ple a 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 W rit 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

iCourt : Original Plea Proceedings Hon. Tom Crum Adjudication Proceedings Hon. Scott Wisch

Post

- Conviction Writ /Brief Hon. George Gallagher

Hon. Scott Wisch

37 2 nd Judicial District Court 401 W. Belknap Fort Worth, Texas 76196

iiTABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL .

. . . . i

INDEX OF AUTHORITIES .

. . . . . . . v i

STATEMENT OF THE CASE .

. . . . . . 2

STATEMENT REGARDING ORAL ARGUMENT .

. . . 3

RESPONSE S 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 c onsider 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.

ST ATEMENT OF FACTS .

. . . . . . . 5

SUMMA RY OF THE ARGUMENT .

. . . . . . 6

ARGUM EN TS AND AUTHORITIES .

. . . . . 7

iiiQuestion: 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?

I I. T his 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

prese rvation 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

ivQuestion: If this Court should adopt such a presumption, what factors this Court should consider when determining if an applicant has rebutted the presumption?

I II. 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 rebutt able presumption.

. . 20

CONCLUSION.

. . . . . . . . . 21

PRAYER.

. . . . . . . . . . 22

CERTIFICATE OF SERVICE

. . . . . . . 23

CERTIFIC ATE OF COMPLIANCE

. . . . . . 23

vINDEX 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

viEx 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

- 75,66 4, 2007 WL 1138874 (Tex. Crim. App. Apr. 18, 2007) (not designate d 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 20 6 (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

viiEx 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 Court s 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

viiiMason 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. C ode 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. a rt. I, §12

. . . . . . . . 9, 14

Tex. Gov’t Code §82.061(a)

. . . . . . . 16

Tex. Gov’t Code §498.0045(a).

. . . . . . 16

ixTex. 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

xIN 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 372 ND JUDICIAL
DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE SCOTT

WISCH AND HONORABLE GEORGE GALLAGHER, JUDGES PRESIDING.

TO THE HONORABLE JU DGES 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 Appeal s’ Order dated September 14,

2016 , and in support shows the following:

1STATEMENT OF THE CASE

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

habeas corpus.

Course of Proceedi ngs/Trial Court Disposition

. On July 12, 2004, S teve

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

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

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

2STATEMENT REGARDING ORAL ARGUMENT

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

submits that or al 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 significan tly aided by oral argument by the parties.

3RESPONSE S 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 c onsider 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.

4STATEMENT OF FACTS

On December 10 , 201 5 , 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 Applica nt’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 a dopted 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 mo tions to reopen the habeas

proceeding and request ed 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 Aug ust 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

.

5SUMMARY 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 a pplication 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 dism iss 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 autho rity 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 unreas onable.

6ARGUMENTS 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 supplem ental

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, 82 4 (Tex. Crim. App. 2016)

.

7to 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 b ar 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 over come 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 fi ling 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 stil l 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 a nd 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).

8Q uestion: 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. T his 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 wh en 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, a rticle 11.072 does not

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

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 corpu s 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 60 th 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).

9a rticle 11.071 requires that all applications filed after the initial appli cation is filed

be treated like subsequent application s 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 dismiss ing them without prejudice.

F or direct appeals, t he 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, thoug h, are different because an appella nt cannot refile his appeal

at a later date afte r 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 allo ws 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 dismiss ed 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 Te x. 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).

10requests 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 ma tter of right. 18

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

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

without prejudice as it runs contrary to their respective subsequent b ars. 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) (Flori da: “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 mer its 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 limit ations 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 judgm ent 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 ma y 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 soo n 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

11In 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

jurisdictio ns.

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

motion s

. 21 However, in most situa tions, dismissal is unnecessary. As explained

unlimited opportunities to present p ost

- 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. WR

77,867

- 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. WR

67,880

- 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

- 69,10 7

- 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

12above, 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 nee ds 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 th at 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 designate d for publ ication) (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 re mand 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 mot ions 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 P erez , 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.

13This 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 p robably 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 becau se 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).

143. 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.

“ T he State has a legitimate interest in th e 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 a ddition, 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, t his

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).

15motion is not in the best interest of the proceeding. In addition, this Court has

contempt power against attor neys 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, i n those cases, the applicant

would forfeit his good conduct time. 28 With th e 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 supporti ng

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 h urdle 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).

16Question: If this Court should adopt such a presumption, what factors this

Court should consider when determining if an applicant has rebutted the presumption?

I I I. 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

applicati on so that a new application may be filed. 31 D efense 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 a pplicant 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, t he 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 federa l court stated that “justice would not be best served by allowing Petitioner a second opportunity to re

brief his issues.” Mason v. Bauman , No. 2:12

- CV

- 15655, 2014 WL 4678051, *7 (E.D. Mich. Sept. 18, 2014) (not designated for publication)

.

17appropriate 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 t he 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 b y 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., A lexander 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 invest igate 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

- convic tion Rule 3.850 motion until the lower court rules where the State has not shown prejudice).

18tactics. 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 meritl ess, 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 t he application wants to raise later would be barred if raised in a subsequent application,

7. Whether the State would be prejud iced by the dismissal,

8

. Whether claims the applicant wants to investigate and later rais e are not plainly meritless,

9

. Whether the applicant has intentionally delayed, used abus ive litigation tactics, or dismissed a prior application in this cause, and

10

. Whether there is otherwise good c ause for filing the late motion.

35 Rhines v. Weber , 544 U.S. 269, 277

- 78, 125 S.Ct. 1528, 1535 (2005).

19Question: 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, th is 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 mot ion, 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.

20Applicant’s motion provides no reasonable basis for dismissal. 40 Applicant did file

motions to supplement the record and ame nd 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 coun sel, (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 t o

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 t o 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 presump tion 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]

21deny the motion. In addition, an applicant has several alternative options to

moving to dismiss his application, including amending his application and

supplementing the evid ence. 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

T he 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

22CERTIFICATE OF SERVICE

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

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

Applicant, Mr. Steve Herbert Speckman

, by and through hi s attorney of record,

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

Worth, Texas 76102

.

/s/ Andréa Jacobs___________

Andréa Jacobs

CERTIFICATE OF COMPLIANCE

The total number o f 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 proc edural history, signature, certificate of service,

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

determined by the word count featu re of Microsoft Office Word 2010

.

/s/ Andréa Jacobs___________

A ndréa Jacobs

23