Trial counsel asked for $3,500 to hire an expert; the trial court gave it to him. Counsel later asked for an additional $12,000; the court gave him $8,000. Trial counsel says he had no reason to think that another request would change the court's mind. But applicant claims that trial counsel's performance was deficient because he failed to go back and ask the judge for the money that the judge had just refused to give him. It seems a little harsh to suggest that an attorney fails in his duty to his client if, once he has preserved error on an issue by making a request and receiving a ruling, he doesn't go back and badger the trial court into reconsidering its ruling, but the Court remands on this ineffective assistance claim.

Applicant seems to claim that he needs more money now to find out whether there is any mitigating evidence that trial counsel could have found if he had received more money before trial. There is a problem with this claim, and the problem is that speculative allegations are inadequate on habeas. A habeas petitioner seeking funds for investigation must state, "specific facts that suggest that a claim of possible merit may exist." ⁽¹⁾ Counsel has not done so, arguing instead that, had he been supplied with more funds on habeas, a new mitigation specialist and an "addiction specialist" might have found some evidence that could have been presented that the jury may have found to be mitigating. But he alleges no specific facts in support of the claim that this would turn up anything new that a jury might find mitigating.

Of course, the difficulty in alleging "specific facts" is applicant's claim that the lack of money for experts is the reason there are no "specific facts." But the way out of this circle of cause and effect is not to allow a fishing expedition at this late date. The way out is to require applicant to give us some reason to believe that the amount granted him by the trial court was inadequate. The trial court gave applicant $11,500 for outside specialists. On its face, this seems like a reasonable amount for that purpose (to say the least), and applicant has not provided any evidence to the contrary. In order for us to consider allowing applicant a do-over at the habeas stage, by trying to discover some additional evidence that might be mitigating, we ought to be supplied with specific facts that, if true, indicate that he was improperly denied the ability to investigate at trial.

As always, the burden is on the applicant to plead and prove facts that would entitle him to relief. Because applicant has failed to carry this burden, I respectfully dissent.

Filed: June 27, 2007

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1. Tex. Code Crim. Proc. Article 11.071 § 3(b)(2) (emphasis added).