Causey, Allen Andre

In the Court of Criminal
Appeals of Texas
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No. WR-94,707-01
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EX PARTE ALLEN ANDRE CAUSEY,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. D-1-DC-91-915672-A
In the 331st District Court
Travis County
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YEARY, J., filed a dissenting opinion.

Today, the Court grants relief on the convicting court’s finding of
false testimony—overturning a more than thirty-year-old conviction.
Majority Opinion at 2. Notably, too, the current Travis County District
Attorney agrees that relief ought to be granted on this ground. But the
trial prosecutor who secured this conviction way back in 1992, attorney
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Terry Keel, submitted an amicus brief on behalf of the victim’s family. 1
I firmly believe that our adversarial system functions at its best when
the parties are actually adversaries. Accordingly, I would file and set
this case to allow the adversarial process to play out, including by
permitting oral arguments with respect to the issues raised in the
amicus. 2 Because the Court does not, I respectfully dissent.
I. BACKGROUND
Applicant was convicted of murder in 1992 and sentenced to fifty
years’ imprisonment. The Third Court of Appeals affirmed his
conviction. Causey v. State, No. 03-92-00378-CR (Tex. App.—Austin del.
Sep. 14, 1994) (not designated for publication). Thirty years later, in
2022, Applicant filed this, his first writ of habeas corpus, in the
convicting court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant argues that he is actually innocent, that false
testimony led to his conviction, and that the State failed to disclose
favorable evidence. After the convicting court held an evidentiary
hearing, it entered findings—recommending denying the actual
innocence claim but granting relief based on false testimony and
suppression of favorable evidence. And the State agrees that Applicant

1 This amicus brief was filed in the convicting court. Subsequently, in

late February 2025, attorney Brad Heilman submitted a letter to this Court on
behalf of the victim’s family, urging us to consider the amicus. In that letter,
he identified himself as “Attorney for the Victim, Anita Byington, through her
surviving family[,]” which is same role Mr. Keel held when he submitted the
amicus brief in November 2023. It is unclear whether Mr. Keel still represents
the victim.

2 Whether Mr. Keel or Mr. Heilman presents oral argument might
depend on who currently represents the victim. Regardless, we should permit
one of the two to argue the issues highlighted in the amicus.
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is entitled to relief on those two claims. The Court’s opinion today grants
relief on one of those two claims—the State’s unknowing use of false
evidence.
II. OUR ADVERSARIAL SYSTEM
Our adversarial system “is premised on the well-tested principle
that truth . . . is ‘best discovered by powerful statements on both sides
of the question.’” Penson v. Ohio, 488 U.S. 75, 84 (1988) (quoting Irving
R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61
A.B.A.J. 569, 569 (1975), which in turn quotes Lord Eldon). Indeed,
“partisan advocacy on both sides of a case will best promote the ultimate
objective that the guilty be convicted and the innocent go free.” Herring
v. New York, 422 U.S. 853, 862 (1975). And the system “assumes that
adversarial testing will ultimately advance the public interest in truth
and fairness.” Polk County v. Dodson, 454 U.S. 312, 318 (1981). Simply
put, our adversarial system works best when the parties are
adversarial. 3
Indeed, less than two months ago, the Supreme Court of the
United States implicitly reaffirmed this principle in Glossip v.
Oklahoma. See Glossip v. Oklahoma, 604 U.S. ___, 145 S. Ct. 612, 624
(2025) (analyzing an amicus brief filed on behalf of a murder victim’s

3 See United States v. Rhynes, 196 F.3d 207, 248 (4th Cir. 1999) (King,

J., concurring in part and dissenting in part) (“Our adversarial system works
best when lawyers are permitted and encouraged to engage in effective
lawyering.”); Malone v. Smith, No. 2:19-CV-02800-JDW, 2023 WL 2351694, at
*2 (E.D. Pa. Mar. 3, 2023) (“[O]ur adversarial system works best when
someone presents both sides[.]”), appeal dismissed sub nom. Malone v.
Superintendent Houtzdale SCI, No. 23-1456, 2023 WL 10367206 (3rd Cir. Dec.
20, 2023).
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family). There, the Court appointed counsel to represent a murder
victim’s family as amicus curiae “[b]ecause Oklahoma agree[d] with
Glossip on the merits of his appeal[.]” Id. Its opinion devoted several
pages to addressing the amicus brief. Id. at 625–32. Although the Court
did not allow a hearing for the family, it explicitly rejected the notion
that it did not entertain the family’s interests, noting that the family did
not request a hearing. Id. at 632 n.11. Justice Thomas, writing
separately, emphasized that he would have given even greater
consideration to the amicus, suggesting that the Court had merely
“retreat[ed] to faux formalism when dealing with the victim’s family.”
Id. at 659 (Thomas, J., dissenting).
III. CAUSE FOR CONCERN
The amicus brief in this case highlights things that should cause
us to pause before jumping to conclusions about Applicant’s false
evidence claim. For instance, amicus highlights that, at pretrial,
Applicant acknowledged that police read him his rights, did not threaten
him, and did not beat him. Applicant also testified that Sergeant
Polanco was not present when he signed the confession. But at trial, he
testified that his confession was the result of threats and intimidation
by Sergeant Polanco. Sergeant Polanco denied this allegation and
testified that he was never alone with Applicant. And despite
Applicant’s trial attorney’s attempts to introduce extraneous acts by
Sergeant Polanco in connection with coerced confessions, the trial judge
found the evidence inadmissible and excluded it.
Additionally, Applicant’s delay in bringing all his claims raises
serious cause for concern. His trial was in 1992, but he did not raise
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these issues until 2022—thirty years later. This “neglect for an
unreasonable and unexplained length of time under circumstances
permitting diligence, to do what in law, should have been done” is
subject to laches. 4 Ex parte Perez, 398 S.W.3d at 210 (first quoting Ex
parte Carrio, 992 S.W.2d 486, 487 n.2 (Tex. Crim. App. 1999), which in
turn quotes BLACK’S LAW DICTIONARY 875 (6th ed. 1990)). Although the
State attempts to waive laches, its attempt should be considered by the
Court to be utterly ineffectual because society has an interest in the
finality of convictions and because this Court has already explained that
courts may consider the issue sua sponte, without the need of the State
raising it in the first place. See Ex parte Smith, 444 S.W.3d 661, 668
(Tex. Crim. App. 2014) (“A court may consider sua sponte the interests
of the judicial system and society generally because they implicate
values that may stretch beyond the concerns of the parties.”).
Because of the concerns that the amicus brief highlights, it is of
the utmost importance that we invoke our adversarial system. As the
Supreme Court of the United States explained, doing so is the best way
to ensure that “the guilty be convicted and the innocent go free.”
Herring, 422 U.S. at 862. It is the best way to discover truth and ensure
fairness. As in Glossip, where the United States Supreme Court
entertained an amicus brief when the State agreed that relief was
appropriate, we too should entertain adversarial arguments relevant to

4 Any argument that the delay is explained by recently discovered
evidence ignores the fact that Applicant attempted to impeach Sergeant
Polanco at the time of his trial, indicating at least some awareness (even way
back then) of the very grounds upon which Applicant now—thirty years later—
requests relief from this Court.
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determining the truth. We should do so by permitting oral argument,
and we should invite the representatives of the victim’s family to
participate. 5
What we should not do is grant relief in a two-page, unpublished
opinion that ignores the amicus brief entirely. Instead, we should follow
the lead of the United States Supreme Court and address all relevant
evidence and arguments before overturning a conviction. Even
assuming that the majority in Glossip engaged in “faux formalism” as
Justice Thomas suggested, Glossip, 145 S. Ct. at 659 (Thomas, J.,
dissenting), the Court at least addressed the arguments of the amicus,
unlike this Court today. We should embrace our adversarial system and
allow “partisan advocacy on both sides of [the] case [to] best promote the
ultimate objective that the guilty be convicted and the innocent go free.”
Herring, 422 U.S. at 862.
IV. CONCLUSION
It is axiomatic that the State is not permitted to present false
evidence to obtain a conviction. Doing so violates a prosecutor’s primary

5 While the State and habeas counsel object that Mr. Keel labors under

a conflict of interest, I fail to see a conflict in a trial prosecutor, in a habeas
proceeding, defending a conviction that he obtained and representing the
victim’s family—particularly when he is one of only two attorneys willing to do
so and takes the time to highlight relevant evidence for the Court’s
consideration. See Glossip, 145 S. Ct. at 659 (Thomas, J., dissenting) (“[E]ven
if the family had no formal right to be heard, any reasonable factfinder plainly
could consider the account of the evidence that the family has brought to light,
making the majority’s procedural objections beside the point.”). And even if Mr.
Keel did labor under a conflict of interest, Mr. Heilman is presumably free of
any conflict.
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duty to ensure that justice is done. 6 But before holding at so late a date
that the State committed this grievous legal sin, the Court should
permit assiduous testing of the issue—and take full advantage of the
adversarial process.
In light of the issues raised by the amicus, and relying fervently
on the principle that our adversarial system works best when the parties
are actually adversaries, I would file and set this case for a written
opinion; and I would set it for oral argument. Because the Court instead
dispenses with these best-practice truth-finding steps, I dissent. 7

FILED: April 16, 2025
PUBLISH

6 See TEX. CODE CRIM. PROC. art. 2.01 (“It shall be the primary duty of

all prosecuting attorneys, including any special prosecutors, not to convict, but
to see that justice is done.”).

7 Former Presiding Judge Keller, prior to her departure from the Court,

wrote a dissent in this case sharing many of these same thoughts, which I
would have joined had the Court issued its ruling before her departure.