Ex Parte Reed

¶1filed a concurring opinion.

¶2The Court says, “For over forty years, our writ jurisprudence has consistently recognized that this Court is the ultimate factfinder in habeas coipus proceedings.”1 I believe that this is a serious misstatement of the law, and I also believe that the Court’s engagement in fact-finding in this case is unnecessary. I therefore find myself unable to join the Court’s otherwise formidable opinion.

¶3The Court characterizes itself as the “ultimate fact finder” and the trial judge as the “original factfinder.”2 The Court says that “in most circumstances” and “ordinarily” we will defer to a trial judge’s findings of fact that are supported by the record.3 The Court says that we conduct an independent review of the record and that, if the trial judge’s findings are not supported by the record, we have the authority “to make contrary or alternative findings and conclusions.”4

¶4For these pronouncements, the Court cites a handful of cases, the most recent of which is the per curiain opinion Ex parte Van Alstyne.5But the statements made in these cases are, at best, dicta, and in many instances they fail to support the Court’s holding for other reasons. In Van Alstyne, for example, the statement that this Court is the “ultimate fact finder” was dicta because this Court did in fact defer to the trial court’s findings of fact.6 The *752Court did not reject a single finding of fact, let alone make findings contrary to those of the trial court.7

¶5The Court’s citations to Ex parte Simpson,8 Ex parte Adams,9and Ex parte Young10 provide no further support for the notion that this Court can refuse to defer to a trial judge’s record-supported findings in the habeas corpus context. To the contrary. This Court emphasized in Simpson that the trial judge, not this Court, was responsible for gathering evidence and making fact-findings:

[T]he habeas judge is “Johnny-on-the-Spot.” He is the collector of the evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief. This Court then has the statutory duty to review the trial court’s factual findings and legal conclusions to ensure that they are supported by the record and are in accordance with the law. We are not the convicting trial court, and we are not the original factfinders.11

¶6We made those statements in response to a habeas applicant’s attempt to submit evidence that had not been submitted to the trial court directly to this Court.12 Though we said that we “might” have “implicit” authority to consider evidentiary materials filed directly with this Court, we did not in fact do so in that case.13 But even if we had, doing so would not support the proposition that we could decline to defer to the trial court regarding evidence that actually was before it.

¶7In Adams, the Court said that it was “not bound by the trial court’s findings and conclusions of law” and that “generally” if the trial court’s findings of fact are supported by the record, they should be accepted.14 That is undoubtedly correct. But if findings are not supported by the record, the alternative is not to make contrary findings; it is to reject the unsupported findings. In fact, in Adams the Court relied upon an earlier decision that “compared a trial judge’s factual findings in a habeas corpus proceeding to a jury’s resolution of factual disputes.” 15 And, of course, the Adams court did defer to the trial judge’s resolution of the facts, so whatever the opinion said about the issue was dicta anyway.16

¶8*753In Young, a 1967 case, the Court explained that “[ujnder prior decisions” this Court was not bound by the findings of the district judge but decided the case upon facts ascertained “by affidavit or otherwise” and that the “resolution of disputed issues of fact has not heretofore been left with the district judge, subject to review of the Court of Criminal Appeals.”17 But the Legislature changed that by amending article 11.07 of the Texas Code of Criminal Procedure.18 After amendment, article 11.07 “[fjurnishes statutory authority whereby the Court of Criminal Appeals may accept and adopt the findings of the district judge on such disputed issues of fact or review such findings to ascertain whether they are fairly supported by the transcription of the evidence and the record.” 19 So, before article 11.07 provided for fact-finding by the trial court, this Court may not have been “bound” in any sense by any informal fact-finding that might have been made by a trial court under the auspices of habeas corpus, but it seems clear now that this Court is “bound” by the trial court’s fact-findings if they are supported by the record. It is accurate to say that this Court is “not bound” by the trial court’s fact-findings if one simply means that this Court can reject those findings if they are not supported by the record. But the Court’s language goes further by saying that this Court can make its own findings, rather than simply evaluating whether the trial court’s findings are sufficiently supported, and on occasion ignore a trial court’s fact-finding even when the record supports it.

¶9And the Court further suggests that, if enough of the trial court’s findings are not supported by the record, that can be a basis for disregarding findings that are supported: “When our independent review of the record reveals findings and conclusions that are unsupported by the record, we will, understandably, become skeptical as to the reliability of the findings and conclusions as a whole,”20 “when numerous, but not all, findings and conclusions are not supported by the record, the determination of the level of deference to be accorded the findings and conclusions as a whole is to be made on a case-by-case basis,”21 and, says the Court, “under the rarest and most extraordinary of circumstances ... we will refuse to accord any deference whatsoever to the findings and conclusions as a whole.”22 I am aware of no caselaw supporting these propositions, and the Court cites none. And I am leery of case-by-case determinations and rules that allow for rare exceptions. While “rare” may mean “rare” when a rule is laid down, once that door is open it can mean something else entirely. Especially when, as here, there is no clear standard for determining how many unsupported findings will trigger the loss of deference, and how this Court will decide whether the trial court’s record-supported fact-findings will be ignored. Perhaps a definite rule in this regard is an impossible task, but that is a sign that we should not be engaging in this task to begin with.

¶10And we need not engage in that task here. The issues in this case can be resolved, and in fact are resolved, by deferring to the trial court’s record-supported fact-findings.

¶11*754I concur in the judgment of this Court to deny relief.

¶34filed a concurring opinion.

¶35I join the Court’s opinion. I write separately only to briefly address Presiding Judge Keller’s objection to the Court’s discussion of the respective fact-finding roles of this Court and the convicting court. The Presiding Judge’s view, if accepted, would relegate this Court to the status of an appellate court. But in the post-conviction context, the Texas Constitution and the Legislature have vested us with original jurisdiction.1 I must therefore reject the Presiding Judge’s view that we owe unqualified deference to the convicting court’s findings.of fact under any and every set of circumstances in which those findings are supported by the record. While I believe that as a matter of “efficiency, effectiveness, and comity” it is usually the better practice to defer to the findings of the convicting court, for all the reasons typically articulated for affording deference to the court in which live evidence was originally adduced, it is also important to continue to acknowledge, as the Court does today, that, in the post-conviction habeas context, that deference is never absolute.2

¶36Articles 11.07 and 11.071 of the Texas Code of Criminal Procedure make post-conviction applications for writ of habeas corpus in felony (including capital) eases, though filed in the convicting court, returnable to this Court. Because this Court lacks the capacity to develop live testimony, it is a matter of convenience only that such writs are filed in the convicting court in the first instance; original jurisdiction to resolve the matter lies with this Court.3 The convicting court’s statu*755torily contemplated findings of fact are no more than well-informed recommendations. And though there is rarely any good reason not to follow them when they are supported by the evidence adduced in the convicting court, there is no absolute requirement that we follow them, even if supported by the evidence, when the evidence also supports a different finding that we have reason to deem more justified by credible or reliable evidence, even on a cold record.

¶37I am not suggesting that it would be a good idea to reject record-supported recommendations from the trial court on a regular basis (or even very often). And we plainly do not. But it is a mistake to believe that we are prohibited from doing so even in the rare case. To deny our authority as a court of original jurisdiction is to relegate our status to that of a reviewing court. That would be an abdication of our constitutionally and statutorily assigned authority and responsibility that I could not possibly condone.