APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS.
08-DCR-050238 HC2, 10-DCR-050236A HC2 IN THE 240TH DISTRICT
COURT FORT BEND COUNTY
Hervey, J., filed an opinion in which in which Keller, P.J.,
Keasler, Richardson, Yeary, Newell, and Keel, JJ., joined.
Alcala, J., filed a dissenting opinion in which Walker, J.,
Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014),
we agreed with the court of appeals that a juvenile
court's transfer order waiving its exclusive jurisdiction
is subject to legal and factual-sufficiency appellate review.
The issues in this case are whether our decision in
Moon is retroactive, and if so, whether the transfer
order in this case was legally and factually insufficient. We
do not reach those issues, however, because Navarro has
failed to show that his subsequent writ applications satisfy
the Article 11.07 Section 4 subsequent-writ bar of the Texas
Code of Criminal Procedure.As a result, we dismiss
his writ applications.
was fifteen years old when he was charged with murder and two
counts of aggravated assault. He was at a party. When the
party got too large, the host told a group of people,
including Navarro, to leave because he did not know them. An
altercation ensued during which three people were stabbed,
including the host, who died at the scene. Navarro fled in a
car with his friends and returned to his home later that
night. The next morning, detectives showed up at
Navarro's home after they were told that he may have
stabbed the people at the party. Navarro was eventually taken
State asked the juvenile court to waive its exclusive
jurisdiction so that Navarro could be tried as an adult. The
court granted the request, and Navarro was tried in district
court. He was convicted of murder and one count of aggravated
assault. The jury assessed punishment at ninety-nine
years' imprisonment for the murder charge and twenty
years' imprisonment for the aggravated assault charge.
The judge ordered the sentences to run concurrently.
filed a timely motion for new trial, which was denied, and
his convictions were affirmed on appeal. Navarro v.
State, Nos. 01-11-00139-CR & 00140-CR, 2012 WL
3776372 (Tex. App.-Houston [1st Dist.] Aug. 30, 2012, pet.
ref'd) (mem. op., not designated for publication). Later,
he filed his initial writ applications claiming ineffective
assistance of counsel. Both applications were denied without
written order. Ex parte Navarro, Nos. WR-82, 264-01
& -02 (Tex. Crim. App. Nov. 26, 2014). Subsequently,
Navarro filed federal writ petitions, again claiming
ineffective assistance of counsel,  but those proceedings
were stayed after Navarro filed the instant subsequent writ
argues that he has satisfied the Section 4 subsequent-writ
bar because the legal basis for his sufficiency claim was not
recognized, nor could it have been reasonably formulated,
when he filed his previously considered writ applications
challenging his convictions. He also argues that the decision
in Moon is retroactive and that the juvenile
court's transfer order in his case was deficient because
it failed to comply with our decision in
Moon. He further contends that he is
entitled to relief because the district court never had
jurisdiction over his case because the transfer order is
insufficient. We filed and set these applications for
submission to resolve,
(1) Whether [Navarro] may rely on this Court's opinion in
Moon, and if so,
(2) Whether [Navarro] is entitled to habeas relief based on
not reach the submission issues, however, because Navarro
cannot overcome the subsequent-writ bar. The legal basis for
his sufficiency claim was available before Moon,
including when he filed his initial writ applications
challenging his convictions. And even if the legal basis had
not already been recognized, Navarro could have reasonably
formulated his claim based on United States Supreme Court and
Texas appellate court precedent.
11.07 § 4
writ applications challenging a final felony conviction are
governed by Article 11.07 § 4 of the Texas Code of
Criminal Procedure. Under that statute, a court cannot
consider the merits of a subsequent application unless it
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.
Tex. Code Crim. Proc. art. 11.07 § 4(a)(1)-(2) (emphasis
basis for a claim is "unavailable" for purposes of
subsection (a)(1) "if the legal basis was not recognized
by and could not have been reasonably formulated from a final
decision of" the United States Supreme Court, a United
States circuit court of appeals, or an appellate court of
this state on or before the date of the applicant's
previously considered application. Id. art. 11.07
§ 4(b). A new factual basis for a claim is unavailable
if it was not ascertainable using reasonable diligence on or
before the date of the applicant's previously considered
application Id. art. 11.07 § 4(c).
convicting court is the original factfinder, and we afford
almost total deference to its findings of facts that are
supported by the record. Ex parte Weinstein, 421
S.W.3d 656, 664 (Tex. Crim. App. 2014) (citing Ex parte
Chavez, 371 S.W.3d 200, 207 (Tex. Crim. App. 2012)
(quoting Ex parte Reed, 271 S.W.3d 698, 727 (Tex.
Crim. App. 2008)). The same level of deference is afforded to
a habeas judge's rulings on mixed questions of law and
fact, if the resolution of those ultimate questions turns on
an evaluation of credibility and demeanor. Id. at
664. However, if after an independent review of the record,
we conclude that the trial judge's findings and
conclusions are not supported by the record, we may exercise
our authority to make contrary or alternative findings and
conclusions. Id. When the issues, as in this case,
are mixed questions of law and fact that does not turn on
credibility and demeanor, we review the findings and
conclusions de novo. Id.
habeas court found that,
(1) The juvenile court failed to "show its work" in
its written transfer order, as required under Texas law. Tex.
Fam. Code § 54.02(h); Moon v. State, 451 S.W.3d
28, 49 (Tex. Crim. App. 2014). Specifically, the juvenile
court's transfer order fails to specifically state facts
on which the juvenile court based its decision to waive
jurisdiction. Id. at 49.
(2) Before Moon, [Navarro] could not have reasonably
formulated his "show your work" instruction to
courts of appeals for transfer orders based on Kent
or the ...