## I N THE COURT OF CRIMINAL APPEALS OF TEX AS NO. WR-71,070-03

EX PARTE STEPHEN DALE BARBEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS C AUSE NO. C-213-W011571-1004856-C FROM THE 213 T H 

### DISTRICT COURT TARRANT COUNTY
W A L K E R 

### , J., filed a concurring opinion.

CONCURRING OPINION
Today , the Court r e

jects Stephen Dale B arbee, Applic ant’s, third application for habeas
corpus relief on the basis that it is p rocedurally barred. The Court decides that McCoy v. Louisiana , 138 S.Ct. 1500 (2018), d oes not consti t u t e a n e w leg al basis for relief because it was a log ical

ex tension o f Florida v. Nixon , 543 U.S. 175 (2004), based on the factual distinctions—not leg al ones—between the two cases.
I disag ree. Mc C o

y could not have been reasonably formulated by factually disting uishing Nixon

. An arg ument f

actually d isting uishing Nixon is an argument that counsel’s performance was

s o d e f i c i e n t that prejudice, required by S trickland v
. W

ashington , 466 U.S. 668 (1984), should be2

presumed under United S tates v. Cronic , 466 U .S. 648 (1984). This was illustrated by Applicant’s previous applications in which he c halleng ed the effectiveness of counsel’s representation and tried
to disting uish Nixon such that c ounsel’s performance would be presumptively p rejudicial under Cronic

. McCoy was not a log ical ex tension of Nixon , a n in e f f e c t i v e a ssistance of c ounsel case. McCoy ex pressly disclaimed reliance on ineffective assistance of counsel case law under S trickland and Cronic , and Nixon is part of that case law. I nstead, McCoy was concerned w ith the defendant’s autonomy under the p rinciples of Faretta v. California , 422 U.S. 806 (1975). Yet McCoy could not h a v e b e en reasonably f

ormulated from relevant case law such as Faretta or its p rog eny . Mc Co y constitutes a new leg al basis. How e v e r , I a gr ee with the majority that Applicant’s latest c laim does n ot overcome the statutory p rocedural bar f or subsequent writs b ecau s e Applicant fails to set out a prima facie case th at t r i al counsel usurped his authority to set the g oals of his defense. Applicant’s evidence in the habeas record shows that he told counsel repeatedly that he was innocent; it does not show that he told counsel to pursue a defense of asserting innocence that counsel then overrode. According ly , I concur with the Court’s decision to dismiss the application.

I — The P rocedural Bar to Subsequent Writ Applications B e cause this is Applicant’s third application for habeas relief, under a rticle 11.071, § 5, of the Code of Criminal Procedu r e , t h e g eneral rule would bar us from considering this subsequent application. See T E X
. C O D E C R I M
. P R O C

. Ann. a rt

. 11.071 § 5(a) (“I f a subsequent application f or

a writ of habeas corpus is filed after f iling an initial application, a court may not consider the merits of or g rant relief based on the subsequent application

. . . .”). The r e are ex ceptions, however, and3

Applicant claims that the new leg a l basis ex c eption applies to his case. That ex c eption applies if: the [ subsequent] application contains sufficient specific facts establishing that: (1) the current claims and issues have not been and could not have b een presented previously in a t i m el y i n itial application o r in a previously considered a pplication filed under this a

r ticle or Article 11.07 because the factual or leg al basis f or the claim was unavailable on the date the applicant filed the previous application . . . . Id. § 5(a)(1). A leg al basis is previously unavailable: if the leg al b asis was not r ecog niz ed by or could not have been r easonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, o r a court of appellate jurisdiction of this state o n or before that date. Id. § 5(d).
II — McCoy v. Louisiana Applicant claims, a s his new leg al basis, the Supreme Court’s 2018 dec i s i o n i n M c C oy v. Louisiana , which was handed d own seven y ears a fter Applicant’s previous application filed in 2011. See Ex p arte Barbee , No. W R-71,070-02, 2013 W L 1920606 (Tex

. C r i m . A p p . M ay 8, 2013). I n McCoy , the United States Supreme Court held “that a defendant has the rig ht to insist that counsel refrain f rom admitting g u ilt, even when counsel’s ex perienced-based view is that confessing g uilt offers the defendant the best chance to avoid the death penalty .” M cCoy , 138 S.Ct. at 1505. I n McCoy , the defendant was charg ed w ith three counts of first-deg ree murder under
L ouisiana law f

or murdering h is estrang ed wife’s mother, stepfather, and son, and the prosecution
g ave notice that it would seek the death penalty

. Id. at 1505–06. McCoy pled n ot g uilty , insisting that he wa s o u t of the state at the time of the killing s and that corrupt police killed the victims when a drug deal went wrong . Id. at 1506. Counsel c oncluded, however, that the evidence was so overwhelmingthat McCoy would be sentenced to death unless he conceded that he was the killer. Id. McCo y w as furious when told of counsel’s strateg y . Id. McCoy was completely opposed and4

instructed counsel to pursue an acquittal instead of conceding g uilt. Id. At the beg inning of counsel’s opening statement in the g uilt p hase o f trial, counsel told the jury that McCoy committed the three murders. I d. McCoy testified in his o w n defense, maintaining his innocence and pressing his alibi. Id. at 1507. I n closing argument, c ounsel ag ain told the jury that McCoy w as the killer, and o n that issue counsel told the jury that the burden was taken off of the
prose cu t ion. Id. The jury f ound McCoy g uilty of all three f irst-deg ree murder counts. Id. At the penalty phase, counsel repeated that McCoy was g uilty but urg ed mercy in view o f McCoy ’s mental and emotional issues. I

d. The jury returned three death verdicts. Id. On appeal, McCoy argued that his constitutional rig hts were violated when the trial court allowed c ounsel to concede that McCoy committed the murders over his objection, but the L ouisiana Supreme Court held that counsel had the authority

to concede McCoy ’s g uilt despite his opposition. Id. The Supreme Court g ranted certiorari in view of the split between L ouisiana on the one side and decisions by the Delaware and Kansas Supreme Courts on the othe r s i d e o v e r “whether it is unconstitutional to allow defense counsel to concede g uilt over the d e f en d a n t’s intransig ent and unambig uous o bjection.” Id. (citing Cooke v. State , 977 A.2d 803, 842–46 (Del. 2 009), and State v. Carter , 14 P.3d 1138, 1148 (Kan. 2000)).
I n deciding the issue, the Supreme Court beg an with the rig ht to self -representation under Faret t a . Id. at 1507–08 (discussing Faretta ). Should a defendant c hoose to be r epresented by counsel, certain decisions, such a s “what arguments to pursue, what evidentiary o bjections to raise, and what ag reements to conclude reg arding the admission o f evidence,” are made by counsel, while other decisions, such as “whether to plead g uilty , waive the rig h t to a jury trial, testify in one’s own behalf, and forg o an appeal,” belong to the defendant. Id. at 1508 ( citing Gonzales v. U nited States ,5

553 U.S. 242 (2008); and Jones v
. Barnes , 463 U.S. 745 (1983)). The Supre m e C ourt held, in McCoy , that the decision to determine that the o bjective of the d efense is to assert innocence is one of the decisions that belong to the defendant: Autonomy to decide that the objective of the defense is to a ssert innocence belong s in this latter categ ory . J ust a s a defendant may steadfastly r efuse to plead g uilty in the face of overwhelming e vidence ag ainst her, o r reject the assistance of leg al counsel despite the defendant’s own inex perience a nd lack of professional qualifications, so may she insist o n maintaining her innocence at the g uilt phase of a capital trial. These are not strateg ic choices about how best to achieve a client’s objectives; they a re choices about what the client’s objectives in fact are . Id. at 1508 (emphasis in orig inal). The issues in McCoy a

n d in F aretta , Gonzales , and Barnes relate to which decisions belong
to the defendant and w hich decisions belong to co unsel, not whether counsel was effective in performing his duties. S

ee Faretta , 422 U.S. at 807 (self-representation); Gonzales , 5 53 U.S. at 253 (decision of whether to waive A rticle I I I judg e a t voir d ire belong s to counsel); Barnes , 4 63 U.S. at 751 (decision of which nonfrivolous c laims to a ssert on appeal belong s to c ounsel). Not surprising ly , then, the Supreme Court declared in McCoy that:
B e cause a client’s a

utonomy , not counsel’s competence, is in issue, we do not a pply our ineffective-assistance-of-counsel jurisprudence, Strickland v
. W ashington , 466 U.S. 668, 104 S.Ct. 2052, 80 L .Ed.2d 674 (1984), or U nited S tates v. Cron i c , 466 U.S. 648, 104 S.Ct. 2039, 80 L .Ed.2d 657 (1984), to McCoy ’s claim. McCoy , 138 S.Ct. at 1510-11.

III — Florida v. Nixon , Strickland , and Cronic The leg al theory b ehind McCoy —a defendant’s autonomy to d ecide that the objective of his defen s e i s to assert innocence—is c ompletely d ifferent from the leg al theory behind Florida v. Nixon

. The leg al theory beh i n d Nixon is that of Strickland v. W ashington and United States v.6

Cronic , which w ere concerned w i t h i n effective assistance of counsel. Normally , a defendant alleg ing that he r eceived ineffective assistance o f c o u n sel must show (1) that c ounsel’s performance was deficient, a

nd (2) that counsel’s deficient performance prejudiced the defense. Strickland , 466 U.S. at 687. Cronic , decided the same day as Strickland , provid e s a n e x ception to the S trickland ineffective assistance standard. Strickland , 466 U .S. at 668 (decided May 14, 1984); Cronic , 466 U.S. at 648 (decided May 14, 1984); Nixon , 543 U.S. at 190 (“ Cronic recog n iz ed a narrow ex ception
to Strickland ’s holding [ .] ”). Whereas under Strickland a defendant c laiming ineffective assistance of couns e l m u s t m a ke a two-prong showing of deficient performance a nd prejudice, Cronic
recog niz ed that there are c ircumstances in w h ich prejudice is so likely that a defendant need not
prove it. Nixon , 543 U .S. a t 190. Stating the g eneral r ule that “because w e presume that the lawy er is competent to p rovide the g u iding hand that the defendant needs

. . . the burden r ests on the accused to demonstrate a constitutional violation,” the Supreme Court in Cronic ex plained: There are, however, circumstances that are so likely to prejudice the accused that the cost of litig ating their effect in a particular case is unjustified. Most obvious, o f course, is the complete denial o f c oun s el

. T he presumption that counsel’s assistance is essential requires us t o conclude that a trial is unfair if the accused is denied counsel at a critical stag e of his trial. Similarly , if counsel entirely fails to subject the p r osecution’s c ase to meaning ful adversarial testi n g , t h e n there has been a denial of Si x th Amendment rig hts that makes the adversary process itself presumptively u nreliable. No specific showing o f prejudice w as required in D avis v. Alaska

. . . becau s e t h e p etitioner had been “denied the rig ht of effective cross-ex amination” which “ ‘ would be constitutional error o f the first mag nitude a nd no amount of showing of want of prejudice would cure it.’” Circumstances of that mag n itude may be present on some o ccasions when althoug h counsel is available to assist the a ccused during trial, the likelihood that any lawy er, even a fu lly competent one, could provide effective assistance is so small that a presumption of p rejudice is appropriate without inquiry into the actual conduct of the7

trial. Cronic , 466 U.S. 658–60 (citations omitted).
I n Nixon , the Supreme Court resolved the question of “whether counsel’s failure to obtain the defendant’s e x press consent to a strateg y of conceding g u ilt in a c apital trial aut o m a t ically render’s counsel’s p erformance d eficient, a nd whether counsel’s effectiveness should be evaluated under Cronic or Strickland .” Nixon , 543 U.S. at 186–87. Under the facts of the case, the Supreme Court d etermined that c o u nsel’s concession of g uilt did not reach the level of a complete failure to function as the client’s a dvocate, such that Cronic ’s presumption of prejudice applied. Id. at 190. Unlike most cases: the g ravity of the potential sentence in a capital trial and the proceeding ’s two-phase structure vitally affect counsel’s strateg ic calculus. Attor ney s representing capital defendants face daunting challeng es in developing trial strateg ies, not least because the defendant’s g uilt is o ften clear. Prosecutors are more likely to seek the death penalty , a n d t o r e fuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. I n such cases, “avoiding e x ecution [ may be] the best and only

realistic result possible.” Counsel therefore may r easonably decide to fo c u s o n the trial’s penalty phase, at which time counsel’s mission is to persuade the trier that his client’s life should be spared. Unable to neg otiate a g ui l t y p l ea in ex chang e for a life sentence, defense counse l must strive at the g uilt phase to avoid a counterproductive c ourse. I n this lig ht, counsel cannot be deemed ineffective for attempting to impress the jury

with his candor and h is unwilling ness to eng a g e in “a useless charade.” Renowned advocate Clarence Darrow, we note, famously employ e d a similar strateg y as counsel for the y outhful, cold-blooded killers Richard L oeb and Nathan L eopold. I mploring the judg e to spare the boy s’ lives, Darrow declar ed : “ I do not know how much salvag e there is in these two boy s. . . . I will be honest with this c ourt as I have tried to be from the beg inning . Iknow that these boy s are not fit to be at larg e.” Id. at 190–92 (citations omitted). B ecause c onceding g uilt in a capital case c ould be a matter of trial strateg y , the Supreme Court held that counsel’s performance should b e evaluated under the normal ineffective assistance of counsel standard of Strickland

. Id. at 192.8 IV — McCoy

Could Not Have Been F o rm ulated f rom Nixon This Court today determines that the leg al basis of Applicant’s c urrent McCoy -based claim

was previously available because McCoy could have been reasonably formulated by disting uishing Nixon based on the factual distinctions—not the leg al ones. B ut therein lies the rub. Disting uishing Nixon on the facts is an arg ument to apply Cronic

. The fact is, Applicant previously formulated an argument that tried to disting u ish Nixon

. I n his first application, Applicant argu ed that he was effectively abandoned by tr ial counsel when counsel “confessed” Applicant’s g uilt to the jury during closing argument, resulting in a failure to subject the prosecution’s case to meaning ful a dversarial testing and consequently a denial of counsel under Cronic

. 1 Applicant pointed to United States v. Swanson , in which the N inth Circuit held that counsel provides presumptively ineffective ass i s t ance, under Cronic , when he makes such a concession. S

ee U n ited States v. Swanson , 943 F .2d 1070, 1 074 (9th Cir. 1 991). I n Applicant’s proposed conclusions of law, he further argued that Nixon , in which th e S u p r eme Court held that counsel’s failure to obtain ex press consent to such a strateg y was not presumptively ineffect i ve under Cronic , should b e disting uished. See Nixon , 543 U. S

. at 190–91. Specifically , his proposed conclusions of law stated his case differed from Nixon because: 11. F irst , when c ounsel in Nixon informed his client of the proposed strateg y of conceding g uilt, c ounsel “failed to elicit a definitive r esponse,” from the client, thus by i m plication consenting to the strateg y proposed b y counsel. 543 U.S. at 186. I n contrast to Nixon , after his r ecantation of his alleg e dly coerced confession, Mr. B a rbee consistently mainta i n e d h i s i nn o c e n c e , n o t w i t h s t a n d i n g h i s c o u

n s e l ’ s d i s belief

1 The first a

pplication also made two Strickland ineffectiveness of counsel claims centered around the supposed f

ailure o f counsel to properly challeng e Applicant’s video recorded confession and in counsel’s supposed f ailure to call certain witnesses in mitig ation. F inally , Applicant claimed a B rady v iolation from the State’s supposed failure to provide a full, unaltered copy o f Applicant’s video recorded confession.9

in Mr. B arbee’s claim. See State’s Answer at 39, Affidavit o f W illiam Ray and Tim Moore at 6, Affidavit of Amanda Max well at 4. 2
I n h is second application (his first subsequent application), Applicant asserted, as his fourth claim, that trial counse l p ro v i d e d ineffective assistance during trial. H is fourth c laim was itself subdivided int o f

o u r separate sub-claims. The first sub-claim alleg ed that he w as effectively abandoned by counsel, under Cronic , because counsel failed to pr e sent medical and

n e u r o p s y c h o l o g i c a l e v i d e n c e t

h a t w o u l d h ave supported his innocence. The second sub-claim alleg e d ineffective assistance under Cronic f or the same reason stated in the f irst application: trial counsel effectively abandon e d h i m a nd failed to subject the p rosecution’s case to meaning ful adversarial
t e s t ing b y “confessing ” his g uilt to the jury in closing argument. The third and fourth s u b

- c l a i m s asserted that counsel p rovided ineffective assistance under Strickland for faili n g t o e xp l a i n to the jury the sig nifica

n ce of phone records admitted as evidence and for failing to object to testimony provided by a pair of coroners a s prejudicially speculative. Applicant’s fourth c laim, r e lated to trial counsel’s alleg ed ineffective assistance under both Cronic and Strickland , was dismissed as subsequent. 3

2 Applicant’s Proposed F inding s of F act, Conclusions o f L aw and Order, Clerk’s R. 243, Ex parte Barbee , WR-71,070-01. Applicant also pointed to differences d uring the p unishment phase of trial: 13. Second, unlike counsel in Nixon who a dmitted his c lient’s g uilt in order to pursue a vig o r ous mitig ation case, Mr. B ar b e e’ s counsel totally a

bdicated their duty to present a ny meaning f

ul m i t i g ation, based upon the questionable premise that because he r efused to “accept responsibility , ” they were somehow relieved of their leg al duty to try and k eep their client alive, despite the fact that they were the ones w ho admitted his responsibility for the murders in the first place. Id. at 244.

3 The second application for habeas reli e f r a i s e d twenty

- one claims, a nd we dismissed all but the second, which argued that Applicant was deprived of due process a nd a fair trial because his trial attorney s had a conflict o f interest. After remand and a hearing , we denied relief. Ex parte10

As described above, then, the pertinent claims made in the previous applications complain of trial c ounsel’s supposed “confession” o f g u ilt to the jury d uring closing argume n t. Applicant’s
current cla i m f

o r habeas relief under McCoy also complains of the same “confession” by counsel during closing argument. They involve the same factual basis.
B u t the leg al b asis is not the same. A Nixon argument, which is an ineffective assistance of counsel arg

ument, is not a McCoy argument. I n McCoy , the Supreme Court ex p licitly said:
B e cause a client’s a

utonomy , not counsel’s competence, is in issue, we do not a pply our ineffective-assistance-of-counsel jurisprudence, Strickland v
. W ashington , 466 U.S. 668, 104 S.Ct. 2052, 80 L .Ed.2d 674 (1984), or United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L .Ed.2d 657 (1984), to McCoy ’s claim. McCoy , 1 38 S.Ct. at 1 510-11. That should be the end of it. Alth o u gh f actually similar, Nixon and McCoy are leg ally dissimilar, and a McCoy argument could no t b e r e a s onably formulated by disting uishing Nixon on the facts. T hat kind of argument would be Croni c - b a s e d

. A lthoug h a Cronic

based a rg ument would identify the error as a structural one just a s Applicant’s current McCoy -based

a rgu m e n t d o e s today , a Cronic -based argument a sserts that the error is structural for a different

reason. To some e x tent, a ll structural error affects the framework in which the trial proceeds. Id. at 1511. I neffective assistance of counsel under Cronic is structural b ecause, if counsel entirely fails
to subject the prosecution’s ca s e t o m e aning ful adversarial testing , the adversary process itself becomes p resumptively u nreliable. Cronic , 466 U.S. at 659. Conversely , McCoy e rror is structural for at least two reasons identified by the Supreme Court in McCoy : (1) to protect “the fundamental leg al principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty ” ; and (2) the effects of the error are too h ard to measure. McCoy , 138 S.Ct.

Barbee , N o. W R-71-070-02, 2013 W L 1920686 (Tex

. Crim. App. May 8, 2013) (not d esig nated f or publication).11

at 1511 ( quoting W

eaver v. Massachusetts , 137 S.Ct. 1899, 1908 (2017)). “[ C] ounsel’s admission of a client’s g u ilt over the c lient’s ex press objection

. . . blocks the defendant’ s r i gh t t o m ake fundamental choices about his o wn defense. A nd the e f f e c t s of the admission would be immeasurable, b ecause a jury would almost certainly be sway ed by a lawy er’s conces s i o n of his client’s g uilt.” Id. The reason for protections provided in a Cronic claim are very different from the

reasons f or protections p r ovided in a McCoy claim. F urthermore, a Cronic claim is very different from a McCoy claim b ecause Cronic is an ineffective assistance of counsel claim and McCoy is an autonomy claim. The Cronic opinion makes no mention of autonomy , and McCoy makes n o mention of ineffective assistance o f counsel ex cept to say that it does n ot apply

. Id. at 1510–11. I cannot a g ree with the majority

that McCoy

could have reasonably formulated by disting uishing Nixon

. I ndeed, presumptively ineffective assistance o f c o u n sel under Cronic and o v erriding the defendant’s objectives under McCoy do not necessarily overlap. Counsel could be effective under Cronic because counsel ha s s u bjected the prosecution’s case to meaning ful adversarial testing by

cross-ex amining the State’s witnesses and arg uing to the jury why it should render a verdict more favorable to the defendant than that soug ht by the State. However, if those decisions a re contrary to the defendant’s objective of asserting innocence, they a r e n e v e r t h e l e s s s t r u c t u r a l e r r o r s under McCoy

. F or ex ample, in McCoy

and similar cases in which the g overnment seeks the d eath penalty , where counsel concludes that there is overwhelming evidence of g

uilt, counsel’s best option to avoid the death penalty may be to concede the question of g u ilt. See id. at 1506. I f the defendant’s objective is to claim innocence despite the evidence, counsel’s strateg y overrides the defendant’s objective of asserting innocence and violates McCoy , even thoug h it would n ot be ineffective under S trickland and Cronic

.12

Be c a u s e a defendant may well have objectives that are incong ruent with p resenting an effective defense for himself, it is no surprise that the Supreme Court clearly stated that ineffective assistance case law under S t r ickland and Cronic w as inapplicable in McCoy

. Id. at 1510–11 (“B ecause a client’s autonomy , not counsel’s c ompetence, is in issue, we do not apply our ineffective-assistance-of counsel jurisprudence, S trickla n d v
. W

a s hington , . . . o r United States v. Croni c , . . . to McCoy ’s c laim.”). This statement, while not strictly a holding , was a requisite component of the analy sis and should be determinative. According ly , McCoy is not a log ic a l e x t e n s i on of Nixon based on the f a ctual differences between them. An argument that Nixon should b e disting uished o n its facts, such that structural error has occurred, is an argument that counsel’s performance was deficient and, under Cronic , presumptively p rejudicial. M cCoy presents a completely different leg al th e o r y , t h at counsel overrode the defendant’s autonomy to decide that the objective of his d efense was to assert innocence. McCoy could not have been reasonably formulated off of Nixon

. V — McCoy

Could Not Have Been Reasonably F orm ulated As ex plaine d above, the McCoy rig ht—the defendant’s autonomy to decide that the objective of his defense is to assert innocence—was founded upon Faretta , n ot Strickland or Cronic or Nixon

. B u t McCoy could not have been reasonably formulated from Faretta

. Faretta itself did not hold that

a d efendant has a rig ht to decide to assert innocence. I nstead, Faretta held tha t a defendant has a constitutional rig ht of self-representation and he may proceed to defend himself without counsel when he voluntarily

and intellig ently

elects to do so. Faretta , 422 U.S. at 807. I nstead of being directly derived from Faretta , the McCoy rig ht was implied by one of the underlying principles of Faretta , “the fundamental leg al principle that a d efendant must be allowed13

to make his own choices about the proper w ay to protect his o w n liberty .” McCoy , 138 S.Ct. at 1508–09 (quoting W

e aver , 137 S.Ct. at 1908); see also id. at 1508–09 (quoting Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. , 528 U.S. 152, 165 (2000) (Scalia, J

. , concurring ) (“Our
sy stem o f laws g enerally p resumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State.”)). Those c h oices, until McCoy was decided, were limited t o “certain fundamental d ecisions that the criminal justice sy stem reserves for h im to make personally .” Turner v. State , 422 S.W .3d 676, 690–91 (Tex

. Crim. App. 2013) (citing Barnes , 463 U.S. at 751). Those decisions include whether
to plead g uilty , whether to waive the rig ht to a jury trial, whether to testify on one’s own behalf, and whether to foreg o an appeal. McCoy , 138 S.Ct. at 1508; Barnes , 463 U.S. at 751. The decisions that belong ed to a defendant did not include the autonomy to decide that the o bjective o f the defense is
to a ssert innocence. I nstead, other choices such as what arguments t o p u r s u e, what evidentiary objections to raise, and what ag reements to conclude reg arding the admission of evidence were left
to counsel. Gonzales , 553 U.S. 248–49 (quoting New Y ork v. H ill , 528 U.S. 1 1 0, 115 (2000)). W hen Applicant filed his previous applications for habeas relief, trial counsel’s decision to concede g uilt,

as a strateg ic decision to avoid the death penalty , could easily be classified as a decision about which
arg uments to pursue. I n McCoy itself, several members of the Supreme Court felt that d e f e n d a n t ’ s rig ht to autonomy to decide that the objective of the defense is to assert innocence w as “new.” J ustice Alito’s dissent, joined by J ustices T homas and Gorsuch, considered what the majority did a s “ h aving discovered a new rig ht,” McCoy , 138 S.Ct. at 1517 (Alito, J

. , d i s senting ). I n Alito’s view, the Supreme Court decided the “case on the basis of a newly discovered constitutional r ig ht.” McCoy ,14

138 S.Ct. at 1518. Thoug h this may be true as a matter of Supreme Court jurisprudence, J ustice Alito

was perhaps too harsh, b ecause M cCoy re c o gn iz ed a split between the states and adopted the prevailing view. Recog niz ing the factually similar case of Florida v. Nixon , the Supreme Court ex plained that Nixon was different because Nix on “was g enerally unrespon s i v e ” d u r i n g d i s c u ssions of trial strateg y , and “never verbally approved o r protested” counsel’s proposed approach to admit g uilt, an d he complained o nly after trial. McCoy , 138 S.Ct. at 1509 (discussing Nixon , 5 43 U. S

. at 1 8 1, 185). McCoy , in contrast, opposed counsel’s assertion of g uilt at e very opportuni t y , b efore and during trial, both in conference with his lawy er and in open court. McCoy , 1 38 S.Ct. at 1509. I n support of this distinction, the Supreme Court cited Cooke , in which the Delaware Supreme Cou r t s i m i larly disting uished Nixon because: [ i] n stark contrast to the d efendant’s silence in that c ase, Cooke r epeatedly objected to his c ounsel’s objective o f obtaining a verdict of g uilty but mentally i l l , a nd asserted his factual innocence consistent with his plea of not g uilty

. McCoy , 138 S.Ct. at 1509 (quoting Cooke v. State , 977 A.2d 803, 847 (Del. 2009)). Rely ing on the Delaware Cooke opinion, Kansas’s Carter opinion, and Colorado’s Bergerud opinion, the Supreme Court concluded, at the very end of Section I Iof its opinion, that:
I n e ach of the three cases, as here, the defendant repeatedly and a damantly insisted on maintaining his factual innocence despite counsel’s preferred course: concession of the defendant’s commission of criminal acts and pursuit o f diminished capacity , mental illness, or lack of premeditation defenses. These were not strateg ic disputes about whether to concede an element of a charg ed offense, t h ey were intractable disag reements about the f

undamental objective o f t

h e d e f e n d a n t’s representation. F or McCoy , that objective was to maintain “I d id not kill the members of my family .” I n this stark scenario, w e a gr ee w i t h the majority of state courts of last resort that counsel may not admit her client’s g uilt of a charg ed crime over t h e c l ient’s intransig ent objection to that admission.15

McCoy , 1 3 8 S.Ct. at 1510 (discussing Cooke , 977 A.2d 803; People v. Berge rud , 223 P.3d 686 (Colo. 2010); and State v. Carter , 14 P.3d 1138 (Kan. 2000)) (citations omitted).
I t is true that the Supreme Court, in McCoy , poin t e d o ut the f actual differences between Nixon , the state cases, and the case before it. Yet in d oing so, the Supreme Court did not conclude that the differences meant that presump t i v e p r e judice under Cronic applied. To the ex tent the Supreme Court discussed and disting uished Nixon , it is important to remember that Nixon was concerned with whether counsel, who employ s a strateg y of conceding g uilt without obtaining the

ex p ress consent of the defendant, provided presumptively ineffective assistance of counsel under Cronic

. Nixon , 5 43 U.S. at 178. The Supreme Court held that counsel in such a case would not be deemed presumptively ineffective, and t h e d efendant would have to show p rejudice under the Strickland standard. Id. at 1 92. The effectiveness or ineffectiveness of counsel is wholly irrelevant
to the issue the Supreme Court w as concerned with in McCoy —wh i c h d e ci s ions belong to the defendant and which decisions belong to the lawy er. See McCoy , 138 S.Ct. at 1510–11 (“B ecause

a client’s a

utonomy , not counsel’s competence, is in issue, we do n o t apply ou r ineffective-assistance-of-counsel jurisprudence, Strickland . . . or Cronic , to McCoy ’s claim.”). Under a fair reading o f McCoy , the Supreme Court declared that the defendant has a rig ht of autonomy to decide that t h e o b jective of his defense is to assert innocence by r eferencing the fundamental principles of Faretta and by identify ing the split between L ouisiana on the one side and Delaware, Kansas, and Colorado o n the other side a nd opting to adopt the latt er position stated in Cooke , Carter , and Bergerud

. S ee id. at 1507 (“W e g ranted certiorari in view of a d ivision of opinion
among state courts of las t r esort on the question whether it is unconstitutional to allow defense counsel to concede g

u ilt over the defendant’s intransig e nt and unambig uous objection.”).16

Althoug h McCoy has its roots in Faretta and resolved a split among various states, McCoy is the case that recog n iz es the autonomy -rig ht in the fir s t p l a c e . According ly , not only could Applicant not have reasonablyformulated the autonomy -based McCoy argument based on Nixon ,
as the majority sug g e sts, he could not h ave reasonably f ormul at e d t h e a u tonomy -based McCoy
arg ument based o n a prior decision of the United States S u p r em e Court, a court of appeals of the United States, o r a court of appellate jurisdiction o f this state. McCoy constitutes a new leg al basis for habeas relief. The majority ’s a ssertion that Applicant could have formulated the autonomy

- b ased McCoy
arg ument based on Nixon appears to be correct. However, I cannot ag ree that Applicant could have reasonably formulated the a utonomy -based McCoy argument based on Nixon as the ex ception to the article 11.071 § 5 bar requires. T h e word reasonably is included in the statute for a reason. The question is whether, p rior to McCoy , a reasonably competent Tex as attorney representing Applicant would have read the Nixon o p i n i o n , thoug ht o f the p ossibility of ex panding the Nixon ineffective assistance of counsel holding to an a utonomy issue, contemplated that this Court or the Supreme Court of the United States may b uy the argument under the facts of A p p licant’s case even thoug h no Tex as Court or the Supreme Court of the United States had ever done so, and then come to the conclusion that making the argument would be prudent. Ag ain, whether a n ar gu m ent can be formulated and whether an argument can b e reasonably formulated are very different. As pointed
out by the majority in this case, Cart e r a n d C o o k e , both state supreme c ourt c ases, predicted the United States Supreme Court’s holding in McCoy

. B u t, would a r e asonable, competent, and prudent attorney representing Applicant prior to McCo y h a v e , e ven a fter contemplating a McCoy -esque arg ument, then researched case law from every state court in the United States to back u p a n idea that17

had, at best, a minuscule c hance o f success? W hile Appellant c ould h ave formulated a McCoy -esque arg ument a s was done in Cooke out of Delaware, Carter o ut of K ansas, a nd Berg e r u d o u t o f Colorado, decisions b y courts of appellate jurisdiction of o ther states, he could not have reasonably done so. The attempt would have been destined to f ail because it would have been based on case law not included in § 5(d). See, e.g. , Ex parte Medellin , 223 S.W .3d 315, 352 (Tex . Crim. App. 2006) (dismissing habeas corpus application as subsequent where the claimed leg al bases, a decision of the
I nternational Court of J ustice a nd a Presidential memorandum, w ere not final decisions of a court listed in § 5(d), even thoug h they were not available at the time of the previous application). VI — No P rim a F acie Case However, it is not enoug h for a subsequent application for habeas r elief to invoke a new leg al basis, the application must also alleg e sufficient specific facts that, if true, entitle him to relief. Ex parte Maldonado , 688 S.W .2d 114, 116 (Tex

. Crim. App. 1985); T E X
. C O D E C R I M
. P R O C

. Ann. art. 11.071 § 5(a). As discussed, McCoy holds that a defendant has a rig ht of “[ a] utonomy to decide that the o bjective of the defense is to assert innocence.” McCoy , 138 S.Ct. a t 1508; see a lso McCoy , 138 S.Ct. at 1505 (“W e hold that a defendant has the rig h t to insist that c ounsel refrain from admitting
g uilt, even when counsel’s ex p erience-based view is that confessing g uilt offers the defendant the best c hance to avoid the death p enalty .”). W hile McCoy ’s f ull scope has y et to be determined by the Supreme Court, I believe that, a t a mi n i m u m, McCoy requires a showing that the defendant told counsel that he wants to pursue a strateg y of assertinginnocence. W h ile Applicant’s application for habeas relief and his brief do n ot alleg e that Applicant told his attorney s that he wanted to pursue an innocence defense, Applicant, in his application for habeas relief and in his brief, asserts that he had an o bjective to maintain innocence and counsel overrode18

that o bjective by conceding g uilt. The evidence he p oints to in order to support that claim, however, does not g o so far. Applicant points to the fact that he unsuccessfully soug ht to have counsel removed, similar
to the unsuccessful pre-trial attemp t t o r emove counsel in McCoy

. See McCoy , 138 S.Ct. at 1506. I n support of this, Applicant provides copies of two letters he sent to the trial c ourt. The first letter
state s t h a t “ s o m e serious issues” h ave occurred b etween Applicant and counsel, and “[ t] here is a complete break-down in communication.” 4 The letter complains that counsel is f ailing to keep him advised of the proceeding s. The letter also states that Applicant is unable to assist in his defense due
to a head injury and mig raines. F inally , the letter states that counsel informed him of their heavy case loads, and h e is afraid that counsel would not have the time to handle his case properly

. Applicant’s second letter to the trial court only states that “ [ t] h ere has and continues to be a serious breakdown in communication.” 5 Neither letter even implies that Applican t w ished to pursue an innocence strateg y that counsel was overriding

. L etters a side, Applicant points to evidenc e t h a t he claims shows counsel w a s aware of his desired objective. I n a joint affidavit in response to Applicant’s first applic a t i o n f o r h a beas relief, counsel stated:

• Applicant “constantly stated tha t R o n Dodd w as the real killer” and “was steadfast in his assertion that he was innocent;” 6

• Applicant “took the position tha t Ron Dodd killed L isa and J ay d en

4 Clerk’s R. 225.

5 Id. at 228.

6 Id. at 234.19 Underwood and . . . was not present when that happened;” 7

• Applicant “maintained that he was completely i n n o c e nt” and “refused to accept any

responsibility ;” 8 and

• “I t wa s c o u nsel’s d ecision to call this case an accident, because the ‘Ron Dodd did it’ theory just wasn’t g oing to work, a n d h ad not worked in this case.” 9 A memorandum of understanding prepared by

counsel before trial stated that:

• “Client has maintained h i s innocence to attorney s since the d ate of appointment.” 1 0 And at an evidentiary

hearing held on Applicant’s second application for habeas relief:

• Counsel testified that Applicant “ had told me he was innocent” “all along ;” 1 1 and

• Co-counsel con f

i r m ed that Applicant told him “all along that he was innocent.” 1 2
W h ile Applicant’s e vidence supports his claim that he repeatedly told counsel that he was innocent, the evidence shows nothing of whether Applicant a ctually told them to pursue a strateg y of asserting innocence at trial. I

nstead, at the evidentiary

hearing counsel testified: Q. Did y ou have Mr. B arbee’s permission to tell the jury that?

. . .

7 Id. at 231.

8 Id. at 235, 236.

9 Id. at 234.

1 0 Id. at 239.

1 1 Id. at 299.

1 2 Id. at 302.20

A. Okay . Your question is, did I tell Mr. B arbee or did I ask him if Icould do that? Q. Yes. A. W e had a conversation on F ebruar y 2 1 s t , w h i ch was, I believe the morning of trial. I ’m talking a

bout 2006. And I had ty

ped up a memo and I showed it to him, a nd he didn’t w ant to sig n it b ut we went over it. And the g ist o f the memo was that that was the only way we could g et throug h this and him be found not g uilty was that we take that position. And it was not a -- it w as n ot an ag r eement to g et his permission; it was just my theory of the case. He didn’t sig n the memo but he had it ex p lained to him. So d i d I e x p l icitly ask him if I could do that? The answer is no. Did he ex p licitly tell me he didn’t w a n t m e t o do it? The a nswer is no. I t’s no to that question, too. 1 3
F inally , Applicant argues that e ven thoug h a defendant’s motivations are irrelevant to the autonomy rig ht, counsel was aware of his motivation, heig htening the importance of allowing him to make his

own decisions. This is so because a defense psy chiatrist told counsel that Applicant’s chief concern was not disappointing his mother and that: [ Applicant] appeared fix ated on “how his mother will v iew him” . .

. He even went so far as to say that he would rather be ex ecuted than have h is mother see him plead g uilty to the charg es. 1 4
I f Applicant’s true objective of his defense was to avoid disappointing his mother by

not pleading
g uilty , then counsel met a nd achieved this objective: there was no g uilty p lea, a nd there was a jury trial.
I n McCoy , the defendant ex plicitly and repeatedly opposed counsel’s strateg y of conceding
g uilt to avoid the death penalty

. Applicant’s evidence shows, at the most, that Applicant repeatedly told counsel he was innocent. N o matter how emphaticall y h e does so, this does not meet the

1 3 Id. at 299.

1 4 Id. at 262.21

requirements of M

cCoy

. I a g ree with the majority that Applicant’s facts do n ot show a prima facie McCoy violation. VII — Conclusion Under § 5(d), the leg al basis of an applicant’s claim is unavailable if it c ould not have been reasonably fo r m u l ated based on r elevant case law in the applicant’s previous applications. The majority e rrs in d etermining that the leg al basis of his curr e n t cl a i m , McCoy , c ould have been formulated by d isting uishing Nixon on its facts. T h e majority ’s conclusio n i g n o r es the fact that Nixon

was a n i n e f

f e c t ive a ssistance of counsel c ase, and the issue in Nixon was whether presumptive prejud i c e u n d e r Cronic applied to the facts of that case. An a rg u ment disting u ishing Nixon on its facts is a n argument that presumptive prejudice under Cronic applies. This is clear from Applicant’s own previous application making this very argument. I neffective a ssistance of counsel c laims under Strickland , Cronic , and Nixon have different leg al bases from a

nd are n ot interchang eable with M cCoy

. Applicant’s current McCoy -based claim

asser t s , n o t t h a t c o u n s e l p r o v ided p resumptively p rejudicial ineffective assistance of counsel, but that counsel overrode his autonomy to d ecide that the objective of his defense is to claim innocence. Applicant could not have reasonably formulated his McCoy argument from relevant Supreme Court, federal appellate c o u rt, or Tex as appellate case law. McCoy a dded a new entry to the list of decisions that belong to the defendant, and in d oing so borrowed from D elaware, Kansas, and Colorado case law. A Tex as habeas applicant, seeking to g et p ast the proced u r a l b a r , i s statutorily unable to rely
upon other state court case law. I therefore disag ree w ith the Court’s conclusio n that McCoy does not constitute a new leg al basis for habeas relief. Nevertheless, I a g ree with the majority that Applicant’s claim fails to meet the ex ception to22

the § 5 procedural b ar because he did not instruct counsel to assert innocence at trial. F or McCoy to actually apply to the situation a t h and, it is ne c es s a r y t h a t , at the time of his trial, Applicant’s objective of his defense was to assert innocence, that Applicant communicated this ob j e c tive to counsel, and then counsel o verrode Applicant’s objective. B ecause Applicant’s evidence in support of his c laim for habeas r elief shows, at the most, that A p p l i ca n t r e p e atedly told counsel he was innocent, I

concur with the Court’s judg ment in dismissing the application.

F iled: F ebruary

10, 2021 Publish