Ex parte Benton

EX PARTE KIP LEE BENTON, Applicant

No. WR-72, 123-03

Court of Criminal Appeals of Texas

May 25, 2022

Do not publish

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 29901CR-C IN THE 40^TH DISTRICT COURT FROM ELLIS COUNTY

Keller, P.J. filed a dissenting opinion, in which Slaughter J. joined section C only. Yeary, J. filed a dissenting opinion. Keel, J. dissents.

OPINION

PER CURIAM.

Applicant pleaded not guilty and was convicted by a jury of two counts of the aggravated sexual assault of a disabled individual. He was sentenced to sixty years' imprisonment for each count. The Tenth Court of Appeals affirmed his conviction. Benton v. State, 237 S.W.3d 400 (Tex. App.-Waco 2007, pet. ref'd). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex Code Crim. Proc. art. 11.07.

Applicant contends that his convictions were based on a law which was not effective until after the alleged offenses occurred. Tex. Penal Code §22.021. Applicant was convicted of the offense of aggravated sexual assault of a disabled person that allegedly occurred on June 15, 2003 and July 15, 2003. The statute making the sexual assault of a disabled person a first degree aggravated sexual assault under the Texas Penal Code was not effective until September 1, 2003. Tex. Penal Code 22.021(a)(2)(C). The actions allegedly committed by Applicant in June and July of 2003 did not constitute the offense of aggravated sexual assault at the time, therefore the judgments in these counts are void.

Relief is granted. The judgments in cause number 29901CR, counts one and three, in the 40^thDistrict Court of Ellis County are set aside, and Applicant is remanded to the custody of the Sheriff of Ellis County to answer the charges as set out in the indictment. The trial court shall issue any necessary bench warrant within ten days from the date of this Court's mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.

Keller, P.J., filed a dissenting opinion in which Slaughter, J., joined as to Part C only.

In this subsequent habeas application, Applicant claims that his convictions for aggravated sexual assault are invalid because the element in his cases that elevates sexual assault to aggravated sexual assault was not part of the statute at the time he committed the offenses. The habeas court has recommended that the application be dismissed, and I agree. Applicant has failed to show an exception to the bar against subsequent habeas applications. He has shown no new facts or law, and, for various reasons, he has not met the requirements of the "innocence" exception to the subsequent-application bar. But even if Applicant had shown an exception to the bar against subsequent applications and even if his claim were shown to have merit, the Court grants the wrong relief when it orders the convictions set aside and Applicant remanded to answer the charges set out in the indictment. Because any infirmity in his convictions relates only to proof of an aggravating element, the appropriate remedy, if he is entitled to one at all, would be to reform the judgments to show conviction of the lesser-included offense of sexual assault and remand for a new punishment hearing.

A. Background

Applicant was found guilty by a jury of two aggravated sexual assaults. For both convictions, the aggravating element was that the victim was a disabled person.^[1] Applicant's claim is that the aggravating element of "disabled person" in the aggravated-sexual-assault statute did not exist at the time he committed his offenses. He points out, accurately, that the amendment that added that element was effective September 1, 2003.^[2] He claims that he was convicted of offenses occurring in June and July of 2003.

B. Barred Subsequent Application

Because this is a subsequent application, Applicant must meet an exception set out in Article 11.07, Section 4, ^[3] before the merits of his claim may be considered. The opinion granting relief does not mention that the current application is subsequent or explain how Applicant meets an exception to the subsequent-application bar.

Section 4 provides in relevant part:

If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.^[4]

In response to the question on the habeas form asking why his current grounds were not presented and could not have been presented in his previous application, Applicant responded:

Prior to the time the initial post conviction writ was filed none of the prior officials or attorneys (the trial attorney for applicant, the trial district attorney, the trial judge, the appellate attorney for applicant, the appellate attorney for the state, and the appellate court) noticed that the two counts of conviction in the indictment alleged the commission of the offense before the offense was made penal.

This explanation is insufficient to meet the first exception to the subsequent-application bar. The first exception requires that Applicant show a factual or legal basis that was unavailable at the time the previous habeas application was filed.^[5] His contention that various participants in his trial and appeal were ignorant of the legal basis for his claim does not show that the factual or legal basis for his claim was unavailable at the time he filed his first habeas application. Moreover, the facts and the law upon which he relies-the trial record to establish the dates of his offenses and the effective-date language in the 2003 amendment-were available not only when he filed his first habeas application but also at trial and on direct appeal.

That leaves the second exception, that he plead and prove facts showing "by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt."^[6] This exception requires a showing of innocence as a gateway that allows a court to reach an otherwise barred constitutional claim.^[7] Applicant did not explicitly address this exception in his application, but he made a claim that at least arguably attempts to meet it:

Applicant should be allowed to present this issue in a second post[-conviction] application because an ex post facto violation is a fundamental defect; the enactment of laws which make an act a criminal offense after its commission is absolutely prohibited. Such an error should be presentable at any time.

It is not enough to say that a particular right is "fundamental" and "can be raised at any time" to avoid the statutory bar against subsequent applications.^[8] A statutory exception must still be met.^[9] But I will assume that Applicant has raised "innocence" by saying that making an act criminal after its commission is prohibited.

Nevertheless, Applicant falls short of meeting the innocence-gateway exception in at least two respects. First, Applicant has not made the requisite showing of innocence. We have held that an applicant must make a prima facie showing of innocence to satisfy the exception.^[10] Applicant's claim of innocence is founded on the same contention as his alleged constitutional violation-that he was convicted of an offense that was not yet codified at the time of his conduct. Specifically, his claim is that the sexual assaults occurred in June and July of 2003 but that the disabled-person aggravating element became effective on September 1, 2003.^[11]

But Applicant has not made a prima facie showing that a rational juror could not have found that the sexual assaults were committed on or after September 1, 2003. In his application, he points to the June and July dates in the indictment, but the indictment includes "on or about" language, which would allow for the offenses to have been committed on or after September 1, 2003.^[12] The judgments, which are included in the habeas record, set out dates matching those in the indictment. But assuming that the jury verdicts conformed to the indictment allegations with the "on or about" language, ^[13] we would not be bound by the dates in the judgments because they would fail to reflect the jury's verdicts.^[14] The court reporter's record is not in the habeas record, and Applicant does not claim that the evidence at trial shows that the offenses must have been committed before September 1, 2003. The direct appeal opinion seems to indicate that the offenses could have taken place as late as 2004, ^[15] and the victim was mentally disabled, ^[16] so it is possible that the victim could not pinpoint the exact dates of the offenses.

Even if Applicant had established that the offenses must have been committed before September 2003, he would fail to meet the innocence-gateway exception for a second reason: He has not met the "but for" clause of the exception. As set out above, the exception requires a showing that "but for a violation of the United States Constitution," no...