Worsham, Virgil Jr.

       In the Court of Criminal
           Appeals of Texas
                            ══════════
                           No. WR-92,780-01
                            ══════════

                EX PARTE VIRGIL WORSHAM, JR.,
                                Applicant
   ═══════════════════════════════════════
        On Application for a Writ of Habeas Corpus
     Cause No. 23,261-2017A in the 402nd District Court
                    From Wood County
   ═══════════════════════════════════════

       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
                                                             WORSHAM – 2




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,

 (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, 

 (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
                                                            WORSHAM – 3




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, 

, 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;
                                                          WORSHAM – 4




             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
                                                          WORSHAM – 5




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, 

. 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, 

.
       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, 

 (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, 

 (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, 

 (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, 

 (“[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, 

 (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, 

, 

 (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, 

, 

 (1929) (“The averments in the application
cannot be treated as a substitute for evidence.”); Ex parte Ambrose, 

, 

 (1943) (“The application for
the writ, although sworn to, is but a pleading and does not prove itself.”);
Ex parte Garcia, 

 (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, 

(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, 

 (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, 

, 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, 

 (Tex. Crim. App. 2014) (“This Court ordinarily defers to the habeas
                                                         WORSHAM – 10




court’s fact findings . . . when those findings are supported by the
record.”) (emphasis added); Van Alstyne, 

 (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, 

. 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, 

, 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.” 

 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
                                                            WORSHAM – 12




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, 

 (10th Cir.
2015)); see also South Dakota v. Opperman, 

 (1976)
(explaining that police may conduct a warrantless inventory search on
a lawfully impounded vehicle and elaborating on the community-
caretaking 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, 

. Numerous other reasons may also exist that could justify the
police action in this case. See, e.g., Benavidez v. State, 

,
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, 

 (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”).
                                                            WORSHAM – 13




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, 

.
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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