### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00628- CR

Ex parte Barlow S m ith

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 424 TH DISTRICT NO. 422 72B , H ONO RAB LE EVAN C. STUB B S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

B a r lo w Sm it h a p p e a ls th e d istrict court’s order deny ing his second applicat io n f o r wr it of habea s corpus in which he soug ht r elief from his c onviction f or the felony offe nse of fra udulent delivery of a controlled substance. In this habea s application, Smit h raised a claim of actua l innocenc e, challeng ed his indictment as failing to alleg e a crime, and contende d that the statute under which he was indicted and convicted was void f or vagueness. For the rea sons that follow, we will aff irm the district court’s de nial of the ha beas a pplication.

BACK GR OUND Smit h, who was a doctor and a li ce n s ed att orney , was char g ed by indictment with three counts of fra

udulent delivery of a controlled substance. See Tex. He al t h & S af ety Code § 481.129. He acte d pro se below. At trial, afte r a jury was empane led and during the prese ntation of the State’s evidenc e, Smit h decide d to acc ept a plea barg ain in which he pleade d g uilty to the first count of the indictment and the State waived the rema ining two counts. Smit h stated on the rec ord that he had rea d and understood his guilty plea; that he was a licensed attorney and understood theeff

ect of the document; that he had s i gn ed it fre ely and voluntarily ; that he had rec eived all discovery ; that he under stood he was wa iving his right to proc eed w ith a jury trial, his rig ht to file

a motion for new trial, and his rig ht to appea l; that the plea was in his best interest; that he “wa s in entire ag ree ment with” allowing all trial exhibi ts to be returned and not reta ined by the court repor ter; that he was not claiming to b e i n co m p etent; that he had not been forc ed, threatened,

coer ced, or promised any

thing other than the ag ree ment to se cure his ple a of g uilty ; a nd said, “I ’m pleading g uilty beca

use I am guilty .” Ba sed on these aff irmations the district court acc epted Smit h’s plea, order ed a prese ntenc e investigation, and set a sentenc ing hear ing for the following month. One wee k befor e sentenc ing, Smit h filed a m otion to withdraw his g uilty plea, alleg ing that he rende red ineffe ctive assistance of counsel t o h i m s el f and that he pleade d g uilty to a “nonexistent crime.” The court denied Smit h’s motion and sentenc ed Smit h to fiv e y ears’ imprisonment, suspending imposit ion of the sentenc e, and placing Smit h on community supervision for ten y ear s. T h e co u rt order ed Smit h to spend fiftee n day s in the Bur net County J ail as a condition of hi s community

supervision. Smit h then filed h i s fi rs t application for writ of habea s corpus contending that he rende red ineffe ctive assistance of counsel to himself beca use he was on presc ription medication for asthma that impaired his thinking. The district court denied the application, which Smit h appea led. This Court aff

irmed the district court’s order denying habea s relief , and the Texas Court of Criminal A p p e a ls r e f u s e d Sm it h ’ s p e ti ti o n f

o r d is c r e ti o n a

r y r e v ie w . S

e e E x p a r te S m it h , N o . 0 3

- 1 6

- 0 0 0 4 8

- CR , 2016 Tex. App. L EXI S 11087, at *5 (Tex. App.—Austin Oc t. 12, 2016, pet. ref ’d) (mem. op., not desig nated f

or publication).

2Smit h subsequently filed a second application for writ of habea s corpus, contending

that he is ac tually

innocent, that his indictment fails t o char g e a c rime, and tha t the statute cited in his indictment is voi d for va g ueness. The district court denie d Smit h’s sec ond habea s application and issued finding s of fac t stating that: (1) Smit h’s alleg ations reg arding his actua l-innocenc e claim

we re unfounded; (2) Smit h’s complaint about his indictment should have been raised on dir ec t appea l or in his first post-conviction writ; (3) Smit h’s challeng e to the constitutionalit y of the statute should have been raised on direc t appea l o r i n h i s first post-conviction writ; and (4) Smit h’s application as a

whole is unfounded. T his appea l followed.

DISCUSSIO N An applicant seeking post-conviction habea s corpus relief bear s the b u rd en of establishing by a preponde ran ce of the evidenc e that the fac ts entitle him to relief

. Ex parte Richardson , 70 S.W .3d 865, 870 (Tex. Crim. App. 2002); see Tex. Cod e C ri m . Proc. art. 11.072. We defe r almost completely to the habea s court’s deter mination of historical fac ts supported by the

rec ord, espec ially when those fac tual finding s rely upon an evaluation of cre dibilit y and demea nor. Ex part e A mez q u i t a , 223 S.W .3d 363, 367 (Tex. Crim. App. 2006). We use the same defe renc e when revie wing the habea s court’s application of law to fact q u es t i o n s if the resolution of those deter minations rests upon an evaluation of credi b i l i t y an d demea nor. Id. I f t he outcome of t hose ultimate questions turns upon an application of leg al standards, we revie w the habea s court’s deter mination de novo. Id

.

3Sub sequent hab eas appli cation und er ar ticle 11.072 Article 11.072 of t he Tex as C ode of Criminal Procedur e gene ral l y re s t ri cts habea s applicants to “one bite of the apple. ” S ee Tex. Code Crim. Proc. art. 11.072, § 9(a) ; cf. Ex parte Miles , 359 S.W .3d 647, 663-64 (Tex. Crim. App. 2012) (discussing simil arly worde d provisions of article 11.07). I t provides that a court may not consider the merits of a subsequent habea s application unless it contains sufficie nt specific fac ts establishing that: (1) the curr ent claims and issues have not been and cou l d n o t h ave been prese nted previously in an orig inal application or in a previously considere d application filed under this article (2) beca use the fac tual or leg al basis for the claim was unavailable on the date the applican t fi led the previous application. Tex. Code Crim. Proc. art. 11.072, § 9(a) . A fac tual basis of a c laim is considered una vailable f or purpose s of this statute “if the fac tual basis was not asce rtainable throug h the exercise of rea sonable diligenc e on or befor e that date.” Id

. § 9(c)

. A leg al basis of a claim is considere d unavailable “if the l ega l basis was not

rec o gn i z ed by and could not have been reasona bly formulated from a final decision of t he United States Supreme Court, a court of appea ls of the United States, or a court of appellate jurisdiction of this state on or befor e that date .” Id . § 9(b).

No newl y discovere d or newl y availabl e evidence presente d to sup port actual-innocence claim

I n his first issue, Smit h claims that he is actu al l y i n n ocent beca use his indictment failed to a lleg e a c riminal offe nse. A claim of actua l innocence is cog nizable in a post-conviction habea s corpus pr ocee ding. Ex parte Robbins , 360 S.W .3d 446, 458 (Tex. Crim. App. 2011). One ty pe of actua l innocenc e claim—which Smit h prese nts here —is a bare claim of actua l innocenc e or

a “ Herrera -ty

pe” claim. Id .; see Herrera v. Colli ns , 506 U.S. 390, 313-14 (1993). A Herrera claim 4of actua l innocenc e is a substantive claim in which the applicant argues his innocenc e based solely

upon newly discovere d evidenc e, evidence that was neither i ntroduce d at trial nor available to the defe ns e to introduce at trial. Ex parte Robbins , 360 S.W .3d at 458; see Ex parte Elizondo , 947 S.W .2d 202, 208 (Tex. Crim. App. 1996) (noting that actual- innocenc e claim in Herrera was not challeng e to proce eding s leading to conviction but only claim that execution of innocent person would violate Eig hth Amendment of United States Constitution). Be cause a Herrera claim of actua l innocenc e attacks the conviction direc tly , an “extraordinar ily high” standard ap plies. Ex parte Robbins , 360 S.W .3d at 458 (citing Schlup v. Delo , 513 U.S. 298, 315-16 (1995); Ex parte Elizondo , 947 S.W .2d at 209).

To be en t i t l ed to relief on a Herrera actua l-innocenc e claim in a post-conviction application for writ of habea s corpus, the applicant must show by clea r and convincing evidenc e that h e would be acquitted based on evidenc e that is newly discovere d or newly available

. Ex part e Elizondo , 947 S

. W .2d at 209; Ex parte Brown , 205 S.W .3d 538, 545 (Tex. Crim. App. 2006) (def ining “new ly discovere d evidenc e” as evidenc e that was not known to applicant at time of trial and could not have been known to him even with exercise of due diligenc e). The habea s applicant cannot rely on evidenc e or fac ts that wer e available at the time of his plea, trial, or post-trial motions. Ex parte Brown , 205 S.W .3d at 545-46 (noting that “[a] claim of actua l innocenc e is not an o p en window t hroug h which an applicant may climb in and out of t he courthouse t o relitig ate the same claim bef ore diff ere nt judge s at diffe rent times”)

. Her e, Smit h acknow ledg es that he provided no newly discovere d or newly available evidenc e in support of his actua l-innocenc e claim. But in his view, the Herrera standard doe s not

5apply beca use “[i] n Appellant’s case no crime was committed. No new evidenc e is require d.” Smit h contends that he plea ded guilty to a “none x istent crime” be cause the ca ptions for the counts in his indictment ref

err ed to the Penal Code instead of the Hea lth and Safety Code, althoug h the indictment cited the corr ect section number for the felony offe nse of fra udulent delivery of a controlled substance. See Ex parte Smith , 2016 Tex. App. L EXI S 11087, at *2 n.1 (noting that Smit h did not pursue this contention in his first habea s application). In support of his contention, Smit h relies on

a case addre ssing fede ral habea s claims under title 28, section 2254 of the United States Code. See McQ uiggin v. Perkins , 569 U.S. 383, 392 (2013) (providing that i n “e x traordina ry” case s,“[a]

cre dible showing of ac tual innocenc e may allow a prisoner to pursue his constitutional claims

. . . on the merits notwithstanding the exis tence of a proce dural bar to relief ”); see also 28 U.S.C. § 2254 (addr essing fede ral c ourts’ re view of c erta in habea s-cor pus claims). Smith failed to show that the l aw on fede ral habea s claims applies to his habea s claim under Texas law. See Ex parte Crook , No. 08-08-00313- CR, 2010 Tex. App. L EXI S 5959, at *12 (Tex. App.—El Paso J uly 28, 2010, pet. ref ’d) (not desig nated for publication) (conc luding that case conce rning habea s-cor pus applications under title 28, section 2254 of United States Code was “no t controlling ” as to habea s-cor pus application under

article 11.072 of Texas Code of Criminal Procedur e). I n the absenc e of any newly discovered or newly available evidenc e to support his actua l-innocenc e claim—which Smit h acknow ledg es he did not provide—we conclude that Smit h cannot show his entitlement to habeas r elief. See E x parte Elizondo , 947 S.W .2d at 209; Ex parte Brown , 205 S.W .3d at 545. We overr ule Smith’s first iss ue.

6Sm ith f

ailed to raise com plain t about his ind ictm ent in hi s prior habeas app lication I n his second issue, Smit h complains that beca use the captions for eac h count of his indictment r efe rre d to the Penal Code instead of the Hea lth and Safety Code, his indictment failed to alleg e a crime and that those captions “ar e misleading to a person of common understanding ” and prejudice d him. Smit h raised a simil ar argument in his motion to withdraw his g uilty plea, in which he alleg ed that he pled guilty to a “nonexistent crime” beca use the heading of his indictment ref err ed to the P enal Code instead of the Health and S afety Code. Smit h did not pursue that contention i n his first habea s application.

As we have noted, we may not consider the merits of a subsequent habea s application unless it contains sufficie nt specific fac ts establishing that: (1) the curr ent claims and issues have not been an d co u l d not have been prese nted previously in an orig inal application or in a previously considere d application filed under this article (2) beca use the fac tual or leg al basis for the claim was unavailable on the date the applicant filed the previous application. See Tex. Code Crim. Proc. art. 11.072, § 9(a)

. Smit h fails to e x plain why he failed to ra ise this c omplaint a bout his indictment in his prior habe as application. W e over rule Smith’s second issue.

Sm ith f ailed to raise challenge to vagueness of statute in his p rior habeas appl ication I n his third issue, Smit h co n t en d s t hat t he st atute under which he was indi cted and convicted, section 481.129(c) (1) of the Hea lth and Safety Code, is void for vagueness, both fac ially and as applied to him. Smit h did not challeng e the vagueness of the statute for his conviction in his first habea s application, and he provides no explanation why this challeng e to the statute could not have been prese nted befor ehand. See id

. Fur ther, the Texas Court of Criminal Appea ls has held that 7unless a statute has alre ady been decla red unconstitutional throug h a binding judicial deter mination,

a person finally convicted of a criminal offe nse may not bring a fac ial constitutional challeng e to the statute of hi s con v i ct i o n for the first time in a post -convic tion habea s proce eding

. Ex parte Bec k, 541 S.W .3d 846, 859-60 (Te x . Crim. App. 2017). The statute that Smit h challeng es in his sec ond habea s application has not been decla red unconstitutional. Cf. id

. We overr ule Smit h’s third issue.

CONCLUSION We aff irm the district court’s order denying Smit h’s ap p l ication for habea s corpus r elief.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: May

24, 2018 Do Not Publish

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