Garza, Humberto

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

RECEIVED

COURT OF CRIMINAL APPEALS

EXPARTE § TEXAS COURT OF 3/20/2015

CRIMINAL APPEALS

ABEL ACOSTA, CLERK

§ NO. WR 78,113-01

HUMBERTO GARZA,§

§ IN THE 370th JUDICIAL DISTRICT

APPLICANT § COURT OF HIDALGO COUNTY, TEXAS

§ NO. CR-3175-04-G(1)

APPLICANT'S OBJECTIONS TO, AND MOTION FOR

WITHDRAWAL OF, THE CONVICTING COURT'S FINDINGS

OF FACT AND CONCLUSIONS OF LAW AND

RECOMMENDATION OF DENIAL OF RELIEF

HILARY SHEARD

Texas Bar # 50511187

7301 Burnet Road, # 102-328

Austin, TX 78757

Phone: (512) 524 13 71

Fax: ( 512) 646 7067

HilarySheard@Hotmail.com

Counsel for Applicant.

APPLICANT'S OBJECTIONS TO THE CONVICTING COURT'S

FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND ITS

RECOMMENDATION THAT RELIEF BE DENIED

Applicant Humberto Garza, by and through counsel, respectfully requests

that this Honorable Court withdraw its Order of February 12,2015, entering

Findings of Fact and Conclusions of Law (hereafter "Findings and Conclusions)

and containing a recommendation denying habeas corpus relief, and, taking into

account the following objections, withdraw the Order of February 12, 2015, recuse

itself and request the assignment of a different judge to preside over renewed

proceedings or, in the alternative, enter revised Findings of Fact and Conclusions

of Law and recommend relief.

As Applicant in his Renewed Objections Concerning Procedures and

Rulings in this Tex. Code. Crim. Proc. Art. 11.071, filed simultaneously with his

proposed Findings and Conclusior:ts, has previously stated, these proceedings were

rendered unfair because of the Court's refusal to recuse itself, its refusal to admit

the reports of Applicant's expert witnesses and its denial of prompt and adequate

funding with which Applicant could develop his case. The fact-finding

procedures and rulings of the Convicting Court repeatedly impaired Applicant's

ability to adequately prepare and develop his case and to have his Grounds for

Relief fairly considered in these TEX. CODE CRIM. PROC. Art. 11.071 capital

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habeas corpus proceedings. In a~dition to his previously stated objections, which

Applicant now renews, he makes further objection to the Order of February 12,

2015, which adopted almost in their entirety the State's proposed Findings and

Conclusions.

While state habeas courts are given discretion over the methods of

developing and receiving evidence to resolve contested factual claims, see, e.g.,

TEX. CODE CRIM. PROC. Art. 11.071, § 9(a), such discretion is circumscribed by

the necessity that the fact-finding procedures be adequate for reaching reasonably

correct results. Ex parte Davila, 530 S. W.2d 543, 545 (Tex. Crim. App. 1975)

(citing Townsend v. Sain, 372 U.S. 293, 316 (1963)). Since the fact-finding

procedures here were not adequate, and the Convicting Court has largely adopted

the State's Findings and Conclusions despite the fact that they are flawed in many

ways, this Court should reconsider its rulings.

This Court is asked to remc;:dy several fundamental errors in this case,

namely:

I) The Convicting Court Should Have Recused Itself from Presiding

over These Art. 11.071 Proceedings; 1

1

As discussed in Applicant's Petition for Writ of Mandamus of July 9, 2014 at 32-38, of

which a copy is attached and which is incorporated herein by reference, the avenues by which to

raise for review the denial of a Motion to Recuse filed during Art. 11.071 proceedings are

unclear. Without mandamus relief, such proceedings continue to be presided over, as they have

here, by a judge who should have been recused, and whose findings of fact and conclusions of

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2) The Convicting Court Adopted the State's Proposed Findings of Fact

and Conclusions of Law and Recommendations almost in their

entirety and with virtually no amendment, thereby abdicating from its

proper role of"neutral arbiter" of the proceedings;

3) The Convicting Court Denied Applicant an Adequate Opportunity to

Develop the Factual Basis for His Grounds for Relief Because of the

Court's Consistent Failure to Provide Timely and Adequate Funding

with Which Applicant Could Develop His Case.

4) The Convicting Court Rendered the Proceedings Unfair by Refusing

to Admit the Reports ofExpert Witnesses Who Were Unable to

Testify Solely Because ofThe Timing Limitations Imposed upon this

Case.

law must be revisited. The issue of recusal is urged again in these objections, which are being

filed simultaneously in the Court of Criminal Appeals, in order to ensure that Applicant's

objection to the conduct of these proceedings before a judge who should have been recused is

preserved.

Page 4 of 51

l) The Convicting Court Should Have Recused Itself from Presiding over

These Art. 11.071 Proceedings.

On May 27,2014, Applica~t's Counsel filed a Motion for the Court to

Recuse Itself, which was denied. The case was therefore assigned to the Hon. J.R.

"Bobby" Flores of the 139lh District Court of Hidalgo County, for a hearing on the

motion to recuse. The hearing was conducted on June 16, 2014. On July 3, 2014,

Judge Flores entered an order denying the motion to recuse. Judge Flores denied

the Motion to Recuse on July 3, 2014, without stating reasons for his decision, and

Applicant subsequently, on July 8, 2014, sought leave to file a motion for writ of

mandamus against Judge Flores, and commanding him to vacate his "Order

Denying Applicant's Motion to Recuse 370lh District Court Judge Noe Gonzalez"

and to enter an Order recusing the Court. The Court of Criminal Appeals denied

leave to file the motion for writ of mandamus on July 18, 2014.

The Court of Criminal Appeals did not deny the Petition for Writ of

Mandamus on its merits, and Applicant continues to maintain that this Convicting

Court should have recused itself.

The grounds for the recusal motion were that the Court's impartiality might

reasonably be questioned, and that it had personal knowledge of disputed

evidentiary facts. The gist of the factual allegations were that the Court and its

bailiff, Alicia "Licha" Salinas, engaged in prejudicial off-the-record

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communications with the jury during the trial, in the jury room, and outside the

presence of counsel or the defendant.

The subject matter of the communications included the concern of jury

members about their personal safety in this gang-related case in which the jury

was required to answer the "future dangerousness" special issue, TEX. CODE CRIM.

PROC. Art. 37.071. The actions of the Court and bailiff formed part of the subject

matter of Applicant's Grounds for Relief Four, Five and Six, which included

allegations of'~ury misconduct, including the exposure of the jury to outside

influences." Because of the Convicting Court's failure to provide funding

(discussed further below) few of the jurors could be interviewed while the

Application was being prepared, and such interviews as were conducted were done

by volunteer law students. Some subsequent investigation of the case revealed

that former jurors would indeed testify that both the Court and its bailiff engaged

in off-the-record communications with the jury during the trial, in the jury room,

and outside the presence of counsel or the defendant. Those communications

concerned, among other things, the Court stating that gangs may threaten and

follow jurors, and the bailiff telling the jurors, in response to their security

concerns, that the Court carried a gun.

Since both the Court and its bailiff's actions were an integral part of the

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pleaded grounds for relief, the basis for the motion to recuse was that, in the

circumstances the Court's ability to adjudicate impartially a ground for relief

concerning its own and its bailiffs conduct "might reasonably be questioned," and

also that "the judge has personal knowledge of disputed evidentiary facts

concerning the proceeding", TEX. R. CIV. P. 18b (b)(l) and (3). Applicant objects

both to the Court's initial and continuing failure to recuse itself and to Judge

Flores' subsequent denial of the Motion to Recuse, and urges that the question of

recusal be reconsidered and reviewed.

Moreover, the Court's handling of the underlying issues during the

pendency of the case and in the subsequent Findings and Conclusions further

demonstrates that the Court's impartiality might reasonably be questioned: In

addition to refusing to recuse itself, Court refused even to be interviewed by

counsel concerning the allegations concerning outside influences on the jury and

would only answer a few questions from counsel about what it stated its general

courtroom practices to be. See Letters from undersigned counsel to the Court

dated July 29, 2014, and August 3, 2014, filed on August 5, 2014. Thus, counsel

was prevented from discovering relevant facts, and could not, of course, call the

.

Court as a witness in the proceedings, because of the absence of prior discovery,

and because ofTEX. R. EVID. 605, which prohibits a sitting judge from appearing a

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witness.

Furthermore, some of the very few amendments made by the Court to the

State's proposed Findings and Conclusions included truncating the factual

narrative of Ms. Palacios and Ms. Guerrero's accounts of what had happened as

set out by the State in its proposed Findings and Conclusions: Compare State's

proposed Findings and Conclusions at 528-539, with the Court's Findings and

Conclusions at 528-530, which eliminate paras. 562-90 of the State's drafting,

among other material.2 The Court then simply dismissed the former jurors'

testimony as not supporting "a finding that the jury was exposed to improper

comment from this Court or its staff," and added that it "agrees with Judge Flores'

implicit findings on credibility." Findings and Conclusions at para. 566, p. 529.

The Court also added that "The evidence at the recusal hearing does not support a

recusal," id., thereby volunteering an opinion in its own favor on a legal question

it was not called upon to answer. However, precisely because the Court's own

integrity and that of its staff member were being called into question, these

findings cannot be relied on as being impartially made. The jury-related claims

2

The Court also inserted some facts concerning the recusal proceedings, see, e.g., Court's

Findings and Conclusions at 528. Applicant does not suggest that he agrees with the State

drafted material that was redacted, but emphasizes that the Court's concern to edit this discrete

part of the State's voluminous pleading demonstrates why the Court's impartiality may properly

be questioned.

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are discussed again at pp. 600-604, and the Court again redacted some of the

State-drafted material. Paragraph 66 in the Court's version removes even the

explicit mention of material supporting both the recusal motion and Applicant's

3

jury-related grounds for relief.

Moreover, Applicant notes that Ms. Salinas was called by the State at the

hearing on the motion to recuse and her testimony might properly have been

considered by Judge Flores with regard to the recusal issue. However, Ms.

Salinas was neither called by the State in person at the August 20 14 evidentiary

hearing, nor was the transcript of her recusal hearing testimony offered into

evidence by the State for the purpose of these underlying Art. 11.071 proceedings,

which are governed by the "Texas Rules of Criminal (sic) Evidence," see Art.

11.071 § I 0. Applicant, on the other hand, had the transcripts of the recusal

hearing testimony of jurors PalaciosNera and Guerrero correctly admitted into

3

Despite discussing the case law at length, neither the State nor the Court address the fact

that the communications with the jwy by the Court and bail iff in this case were ones which

constituted an "outside influence" on the jury, evidence as to which would be admissible under

TEX. R. EVID. 606(b)( I). Nor is any attempt made to objectively analyze the prejudice to

Applicant from those communications, as required by McQuarrie v. State, 380 S.W.Jd 145, 153-

4 (Tex. Crim. App. 2012) (reversing and remanding for further proceedings where outside

influence had potentially had negative impact on jury's verdict). Colyer v. State, 428 S.W.Jd 117,

129-30 (Tex. Crim. App. 2014)(affirming objective "reasonable person" test as measure of

impact of outside influence on hypothetical average jurors). Rather para. 71, p. 603, seems to

directly contradict those authorities. The. findings and conclusions concerning this ground for

relief therefore cannot stand, and are objected to.

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evidence. See Order on Motion to Deem Stipulated Evidence Formally Admitted

of August 29, 2014. The Court in these habeas proceedings properly only had

before it the affidavits, declarations and testimony of various former jurors,

uncontradicted by anything to which Ms. Salinas testified. In this situation,

whatever factors underlay Judge Flores' decision, this Court- or rather, a different

judge presiding over this matter subsequent to this Court's recusal- should have

arrived at its own estimation of the credibility of the former jurors rather than

simply adopting the supposed "implicit" findings contained in Judge Flores

simple statement that recusal was denied, and contained no findings of fact or

conclusions of law. Indeed, Judge Flores' ruling may not have rested on

credibility at all, or on any other matter relevant to these habeas proceedings.

For these reasons, Applicant objects to the Court's Findings and

Conclusions, which must be revisited.

2) The Convicting Court Adopted the State's Proposed Findings of Fact

and Conclusions of Law and Recommendations Almost in Their

Entirety and With Virtually No Amendment, Thereby Abdicating from

its Proper Role of "Neutral Arbiter" of the Proceedings.

The Court adopted the State's proposed Findings and Conclusions virtually

without emendation or correction except, as noted above, with regard to

information concerning issues that Applicant contends should have led to the

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Court's recusal and to the grant of relief on his allegations concerning outside

influences on the jury. Those parts of the State's proposed Findings and

Conclusions that the Court did adopt overlook copious evidence that undennines

the State's findings, and the many logical flaws in the State's submissions. A

prime example is the finding concerning trial counsel's preparation of the case, at

p. 511:

523. This Court was not privy to infonnation concerning the steps

which not privy to infonnation concerning the steps which (sic-

repetition in original) Applicant's trial attorneys, Ralph R. Martinez

and Libra do "Keno" Vasquez took to investigate the underlying

criminal case, including any conversations they may have had with

Applicant, members of his family, or other potential witnesses, and

thus must rely on Mr. Martinez' and Mr. Vasquez' credible testimony

concerning this topic.

This "finding" overlooks the fact that in no case is a trial judge ever likely

to be privy to the details of defense case preparation, and that if such knowledge

were a prerequisite to the grant of habeas relief, relief would probably never be

granted. Moreover, the Court overlooks the many affidavits from potential

mitigation witnesses either overlooked by trial counsel or from whom trial counsel

failed to elicit pertinent facts, as well as court and other records concerning

Applicant's background and that of his family. See, e.g., Applicant's Exhibits 4,

5, 10-29, 37-50, 54-73, and Applicant's Hearing Exhibits 2-3. The only reason

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that the Convicting Court stated it "must" rely on counsel's testimony is, logically,

that is the testimony that supported the State's position. This ignores the wealth of

information undermining the State-drafted Findings and Conclusions. In addition

to the affidavits from family members, the information before the Court included

psychological reports created during Applicant's adolescence, Applicant's

Exhibits 18 and 19, and the affidavit of Applicant's former TYC (Texas Youth

Commission, now Texas Juvenile .Justice Department) caseworker, which

indicated that Applicant had serious psychological problems and came from a

family background that contributed to those problems. Applicant's Exhibit 70,

Affidavit of Jeanette Brothers.

There is no indication that the Court actually considered the content of

Applicant's mitigation evidence developed in these habeas proceedings as

exposing trial counsel's flawed and cursory case preparation or the prejudice

caused to Applicant by trial counsel's performance: Although those four volumes

of exhibits are listed and described at pp. 78-282, they are barely mentioned or

discussed in the actual Findings and Conclusions. The Findings and Conclusions

signed by the Court do not therefore amount to the work of an impartial court

affording a full and fair proceeding and fairly supporting its findings by reference

to the actual record of the case. A post-conviction court must actually consider

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mitigation evidence brought before it, and may not unreasonably discount the

impact of such evidence by assuming that because, for example, it might be in

some way imperfect, it should be disregarded entirely. Porter v. McCollum, 558

U.S. 30, 37, 42-43 (2009) (perceived problems w:ith cognitive testing and with

evidence of alcohol abuse and abusive childhood did not justify "discount[ing]

entirely the effect that testimony might have had on the jury.").

The Court of Criminal Appeals in Ex parte Reed, 271 S.W.3d 698,729

(Tex. Crim. App. 2008) warned that a convicting court that does not act as a

neutral arbiter and carefully scrutinize the State's proposed findings to ensure that

they accurately reflect the record of a case can unnecessarily complicate that

Court's independent review. Reed, 271 S. W.3d at 729; See also Ex parte

Simpson, 136 S.W.3d 660,668 (Tex. Crim. App. 2004)(emphasizing importance

of convicting court's role in habeas proceedings). The United States Supreme

Court has also criticized courts for "their verbatim adoption of findings of fact

prepared by prevailing parties/' Anderson v. Bessemer City, 470 U.S. 564, 572

( 1985), and has recently remanded such a case for further review of the procedures

by which such a decision was made. Jefferson v. Upton, 560 U.S. 284,

294(20 I O)(remanding for determination whether state court factual findings

warranted presumption of correctness).

· Page 13 of 51

The practice of convicting qourts simply adopting the State's proposed

Findings and Conclusions completely, or almost completely, is not unique to the

370111 District Court of Hidalgo County, but is prevalent across this State: See Ex

parte Christopher Chubasco Wilkins, Tarrant County, WR-75~229-01 (findings

signed on December 22, 201 0); Ex parte Steven Anthony Butler, Harris County,

WR-41,121-02 (findings signed on February 28, 20I2); Ex parte Cortne Robinson,

Harrison County, WR-81,583-01 (findings signed on Aug. 25, 2014); Ex parte

Mark Soliz, Johnson County, WR-82,429-01 (findings signed on Nov. 6, 2014);

Ex parte Garland Harper, Harris County, WR-81,576-01 (findings signed on Dec.

II , 20 14) and Ex parte Gary Green, Dallas County, WR-81 ,575-0 1 (findings

signed on Dec. 31, 20 14).

This practice undermines the principle that the Texas courts should provide

an impartial and independent system for review of convictions and sentences. It

also defies the statutory instructio~ that "Every provision relating to the writ of

habeas corpus shall be most favorably construed in order to give effect to the

remedy, and protect the rights of the person seeking relief under it." TEX. CODE.

CRIM. PROC. Art. 11.04. Furthermore, it results in a denial of due course of law

under Art. I, s. 19 of the Texas Constitution, especially given that the Texas

habeas statute specifically mandates protection of"the rights of the person seeking

. Page 14 of 51

relief," and also denies due process under the United States Constitution.

Moreover, the relevant Findings and Conclusions signed by the Court do

not suggest that they have been the subject of careful scrutiny. In fact the content

of its 63 7 pages is sometimes jumbled, with for example, a brief discussion of the

law pertaining to Ground for Relief 14 inserted between a 16-page narrative

concerning the Court of Criminal Appeals' recent case law on TEX. R. Evm.

606(b), at pp. 511-527, and discussion of Grounds for Relief 4-6 concerning

outside influences on the jury, to which TEX. R. Evm. 606(b) is pertinent, at pp.

528-530. Between pages 332 and 584 there are 252 pages of text discussing

multiple grounds for relief, unrelieved by a single subheading, and frequently

discussing either the facts or the law without even explaining to the reader which

ground for relief is being dealt with.

Some examples of the many respects in which these largely State-drafted

findings did not merit the Court's signature are given below, specifically in regard

to Applicant's allegation that counsel rendered ineffective assistance at the

sentencing phase of his trial:

a) Unwarranted Reliance on Trial Counsel's "Credibility".

The Findings and Conclusions rely throughout on the rote recitation of the

word "credible" to describe trial counsel's testimony and on their attribution of

Page 15 of 51

strategic reasons for their actions and inactions. They fail, however, to address

whether counsel's explanation of their "strategies" and actions in fact

demonstrated "reasonable professional assistance," given contradictory facts in the

record. Strickland v. Washington, 466 U.S. 668, 689-690 (1984). Even if counsel

were "credible" in the sense that the Court believed them to be sincere, and even if

their explanations, taken in isolation, sounded facially plausible, it is imperative

that any court reviewing a claim of ineffective assistance should come to a

determination based on the totality of the facts of the individual case. /d.

As discussed further in the sections below, there are irreconcilable

discrepancies between counsel's- particularly lead counsel's- assertions and

actions at Applicant's trial, assertions during the evidentiary hearing and the other

facts and evidence available to counsel. For example, the Findings and

Conclusions state that trial counsel did not want to introduce psychological reports

created during Applicant's adolescence because he wanted to avoid the jury

hearing of"Applicant's anti-social behavior and his gang involvement." Para. 407

at 463-64; para. 26, 29 at 590-91; para. 48 at 596-97. However, lead counsel

himself at trial referred to Applicant as "enforc[ing] things that maybe - that

definitely were anti-social," 35 RR 9, and the jury heard copious evidence of

Applicant's gang involvement during the guilt phase of trial, rendering counsel's

Page 16 of 51

subsequent explanation illogical.

b) Failure to Investigate and Present Evidence in Mitigation of Sentence.

The Findings and Conclusions are contradictory in that they quote, for

example, the American Bar Association Guidelines for the Performance of

Counsel in Death Penalty Cases (Rev. Ed. 2003 ), 31 HOFSTRA L. REV. 913 (2003)

advocating that counsel should retain an investigator, a mitigation specialist and

other professional expertise and conduct a "comprehensive pretrial investigation."

Findings and Conclusions at pp. 402-03, but then endorse counsel's failure to

retain a mitigation specialist, p. 461, and to simply conduct an investigation

himself in the short time available before the trial commenced. The Findings and

Conclusions in fact assert that trial counsel were fully prepared for Applicant's

capital murder trial and sentencing, para. 11, p. 586, despite counsel's preparation

having consisted almost entirely of reading the State's file, speaking to Applicant

and some family members, and performing legal research. Para. 12, p. 587. This

flies in the face of many of the authorities set out in the Findings and Conclusions

at, e.g., pp. 402-420 and 491-510, including the ABA guidelines and Strickland v.

Washington, 466 U.S. 668, 706 (1986)("[C]ounsel's general duty to investigate ...

takes on supreme importance to a defendant in the context of developing

mitigating evidence to present to a judge or jury considering the sentence of

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death"); Wiggins v. Smith, 539 U.S. 510,537 (2003)(counsel ineffective for failing

to investigate and present mitigating evidence of petitioner's life history);

Williams v. Taylor, 529 U.S. 362 (2000), Rompilla v. Beard, 545 U.S. 374, 382

(2005) and Ex parte Gonzalez, 204 S.W.3d 391,393-400 (Tex. Crim. App.

2006)(Cochran, J., concurring), which demonstrate the importance of an

independent, thorough and extensive investigation in a capital case.4

The Findings and Conclusions claim that trial counsel had "valid reasons"

for not obtaining the services of a mitigation specialist including lead counsel's

belief that he could do his own mitigation investigation, his assertion that there

was not that much mitigation evidence available and that he had spoken to

Applicant, Applicant's family and "church people," and that Applicant had denied

having problems with his father other than neglect. They also describe as "valid"

counsel's choice to simply tell the family members they interviewed that they

needed to know about "problems," "mental issues" or any other types of issues.

Para. 16, 17,46 and, p. 587-88, 596. This ignores the copious mitigation evidence

that was in fact readily available and was presented in these Art. 11.071

4

Given that the Court sat on the committee that oversaw the creation of the State Bar of

Texas Guidelines and Standards for Texas Capital Counsel, Texas Bar Joumal966-982

(November 2006) which largely mirror the ABA guidelines, the Findings and Conclusions'

endorsement of trial counsel's minimalist investigation as ''thorough" provides additional ground

to conclude that these statements are not the product of a neutral arbiter carefully scrutinizing a

proposed order to ensure an accurate reflection of the record and application of legal principles.

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proceedings. It again ignores the very case law and guidelines cited by the State

itself in these Findings and Conclusions, which undennine the Findings and

Conclusions' description of counsel's investigation as "thorough." Para.

17 at p. 588.

The discrepancies between the assertions oflead counsel that Applicant's

family had failed to tell him significant infonnation, or had given him different

infonnation from that contained in their later affidavits, p. 462, should have been

given little weight: Lead counsel testified that he had asked Applicant's mother

and family only indirectly about "problems" affecting applicant, and

acknowledged that people are sometimes embarrassed or slow to disclose

embarrassing things in their background, and that people with alcohol problems

may not necessarily recognize them as such. 2 EHRR 125-130. His cocounsel,

Keno Vasquez recalled that counsel had met the family in a group, with counsel

sometimes taking an individual family member aside. 3 EHRR 59. He recalled

lead counsel asking the family to talk about Applicant's childhood, but did not

.

recall any specific questioning about sexual abuse, substance abuse, or about

Applicant being suicidal, neglected by his mother or exposed to trauma other than

the murder he had witnessed. 3 EHRR 28-29. While Keno Vasquez' affidavit of

February 8, 2013 indicates, "Discussed everything with Defendant and family," in

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response to a question about whether these and other specific topics were

investigated, Affidavit at p. 15, his hearing testimony clarified that these specific

'

topics were in fact not discussed. Indeed, Mr. Vasquez, who made it clear in both

his hearing testimony and his affidavit that Mr. Martinez had had primary

responsibility for the case, stated that had he been lead counsel, he would have

looked closer into everything possible and explored issues such as Applicant being

left alone by his mother. 3 EHRR 30-32.

Lead counsel claimed during the hearing that Applicant's family had

conveyed to him that Applicant h~d a "nice, warm happy home," 2 EHRR 118,

and that Applicant's mother, who counsel relied on as their primary source of

mitigation information, was "a great mom," 2 EHRR 242, who calmly handled the

pressure of having a son facing the death penalty. 2 EHRR 122. Those assertions

are belied by Applicant's psychological reports and TYC records, by the multiple

affidavits of family members and others describing Applicant's mother's poor

parenting, and by counsel's own statement to the jury that Lydia Garza was a

"deficient" and neglectful mother. 35 RR 8. Moreover, an ordained minister,

Salomon A vii a, describes Applicant's mother as "in a bad way" and "extremely

stressed and fearful," prior to her son's trial. Exhibit 42 at 3-4. The Findings and

Conclusions then condone as reasonable counsel's unquestioning acceptance of

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statements made by Applicant's family members about his having had a good and

happy upbringing, and denial or silence concerning familial alcohol related

problems and Applicant's suicide attempts Para. 20-21, p. 589. That this reliance

was unreasonable is demonstrated by the copious evidence that would have been

available to counsel had they used a qualified and competent mitigation specialist

to review records and thoroughly interview an appropriate range of witnesses

extending beyond Applicant's immediate maternal family.

Applicant and his family may have failed to volunteer information, or not

have been perfectly accurate or co~sistent in what they told counsel, but that does

not automatically excuse counsel's failings. Counsel had no mental health

training and no capital mitigation investigation experience and failed to hire

anyone who could supplement those deficiencies. Preparation time was severely

limited, but counsel did not move for sufficient additional time, and did not have

conducted the kind of repeated, in-depth one-on-one interviews, informed by

training and prior records review, that might have been more fruitful. See, e.g.,

State v. Herring, _ _ N.E.3d _·, 2014 Ohio 5228, 2014 Ohio LEXIS 3074 *51-

52 (Ohio December 3, 2014)(defendant's failure to be forthcoming did not excuse

trial counsel from conducting a mitigation investigation).

The conclusions, para. 34-36, p. 593, attribute strategic validity to the

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supposed decisions by counsel not to present evidence that Applicant's mother

neglected him in favor of her boyfriend, or that she had taken into her home a

violent adult male criminal who was later shot in front of Applicant. The

justification for these decisions is asserted as being that Applicant's mother had

denied exposing her son to negative influences, had claimed to be a good mother,

which was what counsel wanted the jury to hear and that she had failed to mention

the shooting. This "strategic" explanation is undermined by the fact that counsel

themselves described Applicant's mother as "deficient" and as having both

"spoiled" and "neglected him because of her relationships," 35 RR 7-8, but failed

to substantiate those assertions. Moreover, presenting Applicant as being the child

of a good mother would logically fail to explain the negative and criminal

trajectory of his life as being the product of his upbringing rather than simply the

result of his own voluntary choices. As the affidavits provided in support of the

writ application demonstrate, Applicant's mother did consistently give priority to

her husband and boyfriends rather than her child, failed to protect him, exposed

him to a wide range of criminal behavior and left him to his own devices for days

or weeks at a time when he was as young as ten or eleven. See, e.g., Applicant's

Exhibits 4, 13 and 15, Affidavits of Lydia Garza at 6, Jennifer Cavazos at 4,

Juanita Matthews at 2. The mere fact that, in conversation with counsel,

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Applicant's mother might have had told them she had not left Applicant alone and

was a "good mother," 2 EHRR 126, cannot excuse their failure to investigate

further.

Moreover, counsel's claim that Applicant's mother did not tell them about

the shooting is not credible: She and the widow of the deceased were friends, 35

RR 91, there was no reason Applicant's mother would have withheld the

information, which she states that she did give to counsel- See Affidavit of Lydia

Garza, Exhibit 4 at para. 81, and counsel elsewhere admitted that Applicant's

mother had identified for them which witnesses they should call. 2 EHRR 274.

That the Findings and Conclusions's characterization of counsel's decision-

making as based on valid strategy and a thorough mitigation investigation is

illogical is further demonstrated by their treatment of Applicant's report of

concerns, as a teenager, of"being pushed into sex." Para. 23, p. 590. The State's

Findings and Conclusions claim that counsel was right not to present evidence on

that issue because of damaging facts contained in the same report in which that

concern was mentioned. See App~icant's Exhibit 18, Report of Dr. L.R. Fricke, p.

2. This ignores two facts: (1) that counsel never even asked their own client to

explain what he had meant when he spoke of being "pushed into sex," 2 EHRR

132-34, and (2) that information in such reports can simply provide a basis for

Page 23 of 51

other investigation without actually being introduced into evidence. Given that

counsel did not give Applicant's statement even enough thought to simply ask him

what he had been talking about, which might have allowed them to discover, e.g.

the sexual abuse Applicant had experienced during his childhood- see, e.g.,

Applicant's Exhibit 10, Affidavit of Edna Wilma Garza- their decision not to

pursue that investigative avenue, or present a more expansive mitigation case,

should not be dignified as the pursuit of a valid strategy.

c) Mental Health Evidence and Use of Experts.

The Findings and Conclusions purport to validate trial counsel's failure to

have Applicant evaluated by a mental health professional because Applicant and

his family supposedly said he had no mental health issues and because counsel -

who had no training in the field of mental health - recognized no indication of

such problems. Para. 18, 20, 25, 27, p. 588-91. The conclusions state that

counsel were reasonable to rely on their personal belief that Applicant was

intelligent and their lack of perception that he had any problems. Para. 19, 27 p.

588-89, 591. Psychological reports, which had been disclosed by the State, put

counsel on actual notice that Applicant's mental health had caused prior evaluators

serious concern, not least because of the consequences of his witnessing the

murder of a family friend - a fact that counsel themselves identified as sufficiently

Page 24 of 51

important to Applicant's development to have presented evidence of it at

sentencing. See Applicant's Exhibit 18 (TYC Psychological Evaluations}; 35 RR

80-95, Testimony of Blanca Cortez.

Paras. 27, 28, 47, p. 591, 596, of the Findings and Conclusions state that

counsel were reasonable to rely on what was said by Applicant and his family

members, in deciding that Application had no mental health issues and that his

mother was a "great mother," and a constant and supportive presence in his life

with no alcohol-related issues, because they had no reason not to believe what

they were told. Again, this assertion is obviously illogical when Applicanfs

psychological reports and TYC records are actually taken into account: they

demonstrate a troubled upbringing by a neglectful mother and recommendations

that Applicant receive further testing and treatment for problems that were already

evident. See Applicant's Exhibit 18. Counsel had no reason to disbelieve the

reports and records but did not investigate or follow up on this independent source

material in any way. Rather, counsel claimed to have accepted what they were

told by family members at face value even when what they were told was

contradicted by the earlier reports; prepared by mental health professionals, and by

the records compiled by TYC case workers.

In a notable contradiction of the conclusions in paras. 28 and 47, discussed

Page25 of 51

above, the conclusion at para. 52, p. 598, states that counsel "properly relied" on

information received from Applicant and his family that Applicant's mother had

not wanted him, had tried to terminate her pregnancy with him, and had left him to

fend for himself as a child, that there was severe substance abuse within the

family, and that Applicant had attempted suicide by cutting his wrist, and had

emotional problems and depression and abused drugs. There is no indication in

the trial record whatsoever reflecting that counsel relied on this information in any

way, and the inherent contradictions among the various paragraphs of the State-

drafted Findings and Conclusions are irreconcilable.

The Findings and Conclusions describe as a "valid strategic decision"

counsel's decision not to utilize any experts "for fear that doing so would open the

door to the prosecution's use of hypothetical situations that would emphasize

Applicant's gang involvement and [admitted) extraneous offenses." Para. 19, 29,

p. 588, 591. The characterization as "valid" and "strategic" is absurd: Counsel

did not explain what the feared "hypotheticals" might consist of other than

references to guns or gangs, 2 EHRR 167-68, factors ofwhich the jury would have

been aware from the guilt phase evidence. Nor did they explain how the State

could further emphasize Applicant's gang involvement and extraneous offenses

which formed a large part of the guilt phase evidence. This conclusion also

Page 26 of 51

ignores the fact that it is possible to use experts to assist in case preparation

without necessarily choosing to call them to testify, and that such consultation has

been deemed a sine qua non of capital representation: See Commentary to ABA

Guidelines, The Defense Team and Supporting Services: Guideline 4.1 which

states that "mental health experts are essential to defending capital cases ...

creating a competent and reliable mental health evaluation consistent with

prevailing standards of practice is a time consuming and expensive process.

Counsel must compile extensive historical data, as well as obtaining a thorough

physical and neurological examination."

Similarly, the Findings and Conclusions excuse as a valid strategy counsel's

failure to present evidence of Applicant's post-traumatic stress disorder and

depression because the reports from which counsel would have known of those

mental disorders contained material about Applicant carrying a gun and having

engaged in "anti-social behavior." Paras. 25-26, 48, pp. 590-591, pp.596-97.

Leaving aside that the reports themselves need not necessarily have been

introduced into evidence, the jury in fact became aware, at and before sentencing,

of just such negative information about Applicant. What trial counsel failed to

provide to the jury was any coherent explanation of why Applicant had developed

as he had. Failing to provide such an explanation because of what counsel

Page 27 of 51

declared was a concern about introducing damaging material was an inadequate

response to the State's case which was already laden with negative information. 5

Indeed, Applicant's undesirable practice of carrying a gun could have been readily

explained had the jury been informed about his troubled background, not least that

it was the father for whom Applicant "yearned," according to trial counsel, 35 RR

7, who had constantly exposed Applicant as a child to firearms, drug-trafficking

and many other undesirable influences and activities. See Applicant's Exhibits 39,

40, 41, 43 Affidavits of George Morales, Eddie Garza, David Garza, Raul Herrera,

Jr.

d) Gang Evidence and Applicant's Statements.

The Findings and Conclusions assert that "Trial counsel also made a valid

stregic (sic) decision to keep evidence of Applicant's alleged gang involvement

and drug involvement out of Applicant's case." Para. 15, p. 587. This overlooks

the State's guilt phase presentation of comprehensive evidence of those very facts,

see, e.g., 30RR 154-65,31 RR 1-2,31 RR53-67,31 RR 70-91;31 RR209-17,31

RR 200-25, 32 RR 1-20, and that defense counsel themselves established, during

5

As the Tennessee Supreme Court recently remarked, in a case reversed for ineffective

assistance in a capital sentencing: "Counsel held in their hands compelling evidence that [the

Applicant) has a broken brain and a tragic past ... [t]he evidence from [Applicant's] mental health

records held little to demean him further in the jury's eyes. However, it had great potential to

explain the invisible mental machinations that made him behave this way." Davidson v. State,

_ S.W.3d _ , 2014 Tenn. LEXIS 918 * 42-44 (Tenn. Nov. 17, 2014).

Page 28 of 51

the guilt phase, that the Texas Syndicate is a gang, 31 RR 129, and that

Applicant's imprisoned father, was a founder member of the Texas Syndicate, 31

RR 213, which information counsel had the same witness repeat on cross-

examination, 32 RR 34. Counsel then referred to the same facts in his punishment

phase opening. 3 5 RR 7.

The conclusion that counsel were reasonable to bring out that Applicant's

father was a negative influence but without actually investigating or "emphasizing

said matters," para. 30-31, 33 p. 592, for fear of bringing out information about the

father's previous convictions and gang activities, is another lapse in logic that

should not be upheld. Given that counsel did not know in advance what

Applicant's father's criminal reco~d consisted of, or what was in his records, their

"know-nothing" approach of not even investigating that background information

cannot be deemed "strategic." Moreover, as explained above, the jury was made

aware that Applicant's father was a founder of the Texas Syndicate gang, and the

evidence of Applicant's own gang involvement was comprehensively presented to

the jury during the trial on the merits. Counsel otherwise described Applicant's

father to the jury as " a violent man, extensive involvement," 35 RR 7, but

without further explanation or evidence. Further explanation of the early

influences at play in Applicant's life would have helped to demonstrate that

Page 29 of 51

Applicant's criminal activities were attributable in large part to the absence of any

positive role model or other support in his early life.

This Court should also reject the conclusion that trial counsel made a valid

strategic decision not to introduce evidence about Applicant's father because "they

had not wanted any gang evidence in this case and had instead wanted to limit this

case to the statement which Applicant had made and to argue that there was not

enough to prove the case," Para. 33, p. 592-93. Applicant's statement was the

very source of much ofthe evidence ofhis gang involvement. It had been

introduced at the guilt phase through the testimony of Detective Alvarez, 30 RR

154- I 66, 31 RR 1-204; Agent Bukowski, 31 RR 205-26, 32 RR 20-53, and

Detective Ochoa, 32 RR 54-185, and Applicant's admissions had presumably been

accepted by the jury that had now convicted Applicant. It was not logically or

legally possible to ask the jwy to ignore that evidence for the purpose of

sentencing. What was therefore relevant for trial counsel would have been to try

to mitigate Applicant's sentence. Evidence of a dysfunctional family background

and early exposure to criminal activities is precisely the kind of evidence that has

typically been viewed as mitigating, see, e.g., Sears v. Upton, 561 U.S. 945, _ ,

130 S.Ct. 3259,3264 (20IO)(counsel ineffective for failure to introduce evidence

of abusive upbringing and that petitioner's brother introduced him to life of crime)

Page 30 of 51

and trial counsel's failure to investigate and present such evidence cannot be

justified by concerns that would only have been pertinent at the outset of the guilt

phase.

The conclusion stating that it was sound strategy for counsel to rely at

sentencing on a theory that the State had not proved its case beyond reasonable

doubt, para. 49, p. 597, is similarly insupportable. Indeed, this conclusion stands

in marked contrast to that in para. 56, p. 599, which declares, "The record of

Applicant's case demonstrates that the jury had made a finding, based on the

evidence, that Applicant was a major participant in the killings involved and had

thus rejected any claim that Applicant's role had merely been peripheral." This

Court should have rejected these essentially contradictory conclusions.

e) Use of Applicant's Prison Records.

The conclusion that failing to challenge evidence of Applicant's

disciplinary violations in prison was a "valid strategic decision" because the

evidence would have been admitted anyway, Para. 37, p. 593-94, cannot stand.

Logically, a total absence of disciplinary violations suggests that an inmate is less

dangerous than one who has only some violations. Therefore, in the context of a

capital sentencing, the goal shoulct have been to exclude all such evidence, rather

than to fail altogether to challenge it. At least one argument for exclusion existed:

Page 31 of 51

the Confrontation Clause. See Russeau v. State, 171 S.W.3d 871, 880-81 (Tex.

Crim. App. 2005)(Confrontation Clause violated when State did not show that

prison officials were unavailable to testify and defendant had no opportunity to

cross-examine them concerning their testimonial statements). Moreover, contrary

to counsel's other asserted justification for their failure to challenge the evidence,

.

the violations in question included violent acts, among them a stabbing. State's

Exhibits 430, 440A.

The Findings and Conclusions also state that counsel were implementing a

"valid strategic decision" in not presenting prison records including certificates

that presented Applicant in a positive light as humorous and well-liked and as

having completed courses in prison, for fear of the State introducing "unfavorable

aspects" of Applicant's prison life'. Para. 39, p. 594. However, counsel had

actually tried, but failed, to introduce the certificates through Applicant's mother,

35 RR 135- 6, undermining their claim of"strategy." Moreover, the purported

"strategy" was groundless when the State had already introduced into evidence

Applicant's prison disciplinary record and parole file, counsel could not identify

any further negative incident that was not in the record, and could have introduced

the records under the business records exception to the hearsay rule. 2 EHRR

172-78.

Page 32 of 51

Further examples of conclusions that should not be approved by this Court

are at para. 38, p. 602, which asserts that counsel made a sound decision not to call

"too many, witnesses, including family witnesses, because they might mention

other incidents or extraneous offenses involving Applicant. Trial counsel did not,

however, point to any such actual incident or offense. Moreover, their belief that

Applicant's statement "absolved" him of intent to commit the murders, Para. 38, p.

594, was misplaced, given that the jury had just found him guilty of the murders.

That counsel "felt" that the jury would not give the death penalty even if it

convicted Applicant, Para. 38, p. 594, also does not represent a sound strategy: a

"feeling" is simply not a strategy that justifies limiting the investigation and

evidentiary presentation in a case involving a six-victim homicide.

The Findings and Conclusions assert that trial counsel made a valid

strategic decision to argue that Applicant had experienced a religious conversion.

Para. 14, p. 587. There was, however, no evidence to support that argument. The

hearing testimony oflead counsel that Applicant's religious devotion had changed

over time is simply not borne out by the trial record or other evidence. While

counsel claimed that he presented evidence of a jailhouse conversion, that was

apparently based on such conversions being "a generally accepted phenomena

(sic) that I personally believe in, but occurs in the minds of the jurors, who might

Page 33 of 51

3) The Convicting Court denied Applicant an Adequate Opportunity to

Develop the Faetual Basis for His Grounds of Relief Because of the

Court's Consistent Failure to Provide Timely and Adequate Funding

with Which Applicant Could Develop His Case.

Successive counsel representing Applicant on both Direct Appeal and in

these Habeas Corpus proceedings attempted from the earliest days_ following

Applicant's conviction and death sentence to obtain sufficient funding with which

to conduct a proper investigation relevant to both stages of Applicant's trial, and

concerning events occurring during the trial itself. The need for such funding was

particularly acute because the original attorney retained on Applicant's behalf,

Charles Banker, and the actual trial attorneys, Ralph R. Martinez and Librado

"Keno" Vasquez, failed to utilize any investigators, mitigation specialists or other

expert assistance in the preparation of Applicant's trial.

Subsequently, Applicant's Direct Appeal counsel, F. Alan Futrell, filed a

motion for investigative funding, seeking to investigate issues of juror misconduct

in connection with a potential Motion for New Trial, on April 5, 2005, less than

two weeks after Applicant was sentenced to death. I CR 982-92. The Convicting

Court did not rule on that Motion.

In due course, both former habeas counsel, John E. Wright, and current

habeas corpus counsel, the undersigned, filed numerous applications for

investigative funding and funding for expert services in order to develop

Page 35 of 51

Applicant's claims, repeated requests for rulings on those applications and

repeated requests for payment for the individuals involved. Those Applications

and requests to the trial court, most of which were made ex parte and under seal,

are herein incorporated by reference and include those filed on: May 11, 2005;

October 30, 2006; December 19, 2006; March 8, 2007; June 19, 2007; July 5,

2007; July 12, 2007; August 2, 2007; September 24, 2007; March 5, 2008; April

25, 2008; March 19, 2013; June 17, 2013; July 30, 2013; August 13, 2013;

November 7, 2013; January 21, 2014; April 28, 2014; May 2, 2014; June 12,

2014; July 22, 2014; July 24, 2014; August 12, 2014 and October 17, 2014.

This Court repeatedly failed to rule on the applications that were filed,

necessitating counsels' further written requests for rulings. Because former

counsel was located in Huntsville and the undersigned is located in Austin,

hundreds of miles from Hidalgo County, visiting the Court to try to obtain rulings

was logistically extremely difficult for counsel. Because of the difficulty in

obtaining funding from this Court, counsel for Applicant were obliged to resort to,

e.g., using volunteer law students to assist in interviewing and investigation (see,

e.g., Application for Funding of July 12, 2007, requesting expenses for student

investigators - no ruling obtained), and to conducting investigation themselves,

see, e.g., Ex parte letter to the Court filed on September 18,2013. Even such

Page 36 of 51

funding as could be obtained had to be justified in great and time-consuming

detail, see, e.g., Ex parte letter to the Court filed on December 10, 2013.

At one point, the Court of Criminal Appeals ordered this Court on April 7,

2014, to rule on all outstanding motions within thirty days. That was not done.

Ultimately, it was only after the hearing in this case, on September 9, 2014, that a

formal order denying then-outstanding requests for expert and investigative

assistance was entered. Another request for funding, filed on November 7, 2013,

and including a request funding for the mitigation specialist/investigator working

on the case was only granted in part, despite counsel's detailed explanation of the

work that remained to be done. Undersigned counsel attempted to make

incremental requests for funding, see, e.g., January 24, 2014, Unopposed Motion

for Extension of Time at 14, since her predecessor's request for larger amounts at

one time had not been ruled upon, let alone granted. Moreover, to try to ensure

that rulings were obtained, counsel visited the Court in person to discuss the

requested funding and present orders for signature, and sent repeated requests for

rulings on outstanding items. In many instances, counsel repeatedly sought

funding, but was unable to secure a prompt ruling, when the Court ruled at all.

When funding was granted it was generally in amounts smaller than those

requested, even where the need for the funding had been explained clearly and in

Page 37 of 51

Applicant's efforts to obtain sufficient funding for development of his case

were also discussed in Motions for Extensions of Time and Advisories filed on his

behalf in the Court of Criminal Appeals on December 28, 2012; June 21, 2013;

and January 21, 2014.

Because of counsel's inability to obtain necessary funding, the work

performed on behalf of Applicant fell far short of the comprehensive investigation

and development of his case mandated by caselaw, statute and relevant guidelines.

See January 24, 2014, Unopposed Motion for Extension of Time at 8-16.

Consequently, Applicant was unable to adequately investigate and to present

evidence that would assist in demonstrating entitlement to relief with regard to

non-record based claims in his Application, such as Grounds for Relief I and 3,

concerning trial counsel's ineffective assistance in preparing for and conducting

the sentencing phase of Applicant's trial; Grounds for Relief 4-6, concerning the

hostile atmosphere in the courtroom and the outside influences brought to bear on

Applicant's jury; Grounds for Relief 15-16, concerning trial counsel's failure to

investigate and prepare for the hearing on a Motion to Suppress Applicant's oral

~is convicting court failed entirely to pay the mitigation specialist who obtained the

original mitigation affidavits filed with the Application for Writ of Habeas Corpus in 2007~ and

subsequently again declined to pay that mitigation specialist when requested to do so by the

undersigned.

Page 38 of 51

statements, and Grounds for Relief 17-19, concerning trial counsel's failure to

investigate and litigate the admissibility of the testimony of the State's witnesses

concerning gang activities.

As explained in, inter alia, .Applicant's January 21, 2014, Unopposed

Motion for Extension of Time, and accompanying Ex Parte Advisory to the Court,

comprehensive investigation is necessary in capital cases, both at trial and in

habeas corpus proceedings, and the availability of adequate funding appears to

have a direct correlation with the likelihood of success in capital litigation.

Applicant's ability to prevail in this litigation was compromised throughout by the

Court's refusal to provide such funding or to timely rule on motions for funding.

Applicant therefore objects to this Court's entry of these Findings of Fact and

Conclusions ofLaw and Recommendation.

Page 39 of 51

4) The Convicting Court Rendered the Proceedings Unfair by Refusing to

Admit the Reports of Expert Witnesses Who Were Unable to Testify

Solely Because of The Timing Limitations Imposed upon this Case.

Of great importance to Applicant's sentencing case was the issue of the

impainnent to his mental functioning brought about by his mother's alcohol use

while he was in utero. In order to·demonstrate the role that his mother's alcohol

use had played in his mental and personal development, Applicant unsuccessfully

sought the admission into evidence of his Exhibits 34-36, the reports of experts

neuropsychologist Paul D. Connor, Ph.D., psychiatrist Richard S. Adler, M.D.,

and psychologist Natalie Novick Brown, Ph.D. Those experts had evaluated

Applicant following the suggestion of Dr. Craig Henderson, a psychologist who

interviewed Applicant in 2007 and recommended a comprehensive

neuropsychological evaluation. See Exhibit 22. Dr. Henderson had suggested that

Applicant might have a Fetal Alcohol Spectrum Disorder (FASD), given his

mother's alcohol consumption during pregnancy and his previous psychological

test results. Dr. Richard Adler did subsequently diagnose such a disorder in

Applicant, and the excluded reports explain the nature ofF ASDs, the factors that

led to the diagnosis being made, and the impact of Applicant's FASD on his life

trajectory and choices.

Applicant filed the reports of Drs. Adler, Brown and Connor, along with

Page 40 of 51

other exhibits, on May 27,2014. Although it had indicated that it would stipulate

the admissibility of numerous other exhibits, the State of Texas did not state until

it wrote a letter to undersigned counsel dated July 23,2014, that it would not

stipulate to the admissibility of these reports.

The State indicated in its letter that it was not agreeing to stipulate the

expert reports because it would have no opportunity to cross-examine the experts

concerning their qualifications, their methodology or the validity of their work,

and because it believed that it had been given insufficient notice of the subject

matter of their reports.

The Court having set a date for an evidentiary hearing commencing August

6, 2014, Applicant's counsel checked the available dates on which the experts in

question could testify. None of them were available at all before the beginning of

October 2014, and the earliest date on which one of them would be available was

mid-December 2014. 2 EHRR 26. The three experts were unable to testify at the

live evidentiary hearing conducted on August 6-7, 20 14, solely because their prior

professional commitments prevented them from testifying until after a deadline

imposed by the Court of Criminal Appeals in an Order of July 18, 2014, requiring

that Applicant's case be completed and forwarded to that Court on or before

Page 41 of 51

August 31, 2014. 7 Thus, because of the incompatibility of that time constraint and

the availability of his experts, Applicant was unable to call them to testify.

The Court heard arguments concerning the admissibility of the reports

during the hearing conducted on August 6-7, 20 14, 2 EHRR 26 - 47, and

subsequently permitted the parties to file submissions concerning admissibility. 3

EHRR 65-69. The State argued for the first time in its post-hearing briefing that:

(a) The reports failed to demonstrate that the experts were relying on the

proper application of the methods involved in their field;

(b) The reports failed "to assert that the tests conducted were normed to

the population of either South Texas or to prison populations or death

row inmates in particular;"

(c) The reports were "hearsay without exception," citing TEX. R. EVJD.

802-804.

The Court initially signed an Order on August 29, 2014, holding the reports

to be inadmissible on two grounds: (1) that the third prong of the criteria for

admissibility set out in Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App.

1998) was not met, i.e., that Applicant had not established that the experts's

reports properly relied upon and/or utilized the principles involved in their field

'Counsel for the parties were obliged to file two joint motions in the Court of Criminal

Appeals, seeking additional time for the preparation of the proposed Findings and Conclusions

which were ultimately filed on September 30, 2014. Then, in response to a letter request for

additional time filed by the Convicting Court on October 13, 2014, the Court of Criminal

Appeals eventually extended the time for completion of the case to November 13,2014. The

proposed findings of fact and conclusio~s of law and the record of these proceedings have not

been filed in the Court of Criminal Appeals as oftoday's date, March 19, 2015.

Page 42 of 51

and (2) that the State would not have an opportunity to cross-examine the experts.

Having reviewed Applicant's subsequently filed Motion to Reconsider

Admissibility of Expert Reports and supporting materials, the Court later

acknowledged that the criteria for admissibility under TEX. R. EVID. 702 and

Nenno had been met, but still declined to admit the reports into evidence because

to do so denied the State the opportunity for cross-examination of these three

experts. However, the State never suggested any actual flaw in these experts'

credential, nor any Jack of relevant expertise, or shortcoming in the reports that

they produced, other than querying whether the tests utilized in evaluating

Applicant were normed on appropriate populations. That concern was

subsequently addressed in an affidavit from Dr. Connor, dated August 26, 2014,

and was not referred to by the Court when it declined to admit the expert reports.

Thus, significant expert reports concerning potentially mitigating evidence

in Applicant's case were excluded solely because of the Court of Criminal

Appeals' deadline.

a) Affidavit Testimony is Admissible in Habeas Corpus Proceedings

A trial court has discretion to admit affidavit evidence in TEX. CODE CRIM.

PROC. Art. 11.071 proceedings. Under Art. 11.071 § 9(a) it may admit affidavits,

depositions and interrogatories, and has wide latitude as to the means of resolving

Page 43 of 51

the issues in the case. See, e.g., Ex parte Fierro, 934 S.W.2d 370, 371 (Tex.

Crim. App. 1996)(considering evidence obtained by means ofLetters Rogatory).

Thus, the admission of these reports was well within the Court's discretionary

powers, and the state failed to identify any substantive flaw in their reasoning or

methodology, the results arrived at or their creators' credentials.

b) Notice of Expert Testimony

The State claimed a lack of notice concerning the reports. However, the

topic of"Fetal Alcohol Syndrome~' was specifically raised in the July 17, 2007,

Report of Craig Henderson Ph.D., filed as Exhibit 22 to Applicant's 2007

Application for Writ of Habeas Corpus, and in which Dr. Henderson

recommended "a comprehensive neuropsychological evaluation," in light of

Applicant's mother's alcohol consumption during pregnancy and of Applicant's

school records and previous psychological testing. Familial alcohol and substance

abuse are mentioned in Claim Three of the Application itself and in supporting

affidavits, together with a statement from former counsel for Applicant John E

Wright at p. 70, that he had filed applications for funding for expert and

investigative assistance. As Mr. Wright stated, such funding was needed in order

to enable Applicant to fully present his claim.

The Henderson report similarly makes reference to depression/dysthymic

Page 44 of 51

disorder, Post Traumatic Stress Disorder and trauma, all concepts developed in the

three more recent expert reports. Thus, the State had notice that those issues were

likely to be further developed in Applicant's case.

The State has been aware since late 2012 that undersigned counsel was

working on the case and was also aware that Applicant had sought extensions of

time in which to develop support for the Application. However, the State did not,

at any point prior to the filing of the three expert reports on May 27,2014, seek to

discover what expert testimony might be in preparation.

Under TEX. CODE CRJM. PROC. Art. 39.14(b) counsel may move for the

court for an order for their adversary to disclose the name and address of potential

experts, not later than the 201h date before a trial begins. The State made no

equivalent request in this case, and had notice prior to the hearing - exceeding by

three times the 20 day period set out in the rule- of these experts' names, their

contact details and the actual substance of their testimony.

Even at the time of the hearing, the State had apparently made no effort to

enlist any expert assistance of its own to formulate a substantive critique of, or

challenge to, the three expert reports. It suggested absolutely no specific

shortcoming in these experts' work other than their supposed failure to

demonstrate that they were relying on the proper application of the methods

Page 45 of 51

involved in their field when they assessed Applicant, and that their reports did not

assert that the tests conducted were normed to specific populations - a supposed

shortcoming whose relevance the State failed entirely to explain and which the

Court rejected when it ultimately ruled that the Nenno criteria were satisfied.

Thus, the State's protestation of lack of sufficient notice should be disregarded.

c) An Expert Opinion May be Supported by Hearsay Evidence

TEX. R. EVID. 703 states that, "If of a type reasonably relied upon by experts

in the particular field in forming opinions or inferences upon the subject, the facts

or data need not be admissible in evidence." Thus, these expert reports were not

inadmissible because they are based on information and data narrated or created

by people other than the experts in question.

Moreover, the United States Supreme Court has affirmed that state hearsay

rules must not be applied mechanistically to exclude reliable hearsay evidence so

as to defeat the ends of justice. In Sears v. Upton, 561 U.S. 945, _ , 130 S.Ct. at

3263 n.6 (20 10), the applicant presented evidence, both lay and expert, concerning

head trauma, substance abuse and traumatic experiences, in addition to evidence

that Sears' brother introduced him to a life of crime. Although some of this

evidence was hearsay, that did not undermine its probative value or admissibility

in terms of sentencing.

Page 46 of 51

The evidence in Sears was rightfully not excluded by strict operation of

hearsay provisions, but admitted, considered and given effect owing to its possible

relevance when assessing counsel's deficiency. ld. at 3262-3264. The Supreme

Court noted that the exclusion ofl)ighly relevant evidence on a critical issue in the

punishment phase of trial may violate due process, regardless of state evidentiary

rules. See also Chambers v. Mississippi, 410 U.S. 284,302 (1973); Green v.

Georgia, 442 U.S. 95,97 (1979). Similarly here, the critical question ofwhether

counsel provided effective representation at sentencing in this capital case

militates in favor of admission, and proper consideration, of these reports. 8

This position is supported by state law also: TEX. CODE CRIM. PROC. Art.

11.04 states: "Every provision relating to the writ of habeas corpus shall be most

favorably construed in order to give effect to the remedy, and protect the rights of

the person seeking relief under it." Likewise, in a capital sentencing, the court

may admit "any matter that the court deems relevant to sentence," so long as that

is consistent with the Constitutions of the United States and of the State ofTexas.

TEX. CODE CRIM. PROC. Art. 37.071§ 2(a)(l). The Court should therefore have

8

It should be noted that the three experts stated in their supplemental affidavits that the

materials on which they relied are of exactly the type that are relied on by other professionals in

their fields, demonstrating that they were following the same methods used by equivalent

professionals and that reliance on e.g. affidavits from family members is considered reasonable

in their respective fields.

Page 47 of 51

exercised its discretion under Art. 11.071 § 9(a) to admit these reports.

Applicant had the burden of proof in this TEX. CODE CRIM. PROC. Art.

11.071 proceeding to prove not only that his attorney's performance was deficient,

but that he was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668,

687-88 (1984). These exhibits were a component part ofhis mitigation case,

reflecting what could and should have been presented at trial, and he now

therefore reargues the admission of the reports either on remand to the Convicting

Court or in the Court of Criminal Appeals. Applicant objects to the unfairness of

the Convicting Court's ruling, and particularly so because the Convicting Court

entered Findings of Fact and Conclusions of Law that do not recommend relief on

Applicant's Ground for ReliefThtee, concerning the ineffective assistance of trial

counsel in preparing and presenting mitigating evidence.

While the progress of this case has been protracted, and it is now nearly ten

years since Applicant was sentenced to death in March 2005, it bears noting that

half of that time period is attributable to the failure of the State of Texas to file an

Answer to his Application, which was timely filed on July 19, 2007. The State's

Answer was not filed until November 12, 2012, over five years later, and only

after the Court of Criminal Appeals, on August I, 2012, had ordered this Court to

resolve remaining issues and conclude the case. Since taking over Applicant's

Page48 of 51

case upon the withdrawal of original State Habeas Counsel, undersigned counsel

worked diligently to ensure proper factual development of the case, which

included repeated attempts to obtain adequate funding for further investigation as

well as the assistance of experts, creating further delays.

The content of the reports themselves demonstrates that Mr. Garza suffers

from a condition created while he was in his mother's womb that caused life-long

adaptive impairments and susceptibility to other mental disorders, while the same

condition rendered him likely to be a low-risk inmate in the highly structured

environment of prison, especially as he grows older. See, e.g., Exhibit 36, Report

of Dr. Natalie Novick Brown at 32-43.

Applicant hereby renews his objection to the arbitrary exclusion of this

significant evidence due to factors for which he should bear no responsibility.

Such a result does not comport with the due process requirement that the fact-

finding procedures be adequate for reaching reasonably correct results, Ex parte

Davila, 530 S.W.2d 543, 545 (Tex. Crim. App. 1975), or with the statutory

mandate that "[e]very provision relating to the writ of habeas corpus shall be most

favorably construed in order to give effect to the remedy, and protect the rights of

the person seeking relief under it." TEX. CODE CRIM. PROC. Art. 11.04.

Page49 of 51

CONCLUSION.

Applicant Humberto Garza, by and through counsel, therefore respectfully

'

requests that this Honorable Cout1 withdraw its Order of February 12, 2015,

entering Findings of Fact and Conclusions of Law (hereafter "Findings and

Conclusions) and containing a recommendation denying habeas corpus relief, and,

taking into account the following objections, withdraw the Order of February 12,

2015, recuse itself and request the assignment of a different judge to preside over

renewed proceedings or, in the alternative enter revised Findings of Fact and

Conclusions ofLaw and recommend relief.

Respectfully submitted,

HILARY SHEARD

Texas Bar# 50511187

7301 Burnet Road,# l 02-328

Austin, TX 78757

Phone: (512) 524 1371

Fax: (512) 646 7067

HilarySheard@Hotmai l.com

Counsel for Hwnberto Garza Ill, Applicant.

Page 50 of 51

CERTIFICATE OF SERVICE

I certify that on March 19, 2015, a copy of the foregoing pleading was served by

U.S. Mail and electronically via www.efileTexas.gov on:

Theodore C. Hake, Esq.

Assistant Criminal District Attorney

Hidalgo County Courthouse

I 00 N. Closner, Room 303

Edinburg, Texas 78539.

Ted.Hake@da.co.hidalgo.tx.us

Michael W. Morris, Esq.

Assistant Criminal District Attorney

Office of the District Attorney

Hidalgo County Com1house

I 00 N. Closner

Edinburg, TX 78539

Michael.Monis@da.co.hidalgo.tx.us

Hilmy Sheard.

ATTACHMENT

Petition for Writ of Mandamus

filed in the Court of Criminal Appeals

July 9, 2014

No._________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

IN RE HUMBERTO GARZA III,

Relator

v.

RON. J.R. "BOBBY" FLORES, PRESIDING JUDGE,

139TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS

Respondent

PETITION FOR WRIT OF MANDAMUS

AND MOTION FOR STAY OF PROCEEDINGS

IN THE 370'b DISTRICT COURT OF

HIDALGO COUNTY, TEXAS

HILARY SHEARD

Texas Bar# 505 I 1187

7301 Burnet Road,# 102-328

Austin, TX 78757

Phone: (512) 524 1371

Fax: (512) 646 7067

HilazySheard@Hotmail.com

Counsel for Relator.

IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. APP. P. 52.3(a), a complete list of the names of all

interested parties and counsel is provided below so that the members of this

Honorable Court may at once determine whether they are disqualified to serve or

should recuse themselves from participating in the decision of the case.

Relator:

Humberto Garza III, TDCJ-ID # 999495

TDCJ Polunsky Unit

3872 FM 350 South

Livingston, TX 7735 I

Counsel for Relator:

Hilary Sheard

730 I Burnet Road, # I 02-328

Austin, TX 78757

Phone: (512) 524 137I

Fax: (5I2) 646 7067

Respondent:

Hon. J .R. "Bobby" Flores

Presiding Judge

I391h District Court of Hidalgo County, Texas

Hidalgo County Courthouse

I 00 N. Closner, pt Floor

Edinburg, TX 78539 1

1

The Hon. J.R. "Bobby" Flores is the Presiding Judge of the I 39th District

Court of Hidalgo County, Texas. In this matter, he was sitting by assignment to

decide a Motion to Recuse filed by Relator Humberto Garza III in Cause No. CR-

3175-04-G(l), currently pending in the 370th Judicial District Court of Hidalgo

County.

-i-

Counsel for the State of Texas in this matter:

Rene Guerra, Esq.

District Attorney of Hidalgo County

Theodore C. Hake, Esq.

Michael W. Morris, Esq.

Assistant Criminal District Attorneys

Office of the District Attorney

Hidalgo County Courthouse

100 N. Closner

Edinburg, TX 78539.

-II-

TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .................................................................. i

TABLE OF CONTENTS ........................................................................................... iii

INDEX OF AUTHORITIES ...................................................................................... v

CONTENTS OF THE APPENDIX ......................................................................... xi

STATEMENT OF THE CASE ................................................................................ xii

STATEMENT OF JURISDICTION........................................................................xiii

ISSUE PRESENTED ............................................................................................... xiv

STATEMENT OF FACTS ........................................................................................ !

ARGUMENT AND AUTHORITIES ..................... :................................................... l2

I. THE WRIT OF MANDAMUS ..................................................................... 12

II. CLEAR ENTITLEMENT TO RELIEF ........................................................ 12

A. A REASONABLE PERSON, KNOWING THE FACTS OF THIS

CASE, WOULD REASONABLY DOUBT JUDGE GONZALEZ'S

ABILITY TO ADJUDICATE THE RELEVANT CLAIMS

IMPARTIALLY.................................................................................. 14

1. The Legal Standard for Deciding Whether a Judge's Impartiality

Might Reasonably Be Questioned ........................ 14

2. The Reasons Why Judge Gonzalez's Impartiality Might

Reasonably Be Questioned in this Case ................................... 16

-iii-

3. Any private communication or contact by a trial judge

with a juror during a trial is improper...................................... l7

4. Communication or contact by the trial bailiff with jurors

during a trial may be improper if it goes beyond what is

necessmy for the purpose of shepherding the jury................... 20

B. JUDGE GONZALEZ HAS PERSONAL KNOWLEDGE OF

DISPUTED EVIDENTIARY FACTS WHICH REQUIRE HIS

RECUSAL ..........................................................................................23

I. A Clear Entitlement to Relief Exists in these

Circumstances ...........................................................................25

2. That a Convicting Court Normally Has the Discretion to Use

Personal Recollection in Resolving Issues in a Habeas Proceeding

Does Not Alter the Conclusion That Judge Gonzalez May Not

Preside over this Case .............................. 28

III. NO ADEQUATE REMEDY AT LAW ........................................................ 32

I. Review of Denial of Recusal in the Context of Habeas

Corpus Proceedings .................................................................32

2. Awaiting Later Appeal or Review Is Not an Adequate

Remedy in the Context of this Case ...................................... .36

IV. A STAY OF THE PROCEEDINGS IN THE DISTRICT COURT

IS NECESSARY IN ORDER TO ENSURE THAT AN ADEQUATE

REMEDY IS AVAILABLE ......................................................................... 39

CONCLUSION........................................................................................................42

CERTIFICATION .................................................................................................... 43

CERTIFICATE OF SERVICE................................................................................44

·IV-

INDEX OF AUTHORITIES

FEDERAL CASES

Arizona v. Fulminante, 499 U.S. 279 ( 1991) .................................................... 12, 19

Brown v. Lynaugh, 843 F.2d 849, 850 (5th Cir. 1988)............................................. 24

Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009) ....................................... 12

Hoptv. Utah, 110 U.S. 574 (1884) ......................................................................... 19

Liteky v. United States, 510 U.S. 540 ( 1994) ...................................................passim

Presley v. Georgia, 558 U.S. 209 (2010) ............................................................... 20

Remmer v. United States, 347 U.S. 227 (1954) ...................................................... 17

Rose v. Mitchell, 443 U.S. 545 (1979) ..................................................................... 30

Rothgery v. Gillespie County, 554 U.S. 191 (2008) ............................................... 19

Rushen v. Spain, 464 U.S. 114 (1983) .................................................................... 19

Skilling v. United States, 56 I U.S. 358 (20 I 0) ........................................................ 19

Starr v. United States, 153 U.S. 614 ( 1894)............................................................ 17

Townsend v. Sain, 372 U.S. 293 (1963) ................................................................ .30

Tumey v. Ohio, 273 U.S. 510 (1927) ...................................................................... 12

United States v. United States Gypsum Co. eta/., 438 U.S. 422 ( 1978) ............... 17

Ward v. Hall, 592 F.3d I I44 (1 Itb Cir. 20IO) ......................................................... 20

Wellons v. Hall, 558 U.S. 220 (2010) ..................................................................... 30

-v-

TEXAS CASES

Abdygapparova v. State, 243 S. W .3d 191 (Tex. App. -San Antonio 2007) ........ 14, 27

Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) ........................................... 18

Brown v. Lynaugh, 843 F .2d 849 (5th Cir. 1988) ..................................................... 24

Buntion v. Harmon, 827 S. W.2d 945 (Tex. Crim. App. 1992) .......................... passim

Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296,

150 S. W.2d 3 77 (Tex. 1941 ) ................................................................................... 35

Ex parte Byars, 176 S. W.3d 841 (Tex. Crim. App. 2005) ..................................... 30

Ex parte Davila, 530 S. W.2d 543 (Tex. Crim. App. 1975) ................................ 29,31

Ex parte Ellis, 275 S.W.3d 109 (Tex. App.- Austin 2008, no pet.) ......................27

Ex parte Galvan, 770 S. W.2d 822 (Tex. Crim. App. 1989) ................................... 34

Ex parte Humberto Garza, No. WR-78,113-01

(Unpublished Order of April 7, 2014) .................................................................. .39

Ex parte Roundtree, No. WR-74,550-01,

201 1 Tex. Crim. App. Unpub. LEXIS 249 (Tex. Crim. App. 2011) ..................... 33

Ex parte Van Alstyne, 239 S.W.3d 815 (Tex. Crim. App. 2007) ........................... 34

Ex parte Simpson, 136 S.W.3d 660 (Tex. Crim. App. 2004) ................................. 38

ExparteSinegar, 324 S.W.3d 578 (Tex. Crim. App. 2010)........................... 13,33, 34

Gaal v. State, 332 S. W.3d 448 (Tex. Crim. App. 2011 ) ....................................... passim

Garza v. State, No. AP-75,217 (Tex. Crim. App. April 30, 2008) ........................... !

-vi-

Gentry v. State, No. 06-05-00237-CR, 2006 Tex. App. LEXIS 2923

(Tex. App.- Texarkana 2006, no pet.) ................................................................. 24, 26

Green v. State, 374 S.W.3d 434 (Tex. Crim. App. 2012) ....................................... 35

Hensarlingv. State, 829 S.W.2d 168 (Tex. Crim. App. 1992)............................ 23, 25

Keene Corp. v. Rogers, 863 S.W.2d 168 (Tex. App.- Texarkana 1993, no writ) .. 21

Kemp v. State, 846 S. W.2d 289 (Tex. Crim. App. 1992) ....................................... 24

Kniatt v. State, 239 S. W.3d 910 (Tex. Crim. App. 2007) ........................................ 15

Lagrone v. State, 84 Tex. Crim. 609, 209 S. W. 411 (Tex. Crim. App. 1919) ......... 18

Lueg v. Lueg, 976 S.W.2d 308 (Tex. App.- Corpus Christi 1998, pet. denied) .....21

Mattox v. United States, 146 U.S. 140 (1892) ........................................................20

McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983)............................ .32, 35

McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012) ............................... 18

Neveu v. Culver, 105 S.W.3d 641 (Tex. Crim. App. 2003) ..................................... 12

North East Independent School Dist. v. Aldridge,

400 S. W.2d 893 (Tex. 1966).................................................................................... 35

0 'Quinn v. Hall, 77 S. W.3d 438 (Tex. App.- Corpus Christi 2002, no pet. )......22, 24

0 'Quinn v. Hall, 77 S. W.3d 452 (Tex. App. - Corpus Christi 2002) ..................... 22

Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Crim. App. 2003) ............................. xiii

Parker v. Gladden, 385 U.S. 363( 1966) .................................................................. 20

Perkins v. Court ofAppeals, 738 S. W.2d 276 (Tex. Crim. App. 1987) ................. 38

-vii-

Simmons v. State, 55 Tex. Crim. 441, 117 S. W.2d 141 (Tex. Crim. App. 1909).... 18

Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987) ....................................... 36

Sommers v. Concepcion, 20 S.W.3d 27

(Tex. Crim. App.- Houston [141h Dist.] 2000, pet. denied) .................................... 31

State ex rei. Hill v. Fifth Court ofAppeals, .34 S. W.3d 924

(Tex. Crim. App. 2001) ...................................................................................... 12, 26

State ex rei. Millsap v. Lozano, 692 S.W.2d 470 (Tex. Crim. App. 1985) ........... .41

State ex ref. Rosenthal v. Poe, 98 S.W.3d 194 (Tex. Crim. App. 2003) ................. 12

State ex rei Wade v. Mays, 689 S.W.2d 893, 899 (Tex. Crim. App. 1985)............. 12

Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989)........................... 36,37

Thi Van Lev. Perkins, 700 S.W.2d 768, 776) (Tex. App.- Austin 1985) ............. 38

Thomas v. Stevenson, 561 S.W.2d 845 (Tex. Crim. App. 1978) ............................... xiii

Woodruffv. Wright, 51 S.W.3d 727 (Tex. App.- Texarkana 2001, pet. denied) ... 21

TEXAS CONSTITUTION

TEX. CON ST. Art. V, § 5(c) ................................................................................... xiii

TEXAS STATUTES

TEX. CODE CRIM. PROC. Art. 4.04 ....................................................................... xiii

TEX. CODE CRIM. PROC. Art. 11.07 ........................................................................29

TEX. CODE CRIM. PROC. Art. 11.071 .............................................................. passim

-vm-

TEX. CODE CRIM. PROC. Art. 30.01 .......................................................................... 13

TEX. CODE CRIM. PROC. Art 36.22 ..................................................................... 20,31

TEX. CODE CRIM. PROC. Art 36.23 .......................................................................... 20

TEX. CODE CRIM. PROC. Art 36.24 ..........................................................................20

TEX. CODECRIM. PROC. Art. 36.27 ........................................................................ 19,31

TEX. CODE CRIM. PROC. Art. 37.071 ........................................................................ 16

TEX. CODE CRIM. PROC. Art. 38.05 .......................................................................... 19

TEX. CODE JUD. CONDUCT, Canon 3(B)(8) ............................................................. 19

TEXAS RULES

TEX. R. APP. P. 52 ........................................................................................... passim

TEX. R. APP. P. 72.1 ......•••••••••••••••••...•..••••••••••••••...•••••••••••••••...•••••••••••...•••••••.•••.••••• Xlll

...

TEX. R. APP. P. 73.4 ................................................................................................ 34

TEX. R. CIV. P. 18a ...........................................................................................pass1m

TEX.

.

R. CIV. P. 18b .. ..... ... ...... ..... .... ...... .... .... ...... .... .......... ..... .... ....... .... ...... .....pass1m

TEX. R. EVID. 605 .............................................................................................. 23 ,25

TEX. R. EVID. 606(b) ............................................................................................... 16

-ix-

OTHER AUTHORITIES

48B Robert P. Schuwerk & Lillian B. Hardwick, Texas Practice Series: Handbook

ofTexas Lawyer and Judicial Ethics 40:26 (2010) ................................................ 15

Goode, Wellborn and Sharlot, Texas Rules ofEvidence: Civil and Criminal, 33 Texas

Practice 605 .I ............................................................................................... 25

-x-

CONTENTS OF THE APPENDIX

An Appendix is filed herewith, pursuant to TEX. R. APP. P. 52.3(k).

Necessary Contents:

Exhibit A Order Denying Applicant's Motion to Recuse 370th District

Court Judge Noe Gonzalez

Exhibit B TEX. R. CIV. P. l8a

Exhibit C TEX. R. CJV. P. 18b

Exhibit D TEX. CODE CRIM. PROC. Art. 11.071.

Optional Contents:

Exhibit E Applicant's Brief in Support of Applicant's Motion for Court

to be Recused

Exhibit F State's Memorandum in Response to Applicant's Motion to

Recuse 370'h District Court Judge Noe Gonzalez

Exhibit G Applicant's Motion for Court to Recuse Itself

Exhibit H Transcript: Excerpt of Proceedings from Hearing on

Applicant's Motion for Court to Recuse Itself, June 16, 2014

Exhibit I Affidavit of Rose Marie Palacios, May 19, 2014

Exhibit J Affidavit of Rose Marie Vera, July 14, 2007

Exhibit K Affidavit of Melissa Guerrero, July 14, 2007

Exhibit L July 7, 2014, Letter of Assistant District Attorney Theodore C.

Hake to the Hon. Noe Gonzalez

-xi-

STATEMENT OF THE CASE

This is a petition for writ of mandamus against the Respondent, Hon. J .R.

"Bobby" Flores, of the 139th District Court of Hidalgo County, Texas, arising out

of a motion to recuse the presidingjudge ofthe 370th District Court of Hidalgo

County, Hon. Noe Gonzalez, in a capital habeas corpus proceeding filed pursuant

to TEX. CODE CRIM. PROC. Art.§ 11.071.

The Relator seeks an order commanding the Respondent to vacate his Order

Denying Applicant's Motion to Recuse 370th District Court Judge Noe Gonzalez,

signed and entered on July 3rd, 2014, and to enter an Order recusing Judge

Gonzalez.

The Relator also seeks a temporary stay of the proceedings in the 370th

District Court, in order to permit this Court to resolve the issues presented in this

petition.

-xii-

STATEMENT OF JURISDICTION

Jurisdiction of this Honorable Court is invoked pursuant to TEX. CON ST.

Art. V, § S(c); TEX. CODE CRIM. PROC. Art. 4.04, § 1; TEX. R. APP. P. 72.1; and

TEX. R. APP. P. 52. Thomas v. Stevenson, 561 S.W.2d 845, 847 (Tex. Crim. App.

1978)(amendment of TEX. CONST. Art. V, § 5(c) provides this Court with power to

grant extraordinary writs in cases regarding criminal matters).

When a court of appeals and the Court of Criminal Appeals have

concurrent, original jurisdiction over a petition for a writ of mandamus against the

judge of a district or county court, the petition should be presented first to the

court of appeals, unless there is a compelling reason not to do so. Padilla v.

McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003). This petition is being

presented to this Court in the first instance because this Court has sole jurisdiction

over the appeal and review death penalty cases, of which this is one. See TEX.

CODE CRIM. PROC. Art. 4.04, § 2; TEX. CODE CRIM. PROC. Art. 11.071. Moreover,

the Court has previously ordered that the underlying case be expeditiously

concluded. See Order of April7, 2014 in Ex parte Humberto Garza, No. WR-

78, 113-0 1. Were this petition to be filed in the Thirteenth Court of Appeals, there

is the likelihood that the matter would still be brought to this Court in due course,

consuming additional time.

-xiii-

ISSUE PRESENTED

The Respondent judge denied a motion to recuse the judge presiding over

an application for writ of habeas corpus, filed in a capital case pursuant to TEX.

CODE CRIM. PROC. Art. 11.071. The judge presiding over the application was the

convicting court at trial. The habeas application contained allegations of"jury

misconduct, including the exposure of the jury to outside influences."

Further investigation of the case, conducted prior to a scheduled evidentiary

hearing revealed that former jurors would testify that both Judge Gonzalez and his

bailiff engaged in off-the-record communications with the jury during the trial, in

the jury room, and outside the presence of counsel or the defendant. The subject

matter of the communications included the concern ofjury members about their

personal safety in this gang-related case in which the jury was required to answer

the "future dangerousness" special issue, TEX. CODE CRIM. PROC. Art. 37.071.

The basis for the motion to recuse was that, in the circumstances of this case

Judge Gonzalez's ability to adjudicate impartially a ground for relief concerning

his own and his bailiffs conduct "might reasonably be questioned," and that "the

judge has personal knowledge of disputed evidentiary facts concerning the

proceeding", TEX. R. CIV. P. 18b (b)(l) and (3).

Humberto Garza had a right to a trial where the jury only made its decisions

-xiv-

on the basis of evidence developed from the witness stand in a public courtroom,

in his personal presence and with the full protection of his rights of confrontation,

of cross-examination, and of counsel. Given the governing legal standards and the

record as developed, Mr. Garza has a clear entitlement to relief from this Court,

and would have no adequate remedy on appeal.

The intervention of this Court is therefore necessary in this extraordinary

situation in order to avert the continuation of a habeas proceeding that would

inevitably have to be remanded later for renewed proceedings before a different

judge.

An immediate stay ofthe proceedings in the trial court is also sought in

order to permit this Court to resolve the issues presented in this petition, and for

Mr. Garza to be able to actually receive the reliefrequested, namely that the

habeas proceedings should only continue before a different judge.

-xv-

STATEMENT OF FACTS

Humberto Garza was convicted of capital murder in the 3 70th Judicial

District Court of Hidalgo County, Texas, Judge Noe Gonzalez presiding, and

sentenced to death on March 24, 2005. Both the conviction and sentence of death

was affirmed on direct appeal. Garza v. State, No. AP-75,217 (Tex. Crim. App.

April 30, 2008)(not designated for publication).

A timely Application for Writ of Habeas Corpus was filed on July 19, 2007.

On November 13, 2012, the Hidalgo County District Attorney's Office filed its

Answer to the Writ Application. Claims Five and Six of the Application alleged

that Mr. Garza's death sentence resulted from jury misconduct, including the

exposure of the jury to outside influences. 2

An affidavit of juror Rose Marie Vera, submitted as Exhibit 26 to the

Application, indicated that the trial judge had "warned us that sometimes gang

members come after the jury," and that the bailiff had told the jury that the judge

always carried a gun. 3

2

Claims Five and Six are virtually identical and were not argued separately

within the Application.

3

Applicant was alleged to be a leader of the "Tri-City Bombers" gang, and

was charged with carrying out a six-victim robbery-homicide along with other

gang members.

-1-

Ms. Vera's affidavit, which was obtained by volunteer law students, did not

specify whether the comment made by the judge about gangs was made in open

court (it does not appear on the record), when that comment was made and in what

circumstances, what the bailiffs name was, what were the circumstances in which

the bailiff was talking to the jury about the judge, when the bailiff told the jury

that the judge carried a gun, or what the influence of the judge and bailiffs

comments had been on Ms. Vera's sentencing decision.

Mr. Garza's original habeas corpus counsel, John Wright, withdrew and

undersigned counsel was appointed in his place on November 9, 2012.

Undersigned counsel subsequently obtained funding to further investigate and

develop the grounds for relief pleaded in Mr. Garza's habeas application.

On April 7, 2014, this Court entered an order directing the trial court to rule

on any outstanding motions in the case within 30 days and to resolve any

outstanding issues within 90 days. On May 14, 2014, the trial court set a hearing

date of June 9, 2014. In the meantime, investigation on behalfofMr. Garza

continued. 4

4

As stated at the recusal hearing on June 16, 2014, it has only been possible

to interview some, but not all, of the trial jurors in this case because of the

difficulty that undersigned and former counsel experienced in obtaining necessary

investigative funding.

-2-

Further information and clarification about the communications between the

jury, Judge Gonzalez and his bailiffwas obtained during an interview of juror

Rose Marie Vera, now known as Rose Marie Palacios. Ms. Palacios signed a new

affidavit stating that both Judge Gonzalez and his bailiff had engaged in

communications with the jury in the jury room, and outside the presence of

counsel, during which the statements mentioned in her earlier affidavit were made.

A motion asking Judge Gonzalez to recuse himself was therefore filed on

May 27, 2014.5 Judge Gonzalez declined to recuse himself, and referred this

matter to the Regional Presiding Judge, who assigned the case to the Hon J.R.

"Bobby" Flores of the 139111 District Court ofHidalgo County.

A hearing was conducted on June 16, 2014. 6 Three witnesses testified:

former jurors Rose Marie Palacios and Melissa Guerrero were called on behalf of

Mr. Garza; the trial bailiff, Alicia "Licha" Salinas, was called by the State. Judge

Flores also took judicial notice of the contents of the court file pertaining to the

case, which included affidavits from Rose Marie Palacios dated May 19, 2014 and,

under her former name, Rose Marie Vera, dated July 14,2007, and from Melissa

5

Ms. Vera reverted to her maiden name ofPalacios after a divorce.

6

A transcript of the testimony from the hearing is attached as Exhibit H.

-3-

Guerrero, dated July 14, 2007. 7

Rose Marie Palacios (formerly Vera).

Ms. Palacios testified that she had been a juror at Mr. Garza's 2005 trial.

RHR at 4. 8 She had had concerns for her personal safety during the trial, which

were caused by the other jurors, and by the judge saying that jurors could be in

danger, as well as by the evidence itself. RHR. at 4-5. She had thought she might

be followed or threatened. RHR. at 4. Her concerns were increased by an incident

where someone took photographs of the jury in court during the trial. RHR at 5.

The jurors had been asking "if we were safe because of the gang activity." They

were concerned about gang members' families being in the courtroom, and about

the taking of the photograph. RHR at 8. Ms. Palacios acknowledged that the

family members in the courtroom could have been family members of the victims

in the case, which involved gangs on both sides. RHR at 18.

The bailiff, who was a woman named Licha, told the jury members that they

would be safe because the judge carried a gun, but that made Mrs. Palacios more

nervous. RHR at 5, 9. Licha's comments were made in the jury room, not the

7

These exhibits are attached as Exhibits I-K.

8

Page references are to the transcript of the testimony prepared and provided

to the parties on June 17,2014, which is attached as Exhibit H. It is referred to

here as "RHR" (Recusal Hearing Record).

-4-

courtroom, and with all the jurors present. RHR at 5, 7. Some other jurors had

told Licha they hoped she was carrying a gun: "And she said no, she didn't, but

not to worry because the judge did." RHR at 6. Licha said that she never carried a

gun, RHR at 17. This conversation occurred during the trial, and before the jury

arrived at a guilty verdict. RHR at 8. Licha also said "that she would be surprised

if [the judge] bought us lunch because he was a cheapskate[.]" RHR at 9.

The judge came into the jury room to talk to the jurors about their safety

concerns. RHR at 10. Ms. Palacios believed that the judge came into the jury

room in response to a note from another member of the jury. RHR at I 0. That visit

by the Judge to the jury room was while the trial was still going on, and before the

guilty verdict. RHR at I 0. All twelve members of the jury were there, but she

could not remember if the bailiff was there also. RHR at II. The court reporter

may also have been present, but not the defendant or his attorneys, RHR at II. 9

Ms. Palacios did not remember Mr. Garza or any of the attorneys ever being

present in the jury room. RHR at 7-8. The judge had mentioned scheduling when

he talked to the jurors. RHR at 15.

Ms. Palacios testified that the judge said "That he understood our fears, but

9

The Reporter's Record filed by the court reporter at trial, the late Francisco

B. Moreno, does not include any transcript of proceedings conducted in the jury

room.

-5-

... he was going to provide us security and that we would be fine ... That the gangs,

sometimes they threaten the jurors and sometimes they -they may follow you."

RHR at II. The judge did not give any specific examples of gangs disrupting

trials or threatening people. RHR at I6-I 7. The judge said that the person who

had taken a photograph in court was "legitimate." RHR at II. He said that it was a

courthouse policy not to permit pictures ofjurors to be taken. RHR at I3-I4.

Mrs. Palacios thought that the judge may also have come into the jury room

another time, in response to a note. RHR at I2. Later in the trial, the jury had been

permitted to park on the west side of the courthouse, closer to the courtroom, and

the deputies had escorted the jurors. RHR at I4-15.

Mrs. Palacios had been interviewed about the case seven years ago by

people who said they were students from Austin, and she gave them an affidavit at

the time. RHR at I5-I6. Mrs. Palacios was asked additional questions when she

was interviewed a second time. RHR at I9. In her earlier affidavit, Mrs. Palacios

said she thought she saw Mr. Garza's mother sitting in a car out in the parking lot,

and the jury had been told by court staff that "they'd take care of the situation."

RHR at 16.

Ms. Palacios had not named the bailiff in her first affidavit, but she may not

have been asked for a name at that time. RHR at 20-21.

-6-

Melissa Guerrero

Ms. Guerrero testified that she was a juror at Mr. Garza's 2005 trial. RHR at

22-23. She had had concerns for her personal safety because of the crime in

question, which concerned gang violence, and was specifically concerned about

being followed. RHR at 23. There was an incident during the trial when a

reporter took a picture, which she herself did not see, but which worried other

jurors. RHR at 23. She believed that jurors had expressed concern to court staff

about the security situation. RHR at 24.

The judge had approached the jury in the jury room behind the courtroom

on the fifth or sixth day of trial. RHR at 24. He said that he had come to calm the

jury down, and that they would be parking in a different area from that point. RHR

at 25. She assumed that the change in parking arrangements was because of

security concerns. RHR at 25. When the judge spoke to the jurors, there was

nobody else in the room, other than the twelve of them. RHR at 25. The jurors

were told that they would be allowed to leave for their parking area before others

were released from court. RHR at 25-26.

Ms. Guerrero did not know if it was a regular policy to let people park close

by the courthouse after hours so that they did not have to walk across the street.

RHR at 29. She had assumed the change in parking arrangements was because of

-7-

the security situation. RHR at 30.

Ms. Guerrero could not remember any other remarks made by the judge, but

the conversation that did occur concerned security matters. RHR at 26. The

conversation was not about scheduling. RHR at 30. The judge also came to the

jury room after the trial to thank the jury and to provide information about

counseling. RHR at 31. Ms. Guerrero remembered that the bailiff in the case was

a woman, but did not recall any conversation with her about security

arrangements. RHR at 26-27.

Mrs Guerrero had signed an affidavit in 2007 in which she said nothing

about the judge going to the jury room. However, she had not been questioned

about that at the time. RHR at 27-28. She had been visited in the past few days by

defense counsel, together with another woman. RHR at 28. On cross-examination,

Ms. Guerrero said that defense counsel had not suggested what Ms. Guerrero

should say, other than telling her to be honest. RHR at 31.

She had been interviewed by two people in 2007, one of whom may have

been a lawyer, or they may have been law students. RHR at 32. The questions

asked more recently were in greater depth than on the previous occasion. RHR at

32. She may not have given further information in 2007 about her security

concerns because she was not asked at the time. RHR at 32. Also, time

-8-

constraints may have prevented having a fuller conversation. RHR at 33.

Ms. Guerrero acknowledged that sentencing someone to death had been a

tough decision for her. RHR at 33-34.

Alicia "Licba" Salinas

Ms. Salinas confirmed that her nickname is "Licha." RHR at 35. She has

worked in the 370th District Court of Hidalgo County for 12 years. Noe Gonzalez

has been judge of that court throughout that time. RHR at 35. She is now the court

coordinator, but was working as bailiff back in 2005. RHR at 35. Ms. Salinas

stated that she "sort of' remembered Mr. Garza's trial. RHR at 36.

Ms. Salinas testified that one does not have to be a certified peace officer to

be a bailiff. RHR at 36. She did not carry a gun when she was acting as a bailiff in

2005. RHR at 36. She did not remember telling anybody on the jury that Judge

Gonzalez carried a gun, and does not think she would have said that. RHR. at 36.

To her knowledge, Judge Gonzalez did not carry a gun back then. RHR at 36.

As a bailiff, Ms. Salinas would escort the jury and give them notice that

they were needed in the courtroom. RHR at 37. She might escort them to a

restaurant if lunch was not being brought in for the jury. RHR at 3 7. Jurors in the

370'h district court would park in the big courthouse parking lot or, if they were

working late, certain parking areas would be blocked off for them where there is

-9-

an entrance that goes right into the courtroom. RHR. at 37-38.

Ms. Salinas did not specifically remember any jurors expressing security

concerns during Mr. Garza's trial. RHR. at 38. If the jury had a note, they would

hand it to her to give to the judge so that the judge and lawyers could discuss the

response. RHR. at 38-39. Usually the judge would have a note handed back to the

jury, rather than bringing them back into the courtroom. RHR at 39.

While working at the 3 70th District Court, Ms. Salinas has performed the

functions of bailiff, interpreter and court coordinator. RHR at 39. She had been

approved for promotion to court coordinator, and has been in that position since

about February 2011. RHR at 39-40. The judge is her boss and writes her

performance reviews. RHR at 40. He would have some influence over whether

she would get an increase in salary. RHR at 40. She has worked for him for

twelve years. RHR. at 40. Her county job comes with benefits and a retirement

plan, and is a valuable thing to have. RHR at 40. She is a valued member of the

judge's staff and likes working where she does. RHR at 41.

Ms. Salinas' office is right next to the judge's chamber, so she is physically

very close to him - he can just call out and she is at his side in a minute. RHR at

41. Her name appears on court transcripts, together with that of the judge and the

attorneys. RHR at 41.

-10-

Ms. Salinas is aware that there is a Code of Ethics governing judicial

behavior, including rules about behaving with dignity and being impartial, and

that the judge's staff should follow those same rules. RHR at 41-42. She knows

that it would be undignified to gossip about cases. RHR at 42. She has had

training at officially-run court bailiff workshops. RHR at 42. She has been taught

what she should and should not do, with regard to not exposing the jury to

anything that might cause them to be prejudiced for one side or the other, other

than by the evidence. RHR at 42-43. She understands that she should not talk

about a case with the jury except in the presence of the judge and with his

permission, that there are rules about the judge not communicating with the jury

except in writing, and that breaking some of these rules can result in a fine or

confinement in jail, or in a case reversal or a mistrial. RHR at 43. She knows that

if she broke those rules she could lose her job or be demoted. RHR at 44.

She knows that the judge might lose his reputation if he allowed such

breaches of the rules, and that such breaches could cause negative comment in the

media, or reversal of a case which would also cause the judge a loss of reputation,

RHRat44.

-11-

ARGUMENT AND AUTHORITIES

I. THE WRIT OF MANDAMUS

Mandamus relief may be granted if the relator can demonstrate that: ( 1) the

act sought to be compelled is purely ministerial, and (2) that the relator has no

other adequate legal remedy. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim.

App. 2003)(citing State ex rei. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim.

App. 2003). The ministerial act requirement has been described as a requirement

that the relator have "a clear right to the relief sought" meaning that the relief

sought must be "clear and indisputable" such that its merits are "beyond dispute"

with "nothing left to the exercise of discretion or judgment." State ex rei. Hill v.

Fifth Court ofAppeals, 34 S.W.3d 924,927-28 (Tex. Crim. App. 200l)(citing

Buntion v. Harmon, 827 S.W.2d 945, 947 and 947 n. 2 (Tex. Crim. App. 1992);

State ex rei Wade v. Mays, 689 S.W.2d 893, 899 (Tex. Crim. App. 1985).

II. CLEAR ENTITLEMENT TO RELIEF

The right to an impartial judge is a fundamental one. Arizona v.

Fulminante, 499 U.S. 279, 308 (199l)(infraction of right to an impartial judge at

trial can never be treated as harmless error); Tumey v. Ohio, 273 U.S. 510, 535

( 1927)(due process right to impartial judge exists regardless of the strength of the

evidence); See also Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009).

-12-

Texas recusallaw provides protection for a litigant's right to an impartial

judge, providing for the disqualification of a judge who has an interest in the

subject matter of a case or is sufficiently closely related to any of the parties,

TEX. R. CIV. P. I8b(a)(2) and (3), and for the recusal of a judge for various reasons

that might have a bearing on the judge's ability to preside with fairness over a

case: TEX. R. CIV. P. 18b(b)(I )-(8). 10 This Court has recognized that the

protections ofTEX. R. CIV. P. I8a and I8b extends to criminal proceedings,

including habeas proceedings in the trial court: Gaal v. State, 332 S. W.3d 448,

452-3 n. I2 (Tex. Crim. App. 20 I I); Ex parte Sinegar, 324 S. W.3d 578, 58 I

(Tex. Crim. App. 20 I 0).

Mr. Garza sought recusal of Judge Gonzalez on two grounds under TEX. R.

CIV. P. 18b, namely that:

• "[T]he judge's impartiality might reasonably be questioned,"

TEX. R. CIV. P. I8b (b)(I); and

• "(T]he judge has personal knowledge of disputed evidentiary facts

concerning the proceeding", TEX. R. CIV. P. I 8b (b)(3 ). 11

10

See also TEX. CODE CRIM. PROC. Art. 30.0I (no judge may sit in criminal

case where he is the injured party, has been counsel to either party or is connected

to either the defendant or the complainant by consanguinity or affinity within the

third degree).

"No allegation of"personal bias or prejudice" under TEX. R. CIV. P. 18b

(b)(2) was made against Judge Gonzalez.

-13-

A. A REASONABLE PERSON, KNOWING THE FACTS OF THIS

CASE, WOULD REASONABLY DOUBT JUDGE

GONZALEZ'S ABILITY TO ADJUDICATE THE RELEVANT

CLAIMS IMPARTIALLY.

1. The Legal Standard for Deciding Whether a Judge's

Impartiality Might Reasonably Be Questioned.

Judges normally enjoy a presumption that they will perform their roles

impartially. Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.- San

Antonio 2007). That presumption may be rebutted. ld This Court's most recent

substantive decision concerning recusallaw in Texas, Gaa/ v. State, 332 S. W.3d

448, 453 (Tex. Crim. App. 2011), quoted the concurrence of Justice Kennedy,

joined by three other justices in Liteky v. United States, 510 U.S. 540, 557-58

(1994), in referring to the appearance of "an aversion, hostility or disposition of a

kind that a fair-minded person could not set aside " as being sufficient for a judge

to be recused for lack of impartiality. Justice Kennedy in Liteky also noted that

"[o]ne of the objects of law is the impartiality of its judges in fact and

appearance." Jd. (emphasis added).

In Gaal, this Court confirmed that there is no need for a party moving for

recusal on the basis of lack of impartiality to demonstrate what is going through a

trial judge's mind, or to prove actual bias: "Under [Rule 18b (b)(I)], showing that

the trial judge's impartiality 'might reasonably be questioned' suffices." /d. at

-14-

459.'2 In contrast, TEX. R. CIV. P. 18b (b)(2) requires a showing of actual bias, a

"personal bias or prejudice." Jd.

In Gaal, the Court referred to the standard applied by a recusal judge in

Kniatt v. State, 239 S.W.3d 910 (Tex. Crim. App. 2007), functionally very similar

to Justice Kennedy's position in Liteky, finding that recusal was required because:

A reasonable member of the public at large, witnessing [the trial

judge's] words and acts ... and knowing all the facts in the public

domain concerning the judge and the case, would have reasonably

believed he [acted adversely to the defendant], and [those facts]

would have caused such person to reasonably question, and to have a

reasonable doubt about, [the trial judge's] impartiality and objectivity

... in a subsequent hearing ....

Gaal, 332 S. W.3d at 455 n. 26; See also 48B Robert P. Schuwerk & Lillian

B. Hardwick, Texas Practice Series: Handbook of Texas Lawyer and Judicial

Ethics 40:26 at 770 (2010) (quoting Findings of Fact and Conclusions of Law,

State v. Kniatt, No. 25704-CR (40th Dist. Ct., Ellis County, Tex. Jan. 20, 2008).

Thus, the correct standard to be applied is simply that of TEX. R. CIV. P.

18b (b)( 1): Recusal is required if"[T]he judge's impartiality might reasonably be

questioned," because of a factor "of a kind that a fair-minded person could not set

aside when judging the dispute" and it is not necessary to come to a conclusion

12

Gaal was decided with reference to an earlier version of TEX. R. CIV. P.

18b, in which the paragraph numbering is different from the current version. The

text ofTEX. R. CIV. P. 18a and 18b appears in the Appendix as Exhibits Band C.

-15-

that the judge in question is, in fact, lacking in impartiality.

2. The Reasons Why Judge Gonzalez's Impartiality Might

Reasonably Be Qyestioned in this Case.

A reasonable member of the public would reasonably doubt Judge

Gonzalez's ability to be impartial in adjudicating the claims concerning jury

misconduct or, perhaps more accurately here, the impact of"outside influences"

improperly brought to bear on the jury . 13 In the hearing in Respondent's court,

jurors Palacios and Guerra testified that Judge Gonzalez had private discussions

with sitting jurors, outside the presence of the defendant, the court reporter or

counsel for either party. The discussions concerned the jury's personal safety, in

the context of a case whose subject matter concerned a six-victim homicide

resulting from the activities of members of a local street gang, of which Mr. Garza

was alleged to be a Captain. Moreover, this was a death penalty case in which the

question whether Mr. Garza "would commit criminal acts of violence that would

constitute a continuing threat to society," was one the jury would have to answer

at sentencing. See TEX. CODE CRIM. PROC. Art. 3 7.071 § 2 {b)(2).

In addition to making findings of fact concerning his own conduct in the

jury room, if he continues to preside over this case, Judge Gonzalez would be

13

See TEX. R. EVID. 606(b): "[A] juror may testify ... whether any outside

influence was improperly brought to bear upon any juror[.]"

-16-

required to make findings of fact concerning the conduct of his long-time

employee, "Licha" Salinas, who was his bailiff at the time. According to the

testifying jurors, Ms. Salinas had conversed with jury members who had expressed

concern for their safety telling them that the judge carried a gun. As explained

below, the conduct ofbothjudge and bailiff breached court rules and

constitutional safeguards and was improper. These facts would create the

perception in a reasonable person that Judge Gonzalez could not be expected to

adjudicate his own or his bailiffs behavior impartially.

3. Any private communication or contact by a trial judge

with a juror during a trial is improper.

"Any ex parte meeting or communication between the judge and ... jury is

pregnant with possibilities for error," United States v. United States Gypsum Co.

eta/., 438 U.S. 422,460 (1978), and may alone warrant reversal of a conviction.

ld. at 462; 14 see also Remmer v. United States, 347 U.S. 227 (1954):

In a criminal case, any private communication, contact, or tampering,

directly or indirectly, with a juror during a trial about the matter

pending before the jury is, for obvious reasons, deemed

presumptively prejudicial, if not made in pursuance of known rules of

the court and the instructions and directions of the court made during

14

"[I]t is obvious that under any system ofjury trials the influence of the trial

judge on the jury is necessarily and properly of great weight, and that his lightest

word or intimation is received with deference, and may prove controlling." Starr

v. United States, 153 U.S. 614, 626 (1894).

-17-

the trial, with full knowledge of the parties.

Remmer was recently cited by this Court in McQuarrie v. State, 380 S.W.3d

145, 166 n.24 (Tex. Crim. App. 2012)(reversing and remanding for further

proceedings where outside influence had potentially had impact on jury's verdict).

As noted by Judge Johnson in Blue v. State, 41 S. W.3d 129 (Tex. Crim. App.

2000)(plurality opinion):

More than eighty years ago, we stated that too much caution cannot

be exercised in the effort to avoid impressing the jury with the idea

that the court entertains any impressions of the case which he wishes

them to know, and putting before them matters which should not

enter into or affect their deliberations ... should in all cases be

avoided. To the jury the language and conduct of the trial court have

a special and peculiar weight. The law contemplates that the trial

judge shall maintain an attitude of impartiality throughout the trial.

Jurors are prone to seize with alacrity upon any conduct or language

of the trial judge which they may interpret as shedding light upon his

view of the weight of the evidence, or the merits of the issues

involved. The delicacy of the situation in which he is placed requires

that he be alert in his communications with the jury, not only to avoid

impressing them with any views that he has, but to avoid in his

manner and speech things that they may so interpret.

Blue, 41 S.W.3d at 131, quoting Lagrone v. State, 84 Tex. Crim. 609,209 S.W.

411,415 (Tex. Crim. App. 1919). 15

Texas statutory law prescribes how communication between a trial court

15

See also Simmons v. State, 55 Tex. Crim. 441, 117 S.W.2d 141, 143 (Tex.

Crim. App. 1909)("The trial judge is to the jury the Lord's anointed. His language

and his conduct have to them a special and peculiar weight.").

-18-

and a jury should be conducted: TEx. CODE CRIM. PROC. Art. 36.27 sets out a

regime whereby all communications from the jury to the court must be "written,

prepared by the foreman, and shall be submitted to the court through the bailiff'

with answers also being in writing and made, if possible, only after notice to the

defendant and counsel, giving the defense an opportunity to object. Any

instructions or answers to jury notes must be read out in open court, unless that is

expressly waived, and all such proceedings should be made part of the record. Id.

The trial court is specifically prohibited from "at any stage of the proceeding

previous to the return of the verdict [making] any remark calculated to convey to

the jury his opinion ofthe case." TEX. CODE CRIM. PROC. Art. 38.05. 16

Ex parte contacts between a trial judge and a jury may therefore infringe on

constitutional safeguards. In addition to the constitutional right to a fair trial

before an impartial judge, Fulminante, 499 U.S. at 309-10, and impartial jury,

Skilling v. United States, 561 U.S. 358, 377 (20 I 0), a defendant has the right to be

present in person,Rushen v. Spain, 464 U.S. 114, 118 (1983); Hoptv. Utah, 110

U.S. 574, 579-80 (1884), and to have the assistance of counsel, Rothgery v.

16

See also TEX. CODE JUD. CONDUCT, Canon 3(B)(8) {"A judge shall not

initiate, permit or consider ex parte communications outside the presence of the

parties between the judge and [court appointee] ... concerning the merits of a

pending or impending judicial proceeding.").

-19-

Gillespie County, 554 U.S. 191, 198 (2008), as well as having the right to a public

trial. Presley v. Georgia, 558 U.S. 209, 211-12 (2010). All of these rights are

jeopardized by ex parte and in camera communications by court officers with

jurors outside the presence of the defendant and his counsel.

4. Communication or contact by the trial bailiff with jurors

during a trial may be improper if it goes beyond what is

necessary for the purpose of shepherding the jury.

While the services of a bailiff are necessary to "attend the wants of the

jury," TEX. CODE CRIM. PROC. Art 36.24, communication with jurors about the

case on trial is impermissible, "except in the presence and by the permission of the

court." TEX. CODE CRIM. PROC. Art 36.22. Such communication may result in

confinement in jail or a fine. TEX. CODE CRIM. PROC. Art 36.23.

Comments made privately by a bailiff to jurors may infringe on the right to

be fairly tried only on the basis of evidence developed from the witness stand in a

public courtroom where there is full judicial protection of the defendant's right of

confrontation, of cross-examination, and of counsel. Parker v. Gladden, 385 U.S.

363, 365 ( 1966) (bailiffs improper comment to jurors that petitioner was a

"wicked fellow" required reversal); see also Mattox v. United States, 146 U.S. 140

( 1892)(conviction reversed because bailiff remarked to jury that this was third

person defendant had killed); Ward v. Hall, 592 F .3d 1144, 1173-81 (11th Cir.

-20-

20 10 )(petitioner's constitutional rights to fair trial and reliable sentence were

violated when bailiff responded improperly to juror question).

The fact that a Judge has a personal or business relationship with a

particular individual is not necessarily enough, in itself, to require recusal on the

ground of a lack of impartiality. See, e.g., Woodrujfv. Wright, 51 S.W.3d 727,

737-38 (Tex. App.- Texarkana 2001, pet. denied)(that doctor who was a party to

case had operated on judge's mother and colleague, and judge had conducted

doctor's wedding ceremony was insufficient to require recusal); Lueg v. Lueg,

976 S.W.2d 308, 309, 311 (Tex. App.- Corpus Christi 1998, pet. denied)(recusal

not mandated although attorney for party was representing judge in separate

lawsuit and was his fanner campaign manager).

However, in Keene Corp. v. Rogers, 863 S. W.2d 168 (Tex. App. -

Texarkana 1993, no writ) where the judge's son-in-law had become an associate at

one of the law finns involved in the case, but had no direct involvement in it, the

Texas Supreme Court held that each situation where an individual to whom a

judge has a personal connection is associated with a case "has to be detennined on

an ad hoc basis, considering such factors as whether and to what extent [that

person] is participating in the case and whether [they] will be substantially

affected by the outcome of the proceeding."

-21-

Here, the bailiff indicated in her hearing testimony that she has a long-

standing work relationship with the judge in question and is a valued employee

who he has promoted. She also acknowledged that both he and she could

experience adverse consequences as a result of a finding that her conduct had

jeopardized the outcome of a case. Thus, in this situation, the relationship

between judge and bailiff goes beyond the mere fact of employment. The court

that ultimately adjudicates the relevant claim will need to determine and evaluate

the actions of Ms. Salinas, a bailiff who has committed potentially punishable

misconduct, and who, given the close quarters in which the judge works with her,

may have knowledge of the judge's own conduct in this case.

A reasonable observer would conclude that in these circumstances, Judge

Gonzalez's ability to impartially adjudicate the allegations in the writ application

might reasonably be questioned, given that his own, and his bailiffs, conduct

departed from the normal standards of conduct with regard to sitting jurors.

The case ofO'Quinn v. Hall, 77 S.W.3d 438,447-48 (Tex. App.- Corpus

Christi 2002, no pet.) arose from the same court as Mr. Garza's case, and was also

presided over by the Hon. Noe Gonzalez, see 0 'Quinn v. Hall, 77 S. W.3d 452,

454 (Tex. App. - Corpus Christi 2002). In 0 'Quinn, there was a factual dispute

concerning the time when counsel received notice of an Order entered by Judge

-22-

Gonzalez and supposedly conveyed to counsel by the court staff. The Thirteenth

Court of Appeals rejected the idea that the judge could take judicial notice of what

had occurred, and held that the judge's reliance on evidence about a contested fact,

conveyed to him by his own staff, created an appearance of bias and lack of

impartiality. 77 S.W.3d at 448. The same concerns militate here in favor of

recusal.

B. JUDGE GONZALEZ HAS PERSONAL KNOWLEDGE OF

DISPUTED EVIDENTIARY FACTS WHICH REQUIRE HIS

RECUSAL.

The State of Texas, in its Answer to the Writ Application, disputed Mr.

Garza's claims of outside influences on the jury contending that they "are based on

factual premises of doubtful validity," /d. at 387. Thus, there are disputed factual

issues here that require that the case be adjudicated by a judge who is a "neutral

arbiter in the courtroom," Hensarling v. State, 829 S.W.2d 168, 171 (Tex. Crim.

App. 1992).

On the evidence developed thus far, Judge Gonzalez has knowledge of the

existence - or non-existence - of facts concerning at least his own conduct and

possibly that of a valued employee - his bailiff- also. It is therefore very possible

that he will be called as a witness, which cannot be done while he is still presiding

over the case. See TEX. R. EVID. 605: "The Judge presiding at the trial may not

-23-

testify in that trial as a witness."

Whether or not he testifies, for Judge Gonzalez to continue to preside over

this case, at minimum, "give[s] the appearance of the court becoming a witness in

this matter" and risks creating "the appearance of bias which Rule 605 seeks to

prevent." O'Quinn, 77 S.W.3d at 447-48. See also Brown v. Lynaugh, 843 F.2d

849, 850 (5th Cir. 1988)("1t is difficult to see how the neutral role of the court

could be more compromised, or more blurred with the prosecutor's role, than

when the judge serves as a witness for the state.").

In the analogous case of Gentry v. State, No. 06-05-00237-CR, 2006 Tex.

App. LEXIS 2923 (Tex. App.- Texarkana 2006, no pet.) the court held that a

judge could not decide the outcome of a suppression hearing where he may

himself have observed the conduct leading to initial detention, and explicitly ruled

on his personal knowledge of the sequence of events. The court noted that a lack

of impartiality on the part of a trial judge deprives a defendant of due process,

citing Kemp v. State, 846 S. W.2d 289, 305-06 (Tex. Crim. App. 1992). The facts

of Gent1y were described as a "clear instance" of"personal knowledge of disputed

evidentiary facts," by this Court in Gaal, 332 S.W.3d at 454. Similarly, the facts

here, concerning both Judge Gonzalez's own conduct and possibly that of his

bailiff also, provide another "clear instance" of critical facts of a case being

-24-

personally known to a judge, who therefore cannot continue to preside.

Hensarling v. State, 829 S.W.2d 168, 171 (Tex. Crim. App. 1992), a case

where the judge who had presided at trial testified at a retrospective competency

hearing, noted the practical difficulties that would occur should a presiding judge

attempt to testify as a witness in the same proceeding, and which underline why

such an endeavor is infeasible, quoting Goode, Wellborn and Sharlot, Texas Rules

ofEvidence: Civil and Criminal, 33 Texas Practice 605.1, p. 384:

A judge who testifies, for example, might be required to evaluate his

own testimony in the course of deciding a motion for a directed

verdict. Furthermore, the aura of impartiality surrounding the judge

will likely cause the jury to give undue credence to his testimony.

Opposing counsel might well be hesitant to attack the judge on cross-

examination for fear of alienating either the judge or jury. Finally,

practical problems inhere in such judicial testimony. Who, for

example, will rule on objections?

The conclusion in Hensarling was that for the State to introduce the

testimony of the judge who had presided at a previous stage of the proceedings did

not violate TEX. R. EVID. 605, but on the facts of that case, a new judge was now

presiding,

and the judge's own conduct was not in question, as it is here.

1. A Clear Entitlement to Relief Exists in These Circumstances.

Mr. Garza has a "a clear right to the relief sought." The merits of the

situation are "clear and indisputable" with "nothing left to the exercise of

-25-

discretion or judgment." State ex rei. Hill v. Fifth Court ofAppeals, 34 S.W.3d

924, 927-28 (Tex. Crim. App. 200l){citing Buntion v. Harmon, 827 S.W.2d 945,

94 7 and 947 n. 2 {Tex. Crim. App. 1992). 17

That there is a disputed evidentiary issue, and that Judge Gonzalez would

have personal knowledge of his own role in what occurred in the jury room during

the trial, see TEX. R. CIV. PROC. 18b(b)(3) is itself beyond dispute: The State, in

its Answer, disputed Mr. Garza's claims of outside influences on the jury

contending that they "are based on factual premises of doubtful validity," /d. at

387. The State has also contested the strength and credibility of the juror

affidavits and testimony adduced at the recusal hearing. See Exhibit F: "State's

Memorandum Response to Applicant's Motion to Recuse 3701h District Court

Judge Noe Gonzalez" at 12-19,21. 18

Likewise, given the allegations in the habeas application, the affidavits of

17

The fundamental nature of the right to an impartial trial judge was such

that the Sixth Court of Appeals in Gentry, where the trial judge relied on his

personal knowledge of the facts of the case in ruling, elected to address the issue

sua sponte. That court held that the trial judge had been disqualified from

presiding, and reversed and remanded to the trial court. Gentry, 2006 Tex. App.

LEXIS 2923 * 8.

18

The State has acknowledged in its Response at 14 that there is a "clear-cut

factual dispute concerning whether Ms. Salinas had made a remark about Judge

Gonzalez carrying a gun for this court."

-26-

the two jurors and the hearing testimony, that Judge Gonzalez and his bailiff

brought an improper outside influence to bear on the jury, an outside observer

would question whether he could resolve those issues impartially. That is

apparent, whatever the merit of the underlying ground for habeas relief, and

whether or not Judge Gonzalez should decide to conduct a live hearing on the

allegation. 19 The question of whether he would in fact be partial may never be

resolved, and is not even relevant.

Moreover, the State in the proceeding below did not contest any of the basic

propositions of law either underlying the alleged ground for habeas relief or the

law on recusal. 20 The State has not contested the conclusion that Judge Gonzalez

19

Applicant's Motion for Supplemental Order Designating Issues concerning

the claim of jury misconduct, and requesting a hearing upon it, remains pending in

the trial court.

2 <1The State did refer, at the Seventh, Eighth, Ninth and Tenth points in its

Response, to propositions that have a bearing on the issue of personal bias on the

part of a judge, which is not alleged here. See State's Response at 9-10. The State

also referred to there being a "high threshold" to be met in recusing a judge on the

basis of perceived impartiality. See State's Response at 12. The only case cited

by the State that actually mentions a "high threshold" is Ex parte Ellis, 275

S.W.3d 109, 112 (Tex. App.- Austin 2008, no pet.) which referred to the

concurrence of Justice Kennedy in Liteky, which then explains that a judge should

only be disqualified, under the relevant federal statute, if it "appears that he or she

harbors an aversion, hostility or disposition of a kind that a fair-minded person

could not set aside when judging the dispute" adding that "[o]ne of the objects of

law is the impartiality of its judges in fact and appearance." (emphasis added).

The State also cited Abdygapparova, 243 S.W.3d at 198, which refers to a "high

-27-

would have personal knowledge of the behavior alleged. Nor has the State offered

any explanation ofhow a judge in his position could rule impartially. Finally, the

State has offered no argument showing how the appearance of impartiality has not

been compromised.

As Buntion explained, a ministerial act is one "clearly compelled by the

facts and legal authority extant in a given situation." 827 S.W. 2d at 947. Even

what might otherwise be deemed a discretionary function, may become

'"ministerial' when the facts and circumstances dictate but one rational decision.

!d. Here, the legal authorities and the facts in the record dictated that recusal was

necessary, and there is "no ... principled reason" apparent from the record

supporting the Respondent Judge's decision. On the contrary, the only rational

decision was to recuse Judge Gonzalez.

2. That a Convicting Court Normally Has the Discretion to Use

Personal Recollection in Resolving Issues in a Habeas

Proceeding Does Not Alter the Conclusion That Judge

Gonzalez May Not Preside over this Case.

The State contended in Respondent's court that because the trial court in a

habeas proceeding may use personal recollection in determining the issues, recusal

was not required in this instance. While that argument is collateral to the question

standard," but in the context of a case concerning personal bias as a basis for

recusal, which does not discuss the appearance of partiality at all.

-28-

of whether recusal was mandated on the facts available to Respondent, it will be

addressed here.

Both the capital and noncapital habeas corpus statutes provide that the

convicting court "may use personal recollection" in determining "controverted,

previously unresolved factual issues" in a writ application. See TEX. CODE CRIM.

PROC. Art. 11.071 § 9(a) {emphasis added); TEX. CODE CRIM. PROC. Art. 11.07 §

3(d). There is, however, a dearth of authority concerning the scope of a trial

court's proper discretion to use personal recollection in determining controverted

issues. It is submitted that it may be appropriate to use personal recollection to

determine facts that are unlikely to be disputed or that might be verified by the

creation of a record to review. Here, however, the facts remain controverted, and

the State has not declared itself willing to stipulate that the actions of the judge

and bailiff testified to by former jurors Palacios and Guerrero did in fact take

place.

In Ex parte Davila, 530 S.W.2d 543 {Tex. Crim. App. 1975), no hearing

was conducted prior to the trial court making findings of fact and conclusions of

law. In that case the ruling was based on "the files and records in this case and

upon the pleadings," and the critical fact at issue was not disputed by the State.

This Court, granting relief, concluded that the "proper standard in such cases as

-29-

the one before us is whether 'the fact-finding procedure there employed was ...

adequate for reaching reasonable correct results,"' quoting Townsend v. Sain, 372

U.S. 293 ( 1963)(hearing required in federal district court where state procedures

had been inadequate to ensure a full and fair hearing); See also Wellons v. Hall,

558 U.S. 220,223 n. 3 (2010) (remanding case concerning alleged ex parte

contacts between the trial court and jurors, on which the petitioner had been

prevented from creating a record, noting that it would be "bizarre if a federal court

had to defer to state-court factual findings, made without any evidentiary record.")

The fact-finding procedure must be fair to both parties. In Ex parte Byars,

176 S.W.3d 841 (Tex. Crim. App. 2005), where a recommendation for the grant of

habeas rei ief was upheld, a recanting witness had been interviewed by the trial

court in camera with only a court reporter present, albeit with the acquiescence of

the parties. Members of this Court concurred in the decision but expressed

concern as to whether the procedure employed was adequate, given that

"adversarial testing is the constitutionally prescribed method of assessing

reliability," and the State had not cross-examined the witness. Id at 841 (Keller,

P.J., and Hervey & Cochran, JJ., concurring). Similar concerns pertain where

there is a risk that the trial court will make findings on the basis of facts that

cannot actually be known, let alone properly tested or challenged. Rose v.

-30-

Mitchell, 443 U.S. 545, 563 (1979)(earlier state court detennination of facts was

not dispositive where ''judge whose conduct [the petitioner] challenged decided

the validity of that challenge.").

Moreover, weight should be given to the circumstances in which the

convicting court acquires its knowledge of the facts: In Sommers v. Concepcion,

20 S.W.3d 27,43-44 {Tex. Crim. App.- Houston [14'h Dist.] 2000, pet. denied) a

trustee in bankruptcy tried to recuse a judge who had testified in another

proceeding concerning the same parties. It was held that it was no ground for

recusal if a judge has learned facts in the course of prior proceedings, but that

"where a party alleges the judge possesses personal knowledge of disputed facts,

the party must show that this knowledge either was wrongfully obtained or led to a

wrongful disposition of the case." Here, where the trial court's knowledge of the

occurrences in the jury room were obtained - indeed, created - in violation of the

relevant statutes, TEX. CODE CRIM. PROC. Art. 36.22 and 36.27 concerning

contacts and communications with a jury during trial, it may be fairly said that the

judge's personal knowledge seems to have been wrongfully obtained. Thus, to

have that same judge rely on his personal recollection of those events would not

be an adequate method "for reaching reasonably correct results." Davila, 530

S.W.2d at 545. A finding favorable to Mr. Garza's position here would require

-31-

Judge Gonzalez- explicitly or implicitly- to admit negative facts about his own

conduct and possibly that of his longtime bailiff also. A finding adverse to Mr.

Garza could also result in factual determinations which cannot adequately be

reviewed later, since the court's contacts with the jury were in camera, ex parte

and unrecorded.

III. NO ADEQUATE REMEDY AT LAW

Mr. Garza has no adequate remedy at law. Unless mandamus relief is

granted, the proceedings will continue to be presided over by a judge who should

have been recused, and whose findings of fact and conclusions of law may have to

be revisited by a subsequent judge.

I. Review of Denial ofRecusal in the Context of Habeas Corpus

Proceedings

There is no comparable criminal rule or statute to TEX. R. CIV. P. 18b,

which provides the various statutory bases for recusal. However, this Court has

held that the civil rules on recusal apply, absent legislative intent indicating

otherwise. Gaal v. State, 332 S.W.3d 448, 453 n. 12 (Tex. Crim. App. 2011);

McC/enan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983). Because there

is no expressed legislative intent otherwise, TEX. R. CIV. P. 18b therefore certainly

applies to Mr. Garza's case.

This Court has also specifically held that TEX. R. CIV. P. 18b(a), which

-32-

states the procedures governing recusal motions in the trial courts, applies to

habeas proceedings "before the trial court." Ex parte Sinegar, 324 S.W.3d 578,

580 (Tex. Crim. App. 2010). However, TEX. R. CIV. P. 18a G)(1)(A), provides

that: "[a]n order denying a motion to recuse may be reviewed only for abuse of

discretion on appeal from the fmaljudgment," (emphasis added) and the specific

application of that part of Rule 18a is not discussed in Sinegar.

Sinegar concerned a situation where the judge of a convicting court had

declined to address a motion to recuse filed in the course of a habeas corpus

proceeding in which the convicting court had already issued findings of fact and

conclusions of law recommending that relief be denied. In Sinegar, this Court was

presented with both the question of the trial court's handling of the recusal issue

and that court's findings of fact and conclusions of law on the merits. However, in

that case, unlike this, the trial court had not actually acted on the recusal motion,

and the Court apparently felt it necessary to have the recusal issue addressed prior

to deciding whether the findings and conclusions could even be reviewed, given

that Sinegar's recusal efforts were underway prior to the issuance of the trial

court's findings and recommendations. See also Ex parte Roundtree, No. WR-

74,550-01, 2011 Tex. Crim. App. Unpub. LEXIS 249 (Tex. Crim. App. 2011)

(Court of Criminal Appeals declined adoption of findings and conclusions because

-33-

recusal proceedings were pending when trial court made findings and

conclusions); see also TEX. R. APP. P. 73.4 Action on Application: "The Court

may deny relief based on its own review of the Application or may issue such

other instructions or orders as may be appropriate. " 21

This Court has not stated whether its TEX. CODE CRIM. PROC. Art. I I .071 §

II review ofthe trial court's proposed findings of fact and conclusions of law on a

habeas application is an "appeal from the final judgment" for the purpose of TEX.

R. CIV. P. 18a G)(l )(A). It does not appear that it is: This Court reserves to itself

all final decisions on both fact and law in habeas corpus cases, Ex parte Van

Alstyne, 239 S.W.3d 815,817 (Tex. Crim. App. 2007)(Court ofCriminal Appeals

is "ultimate fact finder" in post-conviction habeas corpus review); Ex parte

Galvan, 110 S.W.2d 822, 823-24 (Tex. Crim. App. 1989)(Court of Criminal

Appeals not bound by trial court's conclusions of law). This Court's resolution of

a capital habeas writ application is itself the "final judgment" in a habeas action

which disposes of all issues and parties in a case. There is simply no "appeal" in

21

Neither Sinegar, nor any other authority that counsel has located, articulate

whether this Court's "review," see TEX. CODE CRIM. PROC. Art. I 1.071 § I 1, is in

an "appeal" for the purpose of TEX. R. CIV. P. I8a G)(l)(A)'s exclusive avenue to

remedy the denial of a recusal motion.

-34-

Texas law from this Court's "final judgment."22

Moreover, the habeas statute, TEX. CODE CRIM. PROC. Art. 11.071 instructs

this Court to review the application and possibly to request further briefing of"the

issues," but in this context, that reference must be to the factual issues material to

the underlying legality of an Applicant's confinement, see TEX. CODE CRIM. PROC.

Art. 11.071 § 8(a). The statute contains no specific provision allowing

presentation of arguments concerning irregularity or impropriety in the

proceedings below.

The plain words of the recusal rule TEX. R. CIV. P. 18a 0)(1)(A) indicate

that it requires the existence of an appeal from a trial court proceeding in order for

a recusal decision to be challenged. Being drafted as a civil rule, it is hardly

surprising that it makes no explicit provision for review of criminal habeas corpus

proceedings, and while this Court has long since extended an invitation to the

legislature to provide relevant rules specific to criminal cases, see McLenan, 661

S.W.2d at 111, no such rules have been provided.

There being no provision in the habeas context for an "appeal" in the usual

"!.JSee Green v. State. 374 S.W.3d 434,445-46 (Tex. Crim. App. 2012)

adopting Texas Supreme Court's interpretation of"final judgement," as that which

disposes of all issues and parties in a case in North East Independent School Dist.

v. Aldridge, 400 S. W.2d 893, 895 (Tex. 1966); Davis v. McCray Refrigerator

Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (Tex. 1941).

-35-

sense from a trial court's denial ofrecusal, there is no adequate remedy at law for

an improper denial.

2. Awaiting Later Appeal or Review Is Not an Adequate Remedy in the

Context of this Case.

Even if TEX. CODE CRIM. PROC. Art. 11.071 § 11 review is an "appeal from

the final judgment" for the purpose of TEX. R. CIV. P. 18a G)( 1)(A}, and provides a

potential remedy, that remedy would not be adequate in these circumstances.

In other cases where an appeal was a remedy that would eventually become

available to a defendant seeking mandamus, it has been held that such a remedy

was not adequate, given the circumstances. In Stearnes v. Clinton, 780 S. W.2d

216 {Tex. Crim. App. 1989), the relator complained that the respondent judge had

arbitrarily removed his court-appointed attorneys. The relator conceded that if he

was denied mandamus relief, and if convicted, he would be able to seek review of

the issue through an appeal. ld. at 225. This Court held that the "remedy of

appeal is simply inappropriate to the situation present here," and quoted Smith v.

Flack, 728 S. W.2d 784, 792 (Tex. Crim. App. 1987) {"In some cases, a remedy at

law may technically exist; however, it may nevertheless be so uncertain, tedious,

burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate.") The Court held that failing to provide an immediate remedy would

burden the defendant by compelling him "to again endure a trip through the

-36-

system creating in tum needless additional cost to the taxpayers of this state." !d.

at 225. In Buntion, 827 S.W.2d at 948-49 where the trial court arbitrarily replaced

counsel post-trial, this Court came to the same conclusion, emphasizing the

fundamental nature of the right to· counsel, and held that the relator had no

adequate remedy at law.

Given ''the subjective nature of such terms as 'plain' and 'uncertain,'

'convenient' and 'inconvenient,' 'effective' and 'ineffective,"' Smith v. Flack, 728

S.W.2d at 792, noted that the Court must examine the specific circumstances of

each case in the course of carefully exercising its discretion as to whether a

particular remedy at law would be adequate. While this case involved a different

right - the right to an impartial judge - than that at play in Stearnes and Buntion,

where the right to counsel was involved, the right to an impartial judge is equally

fundamental to a fair proceeding.

Relator could continue through the habeas corpus process with the presiding

judge unchanged, and then ask this Court to set aside any adverse findings and

conclusions of the trial court, reverse the respondent judge's ruling on the recusal

issue and remand for renewed litigation of the issues, untainted by the

involvement of a judge whose impartiality and knowledge are at issue. However,

to "require him to go through a complete [habeas proceeding] in order to assert

-37-

this right to which he is now entitled would be to require a mere formality, and

would be wasteful of both time and money." Thi Van Lev. Perkins, 700 S.W.2d

768, 776) (Tex. App. - Austin 1985); Perkins v. Court ofAppeals, 738 S. W.2d 276

(Tex. Crim. App. 1987)(denying writ of mandamus against court of appeals in Thi

Van Le).

It should also be borne in mind that the trial court in a habeas proceeding

performs multiple tasks in such a case, all of which may be affected by his

discretionary decision-making: "He 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." Ex parte Simpson, 136 S.W.3d 660, 668 (Tex. Crim. App. 2004). Thus,

rather than any adverse rulings adverse being easily segregable if the case were

remanded to the trial court, the involvement of a judge whose impartiality might

reasonably be questioned would properly demand that the entire proceeding be

subject to a "do-over."

-38-

IV. A STAY OF THE PROCEEDINGS IN THE DISTRICT COURT

IS NECESSARY IN ORDER TO ENSURE THAT AN ADEQUATE

REMEDY IS AVAILABLE

This Court issued an Order on April 7, 2014, commanding Judge Gonzalez

to resolve the outstanding issues and to have the completed case forwarded to the

Court on or before July 3 1, 2014. The Order, which reflected that Mr. Garza had

previously received extensions of time in which to prepare and investigate the

case, stated that no further extensions of time would be entertained. 23 See Order of

April 7, 2014 in Ex parte Humberto Garza, No. WR-78, 113-0 I. The Order also

stated that an order to show cause would issue "against the trial judge, the

prosecutor and defense counsel," ifthe July 31,2014 deadline was not met.

At the time that the additional information was obtained from former juror

Rose Marie Palacios, giving rise to the Motion for Court to Recuse Itself filed on

May 27,2014, Judge Gonzalez had ordered an evidentiary hearing to commence

during the week beginning June 9, 2014. However, because of the provisions of

TEX. R. Crv. P. 18a (f)(2)(A) which prevent a judge against whom a recusal motion

23

The Order states that unde

This text is long and has been trimmed here. Open the source document for the complete record.