In the Court of Criminal 

Appeals of Texas

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No. WR-92,780-01

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EX PARTE VIRGIL WORSHAM, JR.,

Applicant

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On Application for a Writ of Habeas Corpus

Cause No. 23,261-2017A in the 402nd District Court

From Wood County 

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YEARY, J., delivered a dissenting opinion, in which SLAUGHTER, J., 

joined.

Today the Court grants post-conviction habeas corpus relief based 

on Applicant’s claim that his trial counsel was ineffective for failing to 

file a motion to suppress evidence. I dissent to the Court’s grant of relief,

believing it to be supported by no evidence at all. 

Applicant alleges that the firearm which was the basis for his plea 
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of guilty to the third-degree felony offense of unlawful possession of a 

firearm was obtained during a warrantless search in violation of the 

Fourth Amendment. U.S. CONST. amend. IV. Law enforcement obtained 

the firearm from inside a backpack found in Applicant’s impounded 

vehicle during an inventory search. Applicant alleges that, if his trial 

counsel had filed a motion to suppress the firearm evidence, the trial 

court would have granted the motion and Applicant would not have pled 

guilty. 

The record of this case, even after remand, is too sparse to support 

the convicting court’s findings and conclusions recommending that the 

Court grant relief. The United States Supreme Court has explained that 

a successful ineffective assistance of counsel claim requires an applicant 

to show that his counsel’s performance was deficient and that his 

defense was prejudiced by that deficiency. Strickland v. Washington, 

466 U.S. 668, 687 (1984). For Applicant, who pled guilty, the prejudice 

prong asks whether “there is a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would have 

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

The record simply does not contain enough information to 

responsibly answer either the deficient performance or the prejudice 

prong of the Strickland/Hill test in Applicant’s favor. Even the most 

thorough reading of the record leaves gaping holes in this Court’s 

knowledge about what occurred and what would have occurred if 

counsel had acted differently. When utilizing the late-stage procedural 

tool of a post-conviction application for a writ of habeas corpus, it is the 

Applicant’s burden to fill these holes. Ex parte Maldonado, 688 S.W.2d 
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114, 116 (Tex. Crim. App. 1985). An Applicant cannot fill these holes 

with just anything—like unsupported allegations. Applicant has the 

burden to prove his allegations with actual evidence. As will be discussed 

below, Applicant did not meet this burden. Instead of granting relief 

despite Applicant’s failure to prove his claims, the Court should once 

again remand to the convicting court for further development of the 

record, or simply deny relief.

I. THE SPARSE WRIT RECORD

When first presented with Applicant’s allegations, this Court 

decided that since he had alleged facts which, if proven true, might 

entitle him to relief, the record should be developed on remand. We 

directed the convicting court to order trial counsel to respond to 

Applicant’s allegations and instructed that, “[i]n developing the record, 

the trial court may use any means set out in Article 11.07, § 3(d).” Ex 

parte Worsham, No. WR-92,780-01, 2021 WL 2674535, at *1 (Tex. Crim. 

App. June 30, 2021) (not designated for publication). Applicant’s plea 

counsel did not respond to the convicting court’s order. The State,

likewise, never responded to Applicant’s allegations. Since Applicant 

pled guilty and never filed a direct appeal, there is no record of trial level 

proceedings for us to consider. No hearing appears to have been held on 

Applicant’s habeas claims. And no new affidavits seem to have been 

obtained from anyone with knowledge of relevant facts in response to 

Applicant’s habeas allegations. Without any of those potential sources 

of evidence, the record consists only of the following:

1) introductory documents such as the clerk’s record 

cover sheet, the clerk’s summary sheet, and the writ docket 

sheet;
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2) Applicant’s indictment for unlawful possession of 

a firearm;

3) the judgment of conviction by the trial court and 

Applicant’s waiver of a jury trial;

4) a letter from the district clerk notifying Applicant 

of the status of his writ application; and 

5) the Application for Writ of Habeas Corpus itself, 

with Applicant’s attachments, including:

5a. the affidavit for probable cause to 

arrest Applicant for unlawful possession of a 

firearm;

5b. a letter written by Applicant to the 

trial court complaining that trial counsel was 

not reviewing discovery with Applicant;

5c. Applicant’s plea papers; and

5d. documents detailing trial counsel’s 

unrelated professional misconduct committed 

before representing Applicant, including a 

judgment of probated suspension in Texas 

and an order of disbarment in California.

Considering all the means for developing the record set out in 

Article 11.07, Section 3(d), there are quite a few obvious sources of 

information that do not appear on this short list. TEX. CODE CRIM. PROC.

art. 11.07 § 3(d). For example, had a habeas corpus hearing been held, 

the record could have included testimony from various individuals with 

potentially helpful information regarding the legality of the vehicle 

search, such as the officers on the scene or the woman involved in the 
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domestic disturbance with Applicant to which officers were responding 

before seizing and searching Applicant’s vehicle. In lieu of a full 

evidentiary hearing, affidavits from these individuals could have 

provided answers. But as the list above shows, the only affidavit 

included is the one showing probable cause to charge Applicant with 

unlawful possession of a firearm.

II. APPLICANT’S BURDEN

This proceeding is a post-conviction application for the writ of 

habeas corpus, not a pre-trial motion to suppress evidence. In this kind 

of proceeding, it is the applicant’s burden to not only allege, but also to 

prove facts which entitle him to relief. Maldonado, 688 S.W.2d at 116. 

This means that Applicant must allege and prove both that counsel 

performed deficiently, by not filing a motion to suppress evidence of the 

firearm, and that he was prejudiced by that failure. Strickland, 466 U.S. 

at 687. Because he pled guilty, in order to show prejudice, Applicant 

must prove that “there is a reasonable probability that, but for counsel’s 

errors, he would not have pleaded guilty and would have insisted on 

going to trial.” Hill, 474 U.S. at 59.

The allocation of burdens would have been different at an earlier 

procedural stage. For example, in a pre-trial motion to suppress 

evidence based on a Fourth Amendment violation, the defendant would 

bear the initial burden to rebut the presumption of proper police action 

by showing that a search occurred without a warrant. Then the burden 

would shift to the State to prove that the search otherwise complied with 

the Fourth Amendment. State v. Martinez, 569 S.W.3d 621, 624 (Tex. 

Crim. App. 2019). At the post-conviction stage, however, the State has 
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no burden to disprove Applicant’s entitlement to relief. Maldonado, 688 

S.W.2d at 116. 

It appears from the convicting court’s findings and conclusions 

that neither the State nor Applicant’s counsel responded to Applicant’s 

ineffective counsel allegations. But their failure to respond does not 

amount to evidence supporting Applicant’s claims. Even when the State 

fails utterly to respond to an application for writ of habeas corpus, 

nothing authorizes a convicting court to enter a default judgment

granting relief based on an Applicant’s pleadings alone. Cf. Allen v. 

Perini, 424 F.2d 134, 138 (6th Cir. 1970) (“The burden to show that he 

is in custody in violation of the Constitution of the United States is on 

the prisoner. [citations omitted] The failure of State officials to file a 

timely return does not relieve the prisoner of his burden of proof. Default 

judgments in habeas corpus proceedings are not available as a procedure 

to empty State prisons without evidentiary hearings.”).

Not only does the State not have a burden to affirmatively 

disprove anything, our statutory law explicitly provides that “[m]atters 

alleged in the application not admitted by the state are deemed denied.” 

TEX. CODE CRIM. PROC. art. 11.07 § 3(b). So, the fact that the State did 

not respond to Applicant’s allegations does nothing to help Applicant 

meet his burden of proof. See Ex parte Empey, 757 S.W.2d 771, 775 (Tex. 

Crim. App. 1988) (holding that even though the writ applicant’s 

allegations were made under oath and were not contested by the State, 

they were deemed denied when not admitted by the State and therefore 

did not entitle the applicant to release absent the applicant meeting his 

burden of proving those allegations). 
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And neither does it satisfy Applicant’s burden of proof simply to 

show that his trial counsel is a crummy lawyer in general. A showing 

must be made that counsel performed deficiently and caused resulting 

prejudice as a result of his actions in the particular case at issue.

Strickland, 466 U.S. at 690 (“[A] court deciding an actual ineffectiveness 

claim must judge the reasonableness of counsel’s challenged conduct on 

the facts of the particular case, viewed as of the time of counsel’s 

conduct.”). Applicant has attached documents to his writ application 

showing that his counsel was recommended for disbarment by the State 

Bar Court of California and that he has in the past been ordered to serve 

a probated suspension by the State Bar of Texas. But nothing in the 

record suggests he was suspended by the State Bar of Texas at the time 

of Applicant’s plea. And this Court has previously determined that

Strickland’s presumption of effective assistance still applied even in a 

case involving a lawyer whose license to practice law in Texas was 

suspended at the time of his trial. See Cantu v. State, 930 S.W.2d 594, 

603 (Tex. Crim. App. 1996) (remanding to the court of appeals to be 

evaluated under the Strickland standard). Accordingly, even if we were 

to consider the documents submitted by Applicant to be sufficiently 

authenticated, the evidence of counsel’s recommended disbarment in 

California and probated suspension in Texas does not get Applicant over

the threshold of his burden. 

The only thing that can help Applicant satisfy his burden is 

evidence of the alleged facts which, if true, entitle him to relief. But the 

trial court largely supports its findings of fact in this case by reference 

to Applicant’s writ application itself. There was no hearing. No 
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witnesses were called. No new affidavits were filed. In fact, the 

convicting court cites only two documents in its findings of fact and 

conclusions of law: (1) the affidavit for probable cause to charge 

Applicant with unlawful possession of a firearm, and (2) the writ 

application itself. 

The convicting court should have done more to allow Applicant to 

develop a record that would show whether Applicant is entitled to relief, 

such as hold an evidentiary hearing during which the parties could have 

called the officers to testify to reveal any potential justifications for the 

inventory search of Applicant’s vehicle. Applicant may very well be 

correct that there was no legal justification for their actions, and he may 

ultimately be entitled to relief. But we cannot simply take his word for 

it. 

Applicant’s writ application is not evidence. It contains nothing 

more than allegations—it is a pleading. On its own, it does nothing to 

advance or satisfy Applicant’s burden of proof. See Ex parte Thomas, 65 

Tex. Crim. 537, 538, 145 S.W. 601, 602 (1912) (“Certainly the application 

for a writ of habeas corpus, in and of itself, is not evidence of any of the 

allegations therein stated; but it is a mere pleading. These allegations 

must be proven, the same as any other allegations, in order to entitle 

the party to the relief sought.”); Ex parte Barganier, 113 Tex. Crim. 495, 

496, 23 S.W.2d 365, 365 (1929) (“The averments in the application 

cannot be treated as a substitute for evidence.”); Ex parte Ambrose, 145 

Tex. Crim. 582, 583, 170 S.W.2d 731, 732 (1943) (“The application for 

the writ, although sworn to, is but a pleading and does not prove itself.”);

Ex parte Garcia, 353 S.W.3d 785, 789 (Tex. Crim. App. 2011) (“Sworn 
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pleadings provide an inadequate basis upon which to grant relief in 

habeas actions. It is beyond dispute, though, that relief may be granted 

on the basis of testimony that supports the pleadings, if that testimony 

is believed by the habeas court.”); State v. Guerrero, 400 S.W.3d 576, 583 

(Tex. Crim. App. 2013) (“[I]n all habeas cases, sworn pleadings are an 

inadequate basis upon which to grant relief[.]”).

III. APPROPRIATE DEFERENCE TO THE CONVICTING COURT

In granting relief to Applicant today, this Court agrees with the 

convicting court’s findings of fact and conclusions of law and its ultimate 

recommendation. We have previously said that, in litigation under 

Article 11.07 of our Code of Criminal Procedure (Felony Post-Conviction 

Habeas Corpus), fact findings made by the convicting court are entitled 

to great deference. Cf. Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex. 

Crim. App. 2007) (“[A]s a matter of course [the Court of Criminal 

Appeals] pays great deference to the convicting court’s recommended 

findings of fact and conclusions of law[.]”). And this ordinary deference 

makes sense—as Judge Cochran memorably explained, the convicting 

court is “Johnny–on–the–Spot” in post-conviction habeas corpus 

litigation, with the means to gather and develop evidence and in a better 

position than this Court to consider that evidence up close and personal 

as the “original” factfinder. Ex parte Simpson, 136 S.W.3d 660, 668–69

(Tex. Crim. App. 2004).

But this well-deserved deference is not absolute. The critical 

caveat to the norm of deference is that the convicting court’s findings 

must be supported by the record. See Ex Parte Navarijo, 433 S.W.3d 558, 

567 (Tex. Crim. App. 2014) (“This Court ordinarily defers to the habeas 
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court’s fact findings . . . when those findings are supported by the 

record.”) (emphasis added); Van Alstyne, 239 S.W.3d at 817 (holding that 

“great deference” to the convicting court’s recommendations is 

appropriate “as long as they are supported by the record”) (emphasis 

added). This Court, while not the original factfinder, is the “ultimate”

factfinder, with “the statutory duty to review the convicting court’s 

factual findings and legal conclusions to ensure that they are supported 

by the record and are in accordance with the law.” Navarijo, 433 S.W.3d 

at 567. When this Court finds, through its independent review of the 

record, that the convicting court’s recommended findings and 

conclusions are not supported by the record, it has the authority to make 

contrary or alternative findings of its own. Ex parte Harleston, 431 

S.W.3d 67, 70–71 (Tex. Crim. App. 2014).

The record of proceedings on this application for a writ of habeas 

corpus is one of those in which the norm of deference to the convicting

court’s findings should not apply⸻at least, not yet. The record contains 

too many unknowns to be able to connect the dots from key findings and 

conclusions back to actual evidence. I will review just a few examples of 

the convicting court’s findings which I believe demonstrate the fatal 

paucity of support for them in the record. 

Convicting court finding of fact Number 6 states: “At no time was 

Applicant’s vehicle observed on a public roadway.” Trial Court’s 

Findings of Fact and Conclusions of Law, Supplemental Clerk’s Record, 

at 8. But no officer has ever said that—at least no evidence shows they 

did. All that the record reveals about the specific location of Applicant’s 

vehicle is what is contained within the arresting officer’s affidavit and 
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the writ application itself. The writ application claims that Applicant’s 

vehicle was on “private property” and that it was “parked in his private 

driveway on private property at his residence.” Writ Application Form, 

Clerk’s Record, at 14. It claims that “[t]he vehicle was not part of a traffic 

stop, nor was Applicant near or attempting to drive the vehicle out of 

the driveway.” Id. But the arresting officer’s affidavit to show probable 

cause to charge Applicant with unlawful possession of a firearm states 

that he had been called to the location to investigate a disturbance 

involving Applicant and another person and that, when Applicant was 

first observed by officers, he was “on the east side of the property on foot 

walking east toward his vehicle.” Affidavit for Probable Cause, Clerk’s 

Record, at 128. Only Applicant’s bare assertions in his writ application 

support the convicting court’s finding about the location of Applicant’s 

vehicle. 

The convicting court’s findings also explicitly rely on the absence

of evidence, which, of course, is no evidence at all. See, for example,

finding of fact Number 9. Finding Number 9 explains that “[t]here is no 

evidence that the shotgun or any other weapon was used or exhibited

during the alleged domestic disturbance.” Trial Court’s Findings of Fact 

and Conclusions of Law, Supplemental Clerk’s Record, at 9. But the 

record does not include any specific information about the domestic 

disturbance the officers were responding to when they arrived at the 

location where Applicant was found, aside from naming the other person 

involved in the disturbance. 

In another example of explicit reliance on the absence of evidence, 

finding Number 19 says that “[t]here is no evidence before this Court 
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showing that impoundment of Applicant’s vehicle was lawful.”1 Trial 

Court’s Findings of Fact and Conclusions of Law, Supplemental Clerk’s 

Record, at 9. As the convicting court notes, even a vehicle parked on 

private property may be lawfully impounded if the reason for 

impoundment serves the police’s community-caretaking function. Trial 

Court’s Findings of Fact and Conclusions of Law, Supplemental Clerk’s 

Record, at 7 (citing United States v. Sanders, 796 F.3d 1241 (10th Cir. 

2015)); see also South Dakota v. Opperman, 428 U.S. 364, 368 (1976)

(explaining that police may conduct a warrantless inventory search on 

a lawfully impounded vehicle and elaborating on the communitycaretaking justification for vehicle impoundment). For example, a 

vehicle may be lawfully impounded if it poses a risk to public safety or 

if it will pose a hazard if left where police found it. Opperman, 428 U.S. 

at 368. Numerous other reasons may also exist that could justify the 

police action in this case. See, e.g., Benavidez v. State, 600 S.W.2d 809, 

811–12 (Tex. Crim. App. 1980) (listing several justifications for lawful 

vehicle impoundment, such as when there is “some reasonable 

connection between the arrest and the vehicle”). At present, however, 

the record evidence in this case sheds no light on why the officers 

impounded Applicant’s vehicle, and no evidence shows that it was 

1 The convicting court, at least on habeas, should have presumed the 

impoundment to be lawful until Applicant proved it was not! See Ex parte 

Rocha, 482 S.W.2d 169, 170 (Tex. Crim. App. 1972) (denying relief in a case in 

which the applicant alleged that his counsel performed deficiently by failing to 

timely file a notice of appeal—where he relied only on his own testimony to 

support his claim since his counsel was deceased—and explaining that, “[i]n a 

habeas corpus proceeding, a petitioner bears the burden of overcoming the 

presumption of regularity of the judgment by showing that there is substantial 

evidence to the contrary”).
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unlawfully impounded. 

Testimony from the arresting officers during a hearing, had one 

been held on Applicant’s habeas application, might have revealed

whether any proper concerns may have justified the impoundment and 

subsequent inventory search of Applicant’s vehicle, or whether those 

actions were improper. But by relying only on Applicant’s claims in his 

writ application, and otherwise on the absence of evidence to rebut 

Applicant’s claims, the convicting court’s findings shift the burden to the 

State to show that the vehicle impoundment was lawful rather than 

placing the burden in post-conviction habeas proceedings properly on 

Applicant to prove the impoundment was unlawful. 

IV. CONCLUSION

Applicant may ultimately demonstrate that he is indeed entitled 

to post-conviction habeas corpus relief. Or maybe, when put to his proof, 

his evidence will fail. But the record simply does not presently provide 

enough evidence to answer the question objectively one way or the other. 

Again, it is Applicant’s burden to present the evidence.2 This Court 

could, under these circumstances, simply deny relief. But I see no reason 

in this case not to remand the case again to the convicting court for

further fact development, at which time Applicant could be given 

another, or perhaps his first, opportunity to meet his burden. 

What I would not do at this juncture is simply grant relief. 

2Applicant might be able to prove he was prejudiced by his counsel’s 

failure to pursue a motion to suppress by showing that (1) the impoundment 

and subsequent inventory search of his vehicle were unlawful, (2) that the trial 

court most likely would have granted a motion to suppress the firearm, and (3) 

that Applicant would not then have pled guilty, but rather would have insisted 

on going to trial. Hill, 474 U.S. at 59.
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Because the Court does so, on the basis of literally no supporting 

evidence at all, I respectfully dissent.

FILED: December 7, 2022

PUBLISH