Opposition Brief — Brandon Daniel, Petitioner v. Texas
Supreme Court briefFeb 20, 2018
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No. 17-7492
IN THE
SUPREME COURT OF THE UNITED STATES
BRANDON DANIEL,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
Texas Court of Criminal Appeals
RESPONDENT’S BRIEF IN OPPOSITION
MARGARET MOORE
District Attorney
Travis County, Texas
*M. SCOTT TALIAFERRO
Assistant District Attorney
Travis County, Texas
LISA DOTIN STEWART
Assistant District Attorney
Travis County, Texas
Post Office Box 1748
Austin, Texas 78767
AppellateTCDA@traviscountytx.gov
Tel: (512) 854-9400
Fax: (512) 854-4206
*Counsel of Record
ATTORNEYS FOR RESPONDENT
CAPITAL CASE
QUESTION PRESENTED
Given that Daniel’s due process claim was not raised in his post-conviction
application for writ of habeas corpus to the court below, the Texas Court of Criminal
Appeals, and, therefore, was not addressed by that court, does this Court have
jurisdiction to consider that claim? If so, then:
1. Was petitioner denied due process in a state collateral proceeding where the
convicting court provided him with written notice of the issues to be resolved
and opportunities to present evidence in support of his claims, and in
contravention of the State’s evidence, before resolving the designated,
controverted factual issues?
ii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................ ii
TABLE OF CONTENTS .……………………………………………………………………iii
TABLE OF AUTHORITIES ......................................................................................... iv
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ................... 6
STATEMENT OF THE CASE....................................................................................... 6
I. Facts Of This Capital Murder Committed At An Austin Walmart............ 6
II. Course Of Proceedings And Dispositions Below ........................................... 7
REASONS FOR DENYING THE PETITION ............................................................ 14
I. This Court Lacks Jurisdiction To Address The Due Process Question That
Was Not Presented To or Addressed By The Court Below. ............................ 14
II. No Compelling Reason Exists To Grant This Petition For Writ Of
Certiorari Where The Convicting Court Provided Petitioner With Due Process
In Regard To Resolving The Controverted Issues Presented In The Writ
Application. ....................................................................................................... 16
CONCLUSION............................................................................................................. 24
CERTIFICATE OF SERVICE..................................................................................... 26
CERTIFICATE OF COMPLIANCE............................................................................ 27
iii
TABLE OF AUTHORITIES
Cases
Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007)........................................................9
Brady v. Maryland, 373 U.S. 83 (1963).........................................................................8, 12, 20
Daniel v. State, 485 S.W.3d 24 (Tex. Crim. App. 2016) ............................................................7
De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004)........................................................8
Ex parte Brandon Daniel, (Tex. Crim. App. WR-83,459-01 delivered October 18, 2017) ......12
Ex parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007)..................................................20
Ex parte Davila, 530 S.W.2d 543 (Tex. Crim. App. 1975).......................................................18
Ex parte Gonzalez, 323 S.W.3d 557 (Tex. App. – Waco 2010, pet.ref’d.) ................................17
Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) ....................................................19
Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011) .........................................15, 17, 23
Ex parte Pena, 484 S.W.3d 428 (Tex. Crim. App. 2016) ..................................................21, 22
Ex parte Robbins, 360 S.W.2d 446 (Tex. Crim. App. 2011) ....................................................19
Ex parte Saenz, 491 S.W.3d 819 (Tex. Crim. App. 2016)........................................................19
Ex parte Simpson, 136 S.W.3d 660 (Tex. Crim. App. 2004) .............................................15, 21
Ex parte Sinegar, 324 S.W.3d 578 (Tex. Crim. App. 2010).....................................................14
Ex parte Whisenant, 443 S.W.3d 930 (Tex. Crim. App. 2014) ....................................19, 21, 22
In re Brandon Daniel, WR-83,459-02..................................................................................9, 10
Yee v. City of Escondido, 503 U.S. 519 (1992).........................................................................14
Statutes
28 USCS §1257(a)....................................................................................................................14
Tex. Code Crim. Proc. Art. 11.07.......................................................................................17, 18
iv
Tex. Code Crim. Proc. Art. 11.071................................................................................... passim
Tex. Code Crim. Proc. Art. 11.071, Sec. 4 .................................................................................7
Tex. Code Crim. Proc. Art. 11.071, Sec. 9(a) ...........................................................................10
Tex. Code Crim. Proc. Art. 11.072...........................................................................................17
Tex. Penal Code §19.03(a)(1).....................................................................................................6
Rules
Tex. R. Civ. Proc. 18a ................................................................................................................8
v
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI
STATEMENT OF THE CASE
I.
Facts Of This Capital Murder Committed At An Austin Walmart
In the early hours of April 6, 2012, petitioner entered a Walmart store with
the intention of shoplifting (RR 24: 167).1
Petitioner brought along a firearm, a
Jimenez Arms .380, loaded with hollow point bullets “just in case.” (RR 19: 165).
Petitioner appeared intoxicated so the store manager called police because he feared
petitioner would be a danger to himself and others. (RR 18: 54).
Austin Police Officer Jaime Padron responded to the call, and he and the
store manager encountered petitioner in the store. (RR 18: 58-59, 177, 179). Officer
Padron, dressed in full police uniform, announced that he was with the Austin
Police Department and told petitioner to stop.
(RR 18: 38, 56, 59-60, 132).
Petitioner lowered his shoulder, ducked away from Officer Padron, and ran for the
exit. (RR 18: 59). Officer Padron gave chase and tackled petitioner from behind.
(RR 18: 60).
Petitioner pulled a gun from his waistband as Officer Padron
attempted to subdue him. (RR 18: 95-96). When Officer Padron tackled petitioner,
the manager heard a gunshot, and he heard an additional gunshot when petitioner
and Officer Padron fell to the ground.
(RR 18: 60-61, 63).
Another Walmart
1 References to the Reporter’s Record of the trial are made herein in the form of “(RR X: Y)” where
the variable X indicates the volume number and the variable Y indicates the page number of that
volume.
6
employee saw petitioner put the gun to Officer Padron’s neck and shoot him. (RR
18: 119-120).
The manager immediately jumped on petitioner who raised his arm and fired
a third shot, which just missed striking the manager and another employee in their
heads.
(RR 18: 61, 133-134).
Once subdued by Walmart employees, petitioner
raised his head from the floor, looked at Officer Padron, “kind of laughed, chuckled
and said, ‘I killed a cop.’” (RR 18: 64, 151). Officer Padron never pulled a weapon of
any kind when chasing petitioner. (RR 18: 64, 98). He died at the scene. (RR 18:
205).
Police seized petitioner’s firearm, which had two additional live rounds in the
chamber and attached magazine. (RR 19: 65-66; SX27). Police also searched the
petitioner’s backpack and found various grocery items in it. (RR 18: 235; RR 22:
57). Petitioner had killed Officer Padron over $56.90 worth of shoplifted items. (RR
22: 62; SX78).
II.
Course Of Proceedings And Dispositions Below
A. Jury Trial
The State indicted petitioner for the capital murder of Austin Police Officer
Jaime Padron under Texas Penal Code §19.03(a)(1). (CR 98, 100).2 Trial was had
in the 403rd Judicial District Court of Travis County, the Honorable Brenda
2 References to the Travis County District Clerk’s record are made herein in the form of “CR Y”
where Y represents the page number in the clerk’s record.
7
Kennedy presiding. The jury found petitioner guilty of capital murder of Officer
Padron as alleged in the indictment. (CR 184). The trial court sentenced petitioner
to death based on the jury’s answers to the punishment issues. (CR 189; RR 26:
221).
B. Direct Appeal
On direct appeal, petitioner raised three points of error challenging the legal
sufficiency of the evidence to sustain the jury’s affirmative answer to the future
dangerousness issue at punishment, the trial court’s refusal of his challenge for
cause to a prospective juror, and the trial court’s limitation on his voir dire of an
expert witness.
In a unanimous opinion, the Texas Court of Criminal Appeals
overruled petitioner’s points of error and affirmed the judgment of the trial court.
Daniel v. State, 485 S.W.3d 24 (Tex. Crim. App. 2016).
C. Post-Conviction Proceedings
On February 12, 2016, while the cause was pending on direct appeal to the
Texas Court of Criminal Appeals, petitioner filed an application for writ of habeas
corpus in the convicting court pursuant to Article 11.071, Sec. 4 of the Texas Code of
Criminal Procedure. (WR CR I: 1 – WR CR IV: 776).3 In his writ application,
petitioner raised eleven grounds for relief, to-wit: ineffective assistance of trial
counsel; violation of due process in the trial court’s response to an alleged jury note;
3 References to the clerk’s record on the application for writ of habeas corpus are made in the form of
“(WR CR X: Y)” wherein X designates the volume number of the clerk’s record on the writ application
and Y represents the page number of that volume.
8
violation of due process in the State’s alleged knowing use of false evidence; a state
constitutional violation; violation of various constitutional rights by an improperly
funded defense; a Brady4 violation; an unconstitutional state statute on voluntary
intoxication; and various challenges to the constitutionality of the Texas death
penalty statute. His first ground for relief alleging ineffective assistance of counsel
presented eleven separate claims, with multiple arguments thereunder, and a
twelfth claim of cumulative prejudice. Petitioner filed two volumes of exhibits with
thirty exhibits, totalling hundreds of pages of documentary evidence, in support of
his application for writ of habeas corpus. (WR CR I: 2 – WR CR II: 430).5
On February 16, 2016, petitioner filed a motion to recuse the judge of the
convicting court, Judge Kennedy, from presiding over his Article 11.071 writ
application. (WR CR IV: 777-836). In accordance with the law, Judge Kennedy
declined to recuse herself and requested the Presiding Judge of the Third
Administrative Judicial Region to assign a judge to hear the recusal motion. See
Tex. R. Civ. Proc. 18a.6 (WR CR IV: 864). Pursuant to Rule 18a(d) of the Texas
Rules of Civil Procedure, the Presiding Judge of the Third Administrative Judicial
Region appointed the Honorable Doug Shaver to hear the motion to recuse and to
make such orders as justice required. (WR CR IV: 863). Petitioner also filed a
4
Brady v. Maryland, 373 U.S. 83 (1963).
5 Volume two of petitioner’s writ exhibits contained exhibits 23-30, which were filed under seal.
(WR
CR II: 430).
6 “When a recusal motion is timely filed, Rule 18a leaves a trial
judge with no discretion – the trial judge must either recuse himself or refer the
motion for another judge to decide.” See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).
9
supplement to his motion to recuse (WR CR IV: 873-885) and a motion for discovery
(WR CR IV: 865-871), which was granted by Judge Shaver before the State received
actual notice of the motion. The State filed a response opposing petitioner’s recusal
motion and supplement and disputing petitioner’s factual allegations. (WR CXR IV:
906-929).
Judge Shaver held a hearing on the petitioner’s recusal motion and
supplemental motion.
(WR CR V: 1196-1222). The State provided discovery to
petitioner prior to the hearing, in accordance with the discovery order. Petitioner
presented evidence7 on his recusal motions (WR CR V: 1223-1237), and both sides
presented argument. After considering the evidence and argument at the hearing,
Judge Shaver denied the motion to recuse Judge Kennedy on April 14, 2016. (WR
CR IV: 930).8
On May 5, 2016, petitioner filed a motion for leave to file a petition for writ of
mandamus and a petition for writ of mandamus in the Texas Court of Criminal
Appeals. In re Brandon Daniel, WR-83,459-02. Petitioner sought to compel the
recusal of Judge Kennedy from presiding over his Article 11.071 writ proceeding in
the convicting court.
Petitioner filed over 500 pages of documentary evidence,
including 90 pages of sealed exhibits, with his petition for writ of mandamus.
7 Petitioner presented no competent evidence of an alleged jury note to support his recusal motion.
His contention in his Petition for Writ of Certiorari that Judge Kennedy “secretly communicated”
with the jury is not supported by the record. See Pet. Writ Cert. 4.
8 Approximately six months after the hearing on the recusal motion, petitioner moved to improperly
supplement the record from that hearing with evidence that was not admitted during the hearing,
i.e. new evidence. Under the Texas Rules of Appellate Procedure, the record may be supplemented if
something has been omitted, but the supplementation rules cannot be used to create new evidence.
Amador v. State, 221 S.W.3d 666, 676-77 (Tex. Crim. App. 2007).
10
The State filed a response to petitioner’s motion for leave to file and to the
petition for writ of mandamus arguing against petitioner’s requested relief. The
State noted, in part, that Rule18a(j) provided an adequate remedy at law for
petitioner’s review of the denial of his motion to recuse Judge Kennedy via review
on his Article 11.071 writ application. The Texas Court of Criminal Appeals denied
petitioner motion for leave to file the original writ of mandamus without written
order on July 27, 2016. In re Brandon Daniel, WR-83,459-02. Petitioner did not
thereafter supplement his application for writ of habeas corpus to appeal the denial
of his motion to recuse Judge Kennedy per Rule 18a.
On August 10, 2016, the State timely filed its Original Answer in response to
petitioner’s application for writ of habeas corpus pursuant to Article 11.071, Sec. 7
of the Texas Code of Criminal Procedure. (WR CR IV: 948 – WR CR V: 1061). The
State attached six exhibits to its Original Answer in support of its arguments and in
contravention to factual allegations in petitioner’s writ application.
(WR CR V:
1062-1082). Petitioner thereafter on August 26, 2016, filed a motion requesting the
convicting court to designate issues of fact to be resolved and to hold an evidentiary
hearing. See Tex. Code Crim. Proc. Art. 11.071, Sec. 9(a). (WR CR V: 1083-1103).
The State responded to this motion, also requesting the convicting court to
designate issues to be resolved and the manner in which those issues would be
resolved under Article 11.071, Sec. 9(a). (WR CR V: 1104-1113).
After considering petitioner’s application for writ of habeas corpus and the
State’s answer thereto, the judge of the convicting court entered an order
11
designating the issues to be resolved, per Article 11.071, Sec. 9(a), on September 7,
2016. (WR CR V: 1114-1115). The issues to be resolved were whether petitioner’s
trial counsel rendered ineffective assistance of counsel as alleged in Grounds 1(a)(k) of his habeas application. (WR CR V: 1114). The convicting court judge ordered
petitioner’s trial counsel to submit affidavits addressing the designated issues. Id.
The convicting court judge also ordered the parties to file proposed findings of fact
and conclusions of law within 30 days of her order. Id. at 1115.
On October 7, 2016, petitioner gave notice of his inability to comply with this
30-day deadline.
(WR CR V: 1122-1136).
Judge Kennedy entered an order
extending the time in which the parties were to file proposed findings and
conclusions by one week. (WR CR VII: 1544). The judge also gave notice to the
parties that she would resolve the designated issues based on the affidavits of trial
counsel, petitioner’s writ application and attached exhibits, the State’s answer and
attached exhibits, and the court’s personal recollection. Id. The State timely filed
its proposed findings and conclusions; but, petitioner requested further time to file
his proposed findings and conclusions. (WR CR VII: 1511-1537; 1545-1574). The
judge entered an order granting an additional 30 days’ time to file the proposed
findings and conclusions, making them due November 10, 2016. (WR CR VII: 1584).
After receiving two extensions, petitioner filed his proposed findings of fact
and conclusions of law on November 10, 2016. (WR CR VII: 1618 – WR CR VIII:
1797). He also filed a document requesting an opportunity to challenge adverse
evidence in a live evidentiary hearing or deposition. (WR CR VII: 1595-1617). On
12
November 30, 2016, the judge of the convicting court filed her extensive fact
findings and conclusions of law and recommended that petitioner be denied relief on
his writ application. (WR CR VIII: 1806-1835). The judge also denied petitioner’s
motion for the hearing he requested to challenge adverse evidence. (WR CR VIII:
1805). The Travis County District Clerk forwarded the record on the habeas corpus
application to the Texas Court of Criminal Appeals, which received it on December
9, 2016.
On January 19, 2017, petitioner transmitted to the Texas Court of Criminal
Appeals his objections to the convicting court’s findings and conclusions and a
request for remand to redo the proceedings on the writ application in the convicting
court based on a recusal of Judge Kennedy. This filing was not presented as a
supplement to his writ application, however.
The Texas Court of Criminal Appeals denied relief to petitioner on his Article
11.071 application for writ of habeas corpus in a written order. Ex parte Brandon
Daniel, (Tex. Crim. App. WR-83,459-01 delivered October 18, 2017).
Specifically,
the Court of Criminal Appeals held that petitioner’s claim 2 regarding the alleged
jury note was not cognizable on habeas review, that claims 3, 4, 5, and 7 were
procedurally barred, and that due process claims based on the Texas Constitution
were not cognizable on habeas review.
Id. at 2-3.
The Court determined
petitioner’s claim 6, the Brady issue, was not supported with adequate facts and
that evidence before the Court contradicted petitioner’s claim. Id. at 6. The Court
summarily rejected petitioner’s constitutionality challenges to the death penalty
13
statute in claims 8-11, as those issues had been repeatedly rejected by the Court
and petitioner raised nothing new to persuade the Court to reconsider its prior
holdings. Id. 5-6. Finally, the Court addressed and rejected petitioner’s ineffective
assistance of counsel grounds in claim 1, specifically addressing in its written order
the merits regarding petitioner’s claim of counsel’s alleged failure to investigate and
present a diagnosis of Autism Spectrum Disorder.
Id. at 3-5.
Based on the
convicting court’s findings and conclusions and its own review of the record, the
Texas Court of Criminal Appeals denied petitioner relief on his writ application. Id.
at 6.
REASONS FOR DENYING THE PETITION
I.
This Court Lacks Jurisdiction To Address The Due
Process Question That Was Not Presented To or
Addressed By The Court Below.
The question petitioner seeks this Court to answer is what process is due in
state post-conviction proceedings in a capital case. Petitioner contends that the
convicting court’s adjudication of his constitutional claims in his application for writ
of habeas corpus deviated from the state statutory process and did not satisfy the
minimum procedural requisites of the Fourteenth Amendment’s due process clause.
Pet. Writ Cert. 26-27. After the convicting court resolved the controverted issues in
this case and ordered transmission of the writ record to the Texas Court of Criminal
Appeals, petitioner did not amend or supplement his writ application to raise this
due process issue. And, petitioner did not challenge the denial of his motion to
14
recuse the judge of the convicting court on his application for writ of habeas, the
appropriate means. See Ex parte Sinegar, 324 S.W.3d 578 (Tex. Crim. App. 2010)
Consequently, petitioner’s due process concerns were not presented to or addressed
by the Texas Court of Criminal Appeals. The question of what process is due in
state post-conviction proceedings in a capital case is not properly before this Court.
Review should be denied. 28 USCS §1257(a); Yee v. City of Escondido, 503 U.S. 519,
532-33 (1992).
Petitioner’s additional issue, viz: whether the convicting court deviated from
statutory process provided in Article 11.071 of the Texas Code of Criminal
Procedure, is a state law question of statutory interpretation and applicability.
Petitioner complains of the convicting court’s manner of resolution, and ultimate
determination, of controverted issues under Article 11.071, a statute that vests the
convicting court with broad discretion in resolving controverted fact issues in
habeas corpus proceedings.
This issue also was not raised in petitioner’s
application for writ of habeas corpus and, therefore, whether the convicting court
deviated from state statutory procedure on the writ application was not addressed
by the Texas Court of Criminal Appeals.
Petitioner does not challenge the
constitutional validity of Article 11.071, and he, in fact, acknowledges that the state
statutory scheme may operate in a constitutionally adequate manner. Pet. Writ
Cert. 26. Under these circumstances, review by this Court is not appropriate. 28
USCS §1257(a); Yee v. City of Escondido, 503 U.S. at 532-33.
15
“The Great Writ protects a ‘proper respect for the concept of justice’ and
therefore courts require ‘that petitions be filed in earnest and that all contentions of
merit be presented and ruled upon as expeditiously as possible.’” Ex parte Medina,
361 S.W.3d 633, 642 (Tex. Crim. App. 2011). Because petitioner failed to raise all
alleged contentions of merit in his writ application to be reviewed by the Texas
Court of Criminal Appeals, there is no compelling reason to grant review in this
cause.
II.
No Compelling Reason Exists To Grant This Petition For
Writ Of Certiorari Where The Convicting Court Provided
Petitioner With Due Process In Regard To Resolving The
Controverted Issues Presented In The Writ Application.
The legislative framework of Article 11.071 of the Texas Code of Criminal
Procedure contemplates that the habeas judge is “Johnny-on-the-spot.” Ex parte
Simpson, 136 S.W.3d 660, 668 (Tex. Crim. App. 2004). The judge of the convicting
court is the collector of the evidence, the organizer of the materials, the decision
maker as to what live testimony may be necessary, the factfinder who resolves
disputed factual issues, the judge who applies the law to the facts and 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 at 668.
Section 8(a) of Article 11.071 of the Texas Code of Criminal Procedure states
in part that after the state answers the application, “the convicting court shall
determine whether controverted, previously unresolved factual issues material to
the legality of the applicant’s confinement exist and shall issue a written order of
16
the determination.” If the convicting court determines such factual issues exist,
Section 9(a) requires that the court issue an order designating the issues of fact to
be resolved and the manner in which the issues will be resolved.
In the proceedings below, the judge of the convicting court followed these
statutory requisites and provided petitioner due process notice and an opportunity
to be heard on his application for writ of habeas corpus.
A. The Judge Of The Convicting Court Gave Notice Of The Issues
To Be Resolved On The Writ Application And The Manner In
Which Those Issues Would Be Resolved.
Both petitioner and the State requested the judge of the convicting court to
designate the issues to be resolved on his writ application per Article 11.071, Sec.
9(a). (WR CR V: 1083, 1104, respectively). That section of Article 11.071 provides:
Sec. 9. Hearing.
(a) If the convicting court determines that controverted, previously
unresolved factual issues material to the legality of the applicant’s
confinement exist, the court shall enter an order, not later than the
20th day after the last date the state answers the application,
designating the issues of fact to be resolved and the manner in which
the issues shall be resolved. To resolve the issues, the court may
require affidavits, depositions, interrogatories, and evidentiary
hearings and may use personal recollection.
In response to petitioner’s and the State’s requests, Judge Kennedy, the judge of the
convicting court, timely filed an order designating the issues to be resolved, thus
providing notice to the parties of the relevant issues. (WR CR V: 1114-1115). Those
designated issues were whether petitioner’s trial counsel rendered ineffective
assistance as specifically alleged in Grounds 1(a)-(k) of petitioner’s writ application.
17
Id. at 1114. Petitioner had full notice of the factual issues to be resolved under
these specific grounds based on the judge’s designation of these issues, his pleadings
in his writ application, and the State’s answer disputing and disproving his factual
allegations. See Ex parte Medina, 361 S.W.3d at 642 (the fact issues that must be
resolved are those contained within the writ application and the State’s
controverting answer). Judge Kennedy ordered petitioner’s trial counsel to submit
affidavits addressing the issues raised in Grounds 1(a)-(k).9 (WR CR V: 1114-1115).
After designating the issues to be resolved, Judge Kennedy entered an order
specifying the manner in which the designated issues would be resolved in
accordance with Article 11.071, §9(a). (WR CR VII: 1544). That statute provides
that the convicting court determines how controverted, unresolved factual issues
shall be resolved. As noted supra at 17, Article 11.071, §9(a) allows that the court
may require affidavits, depositions, interrogatories, and evidentiary hearings and
may use personal recollection in resolving issues.
The Texas legislature has
invested trial courts with broad discretion with regard to the means by which
controverted fact issues may be resolved in habeas corpus proceedings. See e.g. Ex
parte Gonzalez, 323 S.W.3d 557, 561 (Tex. App. – Waco 2010, pet.ref’d.) (construing
language in Art. 11.072, in same manner as language in Art. 11.07, due to
similarity of text). See and compare Art. 11.071, §9. Petitioner’s contention that
9 Both defense counsel submitted affidavits addressing the designated issues without need for
clarification or additional specification of the issues. (WR CR V: 1116; WR CR VII: 1538).
18
Article 11.071 provides “mandatory procedures” for factual resolution of issues is
incorrect under state law. Pet. Writ Cert. ii.
Judge Kennedy specifically informed the parties that she would resolve the
designated issues based on the affidavits of trial counsel, petitioner’s writ
application and attached exhibits, the State’s answer and attached exhibits, and the
court’s personal recollection, in accord with her discretion allowed via Article
11.071, §9(a). (WR CR VII: 1544).10 A live evidentiary hearing was not required to
resolve the issues. See e.g. Ex parte Davila, 530 S.W.2d 543, 545 (Tex. Crim. App.
1975) (construing language in Art. 11.07 that provides the court may hold a hearing
on a habeas petition). It is especially true that a live evidentiary hearing is not
required to resolve designated issues where the trial judge before whom the writ
application is pending also presided over the applicant’s trial, as was true in this
case. See Ex parte Gonzalez, 323 S.W.3d at 561, citing Ex parte Davila, 530 S.W.2d
at 545.
Judge Kennedy followed the statutory procedure under Article 11.071 in
providing petitioner and the State with notice of the designated issues to be
resolved and the manner in which the court would resolve those issues. There was
no abuse of discretion or denial of due process by the judge of the convicting court.
10 This order was the only one issued by the judge of the convicting court addressing the evidentiary
materials under Article 11.071, Sec. 9(a) that would be utilized in resolving the designated issues.
Petitioner’s assertion that “the habeas court changed the manner of fact-finding” with this order is
not supported by the record. See Pet. Writ Cert. 17.
19
B. The Judge Of The Convicting Court Considered Substantial
Evidence From Both Petitioner And The State In Resolving
The Controverted Issues Presented In The Writ Application.
The Texas Court of Criminal Appeals has reflected a historical willingness to
consider the merits of timely filed supplemental or amended pleadings on an
application for writ of habeas corpus. Ex parte Saenz, 491 S.W.3d 819, 825 (Tex.
Crim. App. 2016); see e.g. Ex parte Robbins, 360 S.W.2d 446 (Tex. Crim. App. 2011)
(supplemental claim filed one month after filing of initial application); and Ex parte
Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) (supplemental claim filed one year
after filing of initial application).
That Court considers the merits of such
pleadings, if the issues are cognizable and ripe for review, when the applicant files
them before the Texas Court of Criminal Appeals has disposed of the pending
application. Ex parte Saenz, 491 S.W.3d. at 824.
An applicant may supplement his pleadings in his application for writ of
habeas corpus by attaching affidavits and documentary evidence.
Whisenant, 443 S.W.3d 930, 932 (Tex. Crim. App. 2014).
Ex parte
These evidentiary
materials are meant both to augment the specificity of the applicant’s factual
allegations and, to a certain extent, to contribute to applicant’s satisfaction of his
ultimate burden to prove entitlement to relief by a preponderance of evidence. Ex
parte Whisenant, 443 S.W.3d at 932. Whether this proof accompanies the pleading
or awaits development after the convicting court judge designates the issues, the
factual development that follows an adequately pled writ application should be
substantially completed before the convicting court enters its recommended findings
20
of fact to be transmitted to the Texas Court of Criminal Appeals. Id. Attachments
to the parties’ pleadings in writ proceedings are part of the habeas corpus record.
Ex parte Campbell, 226 S.W.3d 418, 423 (Tex. Crim. App. 2007).
Petitioner initially attached two volumes of evidentiary materials to his
application for writ of habeas corpus filed in the convicting court. (WR CR I-IV: 1751). The volumes contained 30 exhibits, encompassing more than 500 pages of
evidentiary material, as evidence in support of his writ claims. This evidentiary
material consisted of affidavits, personal and family records for petitioner, other
trial proceedings of his family, prison records from a punishment witness, and an
email from a mitigation specialist. (WR CR I: 2 – WR CR II: 430). Both exhibit
volumes contained evidence addressing the issues of ineffective assistance counsel
as raised in ground one and the alleged jury note raised in ground two, among other
issues raised in the writ application regarding false testimony.
Petitioner’s
assertion that the convicting court “accepted evidence from the State but not [him]”
misrepresents the writ record and ignores the substantial evidentiary material he
presented to the convicting court in these two volumes of exhibits. See Pet. Writ
Cert. 22.
The State also filed evidentiary material with its Answer to petitioner’s writ
application.
(WR CR V: 1061-1082).
The State’s evidence, in contravention to
petitioner’s claims of ineffective assistance of counsel, the alleged jury note, and the
Brady issue, consisted of affidavits from defense counsel, court personnel, a
prosecutor, a community supervision officer, and a juror. Thereafter, the convicting
21
court judge designated issues to be resolved, and on October 11, 2016, gave notice
that the issues would be resolved through affidavits of trial counsel, petitioner’s
writ application and attached exhibits, the State’s answer and its attached exhibits,
and the court’s personal recollection. See e.g. Ex parte Simpson, l36 S.W.3d at 662
(trial judge entered an order that found that there were no factual issues that could
not be resolved by using the trial record and the written writ materials).
Pursuant to the order of the convicting court, petitioner’s defense counsel
filed their affidavits on September 20th and October 11th of 2016. Their affidavits
refuted petitioner’s factual allegations in his ineffective assistance of counsel claims.
(CR V: 1116; CR VII: 1538). Petitioner did not file any additional or controverting
evidence to his counsel’s affidavits or to the State’s evidence in the convicting court.
Instead, he motioned for a live evidentiary hearing or deposition, neither of which
he was entitled to under Article 11.071. (CR VII: 1594, 1602 – Petitioner’s Motion),
(CR VIII: 1798 – State’s Reply Opposing Petitioner’s Motion). Petitioner failed to
avail himself of the mechanism established by the Texas Court of Criminal Appeals
to present additional evidence to the convicting court.
See Ex parte Pena, 484
S.W.3d 428, 430 (Tex. Crim. App. 2016); Ex parte Whisenant, 443 S.W.3d at 932.
Six weeks after designating the issues, the judge of the convicting court
entered her findings of fact and conclusions of law based on the evidentiary
materials filed in the convicting court.
(CR VIII: 1806).
The record does not
support petitioner’s assertion that the convicting court acted “solely” on evidentiary
proffers procured by the State and on its own personal recollections. Pet. Writ Cert.
22
27. Additionally, the record does not support petitioner’s contention that the judge
of the convicting court denied him the opportunity to present additional evidence on
his writ application. There was no ruling by Judge Kennedy denying petitioner the
opportunity to present additional evidence post-filing of his writ application;
petitioner was only denied a hearing to challenge the evidence in the convicting
court in the manner in which he wanted, to-wit: by deposition or live hearing. Pet.
Writ Cert. 18, 22. Article 11.071 does not allow for the applicant to determine how
controverted issues are resolved; it is within the convicting court’s discretion.
Even after the writ application had been transmitted to the Texas Court of
Criminal Appeals, petitioner could have filed supplemental evidence in the
convicting court for consideration. Ex parte Whisenant, 443 S.W.3d at 933. If a writ
application has been received by the Texas Court of Criminal Appeals and is
pending before that court but has not yet been filed and set for submission, a party
who wishes that court to consider additional evidence “must” file a motion in the
Texas Court of Criminal Appeals to stay the proceedings pending the filing of the
evidence in the convicting court. Ex parte Pena, 484 S.W.3d 428, 430 (Tex. Crim.
App. 2016). In that motion, the party should describe the evidence he intends to file
in the convicting court and explain its evidentiary value. Ex parte Pena, 484 S.W.3d
at 430.
Petitioner did not follow these procedures enunciated in Ex parte Pena to file
additional evidence in support of his writ claims or adverse to the State’s
evidentiary materials during the ten months that his writ application was pending
23
before the Texas Court of Criminal Appeals. And, petitioner fails to identify any
relevant, controverting evidence that he wished to present before the convicting
court resolved the designated issues.
Petitioner’s claim that he was denied the
opportunity to introduce evidence in support of the claims in his writ application is
not supported by the record in this cause. Pet. Writ Cert. 30.
CONCLUSION
Petitioner had a full and fair opportunity to present his constitutional claims
in accordance with the procedures of Article 11.071.
S.W.3d at 642.
Cf. Ex parte Medina, 361
The judge of the convicting court acted within her statutorily-
authorized discretion in resolving the designated issues based on the evidentiary
materials that were timely filed in her court. The factual findings made by the
convicting court were not erroneous; they were just counter to those requested by
petitioner. The Texas Court of Criminal Appeals conducted its own review of the
record and determined that the convicting court’s findings and conclusions were
supported by the record. Ex parte Daniel, WR-83,459-01, at 6.
Petitioner was not denied due process in the proceedings below. The judge of
the convicting court provided him with notice of the controverted issues and the
manner in which those issues would be resolved.
Petitioner filed substantial
evidentiary materials in the convicting court in support of his writ application. But,
he did not attempt to file additional evidentiary materials in the manner allowed by
the Texas Court of Criminal Appeals. Instead, petitioner moved for a hearing not
24
mandated by Article ll.0zr. Furthermore, he did not file additional
issues raising
due process claims in the convicting court or appealing the
denial of his recusal
motion as r;laims for relief in his application for writ of habeas
corpus.
Petitioner seeks a new writ hearing in the convicting court with
judge' His dissatisfaction with the factual findings of the convicting
a different
court is not a
compelling or appropriate reason for this Court to grant review. petitioner,s
process issrtes have not been properly presented to
or addressed by the Texas Court
of Criminal Appeals, and petitioner has not demonstrated that this Court
jurisdiction to hear his claim. Even assuming, arguend.o,
jurisdiction to hear petitioner's claim, his due process
claim is without merit. A writ
Respectfully submitted,
MARGAREIT MOORE
District Att;orney
Travis County, Texas
LISA DOTIN STEWART
Assistant District Attorney
Travis County, Texas
*Counsel of ,Record
Post Office Box 1748
Austin, Texas 787G7
TeL (512) 854-9400
Fax: (512) 854-420G
ATTORNEYS FOR RESPONDENT
25
has
that this Court did have
ofcertiorari should therefore be denied.
*M. SCOTI'TALIAFERRO
Assistant D istrict Attorney
Travis County, Texas
due
No.77-7492
IN THE
SIIPREME COURT OF THE UNITED STATES
BRANDON DAMEL,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
Texas Court of Criminal Appeals
CERTIFICATE OF SERVICE
As required by Supreme Court Rule 2g, I
day of February, 20t8, that a true and correct
being served bv u's' Postal service, first
Ashle_v-.steelr:r@oqfu-lsxaq.gqy, 1200
copy of this Brief in opposition is
class postage, and electronic mail to
Petitioner's attorneys at the office of
swiergula'
hereby certifii that on this the 20th
capital and Forensic writs, Jennae
,
ard
Ashrey steele,
N. Congress Avenue, Suite 460, Austin, Texas
7870\' (512) 463-8600. I further certi{y
that I am a member of the Bar of this
Court.
l''
*Counsel
of Record
the
*M. SCOTT
Assistant District Attorney
Travis County, Texas
No. 17-7492
IN THE
SUPREME COURT OF THE UNITED STATES
BRANDON DANIEL,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
Texas Court of Criminal Appeals
CERTIFICATE OF COMPLIANCE
As required bv supreme court Rule BB.r(h) and
Respondent'Brief in opposition contains b,bgs word.s,
exempted b;r Supreme Court Rule 33.1(d), and does
3s.2(b), I certifu that the
excruding the parts
not exceed 40 pages. I declare
under penalty of perjury that the foregoing is true and
correct.
Executed on February 20,201g.
Michael Scott Taliaferro
Counsel of Record for Respondent
27
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.