Opposition Brief — Juan Balderas, Petitioner v. Texas
Supreme Court briefJul 16, 2020
Ask Donna
What actually matters in this document.
Text
No. 19-8392
IN THE
Supreme Court of the United States
______________________________
JUAN BALDERAS,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
______________________________
On Petition for Writ of Certiorari to
The Texas Court of Criminal Appeals
______________________________
RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI
________________________________
KEN PAXTON
Attorney General of Texas
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
JEFFREY C. MATEER
First Assistant Attorney General
TOMEE M. HEINING
Assistant Attorney General
Counsel of Record
MARK PENLEY
Deputy Attorney General
For Criminal Justice
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
tomee.heining@oag.texas.gov
Counsel for Repondent
i
This is a capital case.
QUESTION PRESENTED
Balderas was represented by the Office of Capital and Forensic Writs on
state habeas review, which filed an application for writ of habeas corpus
raising fourteen allegations and supported by seventy-four exhibits. The trial
court designated all fourteen issues for review, pursuant to Texas Code of
Criminal Procedure Article 11.071, § 9, noting that it would resolve the issues
“by application of the applicable law, some by review of the appellate record
and application of applicable law, some by review of the pleadings, some by
review of affidavits submitted by trial counsel, some by recollection of the trial
court, and some by review of submitted habeas exhibits.” See 5 SHCR 1450-51.
The trial court ordered affidavits from trial counsel addressing six of the
fourteen issues, and set two issues for evidentiary hearing, allowing live
testimony from four witnesses. Both parties submitted proposed findings of
fact and conclusions of law, and the trial court adopted the State’s proposed
findings (with some revision) and recommended denial of relief on all claims.
The Texas Court of Criminal Appeals denied relief, “[b]ased upon the trial
court’s findings and conclusions and our own review.” See Petition Appendix
A, at 2, 7.
Upon these facts, did the state court’s review of Balderas’s postconviction
proceedings violate his due process right to notice and an opportunity to be
heard?
i
TABLE OF CONTENTS
QUESTION PRESENTED ................................................................................... i
TABLE OF CONTENTS ...................................................................................... ii
TABLE OF AUTHORITIES ............................................................................... iii
BRIEF IN OPPOSITION......................................................................................1
STATEMENT OF THE CASE .............................................................................1
I.
Facts of the Crime .......................................................................................1
II.
Evidence Introduced at Punishment. ........................................................6
III.
The State-Court and Federal Appellate Proceedings. ........................... 19
REASONS FOR DENYING THE WRIT .......................................................... 20
I.
Balderas Has No Due Process Right to State Collateral
Proceedings. ............................................................................................. 21
II.
The State Court Complied with Texas Code of Criminal
Procedure Article 11.071 and the Fourteenth Amendment. ................. 23
A.
Balderas received due process. ..................................................... 25
B.
The state habeas proceeding complied with article 11.071. ........ 27
1.
The trial court designated all issues for review. ................ 28
2.
The trial court is permitted to limit review. ...................... 31
3.
The CCA denied relief on its own review of the
record. ................................................................................... 39
CONCLUSION ................................................................................................... 40
ii
TABLE OF AUTHORITIES
Cases
Armstead v. Scott, 37 F.3d 202 (5th Cir. 1994) ................................................ 34
Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................ 33
Balderas v. State, 517 S.W.3d 756 (Tex. Crim. App. 2016) ............................... 5
Balderas v. Texas, 137 S. Ct. 1207 (2017) ........................................................ 20
Bell v. Cone, 535 U.S. 685 (2002) ...................................................................... 21
Brady v. Maryland, 373 U.S. 83 (1963) ............................................................ 37
Brumfield v. Cain, 576 U.S. 305 (2015) ............................................................ 23
Clark v. Johnson, 202 F.3d 760 (5th Cir. 2000) ............................................. 33
Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009)
......................................................................................................................... 23
Estelle v. McGuire, 502 U.S. 62 (1991) ............................................................. 22
Evitts v. Lucy, 469 U.S. 387 (1985) ................................................................... 23
Ex parte Balderas, No. WR-84-066-01, 2019 WL 6885361 (Tex. Crim. App.
2019) ................................................................................................................ 20
Ex parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007)........................... 29
Ex parte Empey, 757 S.W.2d 771 (Tex. Crim. App. 1988) ............................... 30
Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998) ................................ 30
Ex parte Fassi, 388 S.W.3d 881 (Tex. App.—Houston [14th Dist.] 2012, no
pet. ................................................................................................................... 29
Ex parte Hines, No. WR–40,347–02, 2005 WL 3119030 (Tex. Crim. App. Nov.
23, 2005) .......................................................................................................... 29
Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011) .............................. 30
Ex parte Reagan, 549 S.W.2d 204 (Tex. Crim. App. 1977) .............................. 30
iii
Ex parte Simpson, 136 S.W.3d 660 (Tex. Crim. App. 2004) ...................... 28, 33
Ford v. Wainwright, 477 U.S. 399 (1986) ................................................... 25, 26
Goldberg v. Kelly, 397 U.S. 254 (1970) ............................................................. 25
Greene v. Fisher, 565 U.S. 34 (2011) ................................................................. 21
Harrington v. Richter, 562 U.S. 86 (2011) ........................................................ 21
Henderson v. Cockrell, 333 F.3d 592 (5th Cir. 2003) ....................................... 22
Hines v. Thaler, 456 F. App’x 357 (5th Cir. 2011) ........................................... 33
In re Harris, 491 S.W.3d 332 (Tex. Crim. App. 2016) ...................................... 33
Killion v. State, 503 S.W.2d 765 (Tex. Crim. App. 1973) ................................. 30
Kyles v. Whitley, 498 U.S. 931 (1990) ............................................................... 20
Morgan v. United States, 298 U.S 468 (1936) .................................................. 25
Morrow v. Dretke, 367 F.3d 309 (5th Cir. 2004) ............................................... 33
Murray v. Giarratano, 492 U.S. 1 (1989) ......................................................... 22
Panetti v. Quarterman, 551 U.S. 930 (2007) .................................................... 23
Pennsylvania v. Finley, 481 U.S. 551 (1987) .............................................. 22, 23
Strong v. Johnson, 495 F.3d 134 (4th Cir. 2007) ............................................. 34
Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005) ......................................... 34
Tercero v. Stephens, 738 F.3d 141 (5th Cir. 2013) ........................................... 26
Townsend v. Sain, 372 U.S. (1963) .................................................................. 25
Wearry v. Cain, 136 S. Ct. 1002 (2016) ....................................................... 37, 38
Statutes
Tex. Code. Crim. Proc. art. 11.071 § 9 (a) ................................................... 28, 39
Texas Code of Criminal Procedure Article 11.071 ....................................passim
iv
Texas Code of Criminal Procedure Article 39.14(h) and (k) ............................ 35
Texas Code of Criminal Procedure Article 39.14 (k)........................................ 35
Rules
Tex. R. App. P. 73.7(b) ....................................................................................... 36
v
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
Petitioner Juan Balderas was found guilty and sentenced to death for
the capital murder of Eduardo Hernandez, committed while in the course of
committing or attempting to commit burglary of a habitation. See 1 CR 1 2-3.
Balderas now seeks certiorari review of the denial of his petition for writ of
habeas corpus by the Texas Court of Criminal Appeals (CCA). However,
Balderas is unable to present any special or important reason for certiorari
review because he fails to demonstrate a violation of any federal constitutional
right. Certiorari review should therefore be denied.
STATEMENT OF THE CASE
Facts of the Crime
The CCA summarized the facts of the crime in its opinion affirming
Balderas’s conviction and sentence on direct appeal:
In 2004, the victim, Eduardo Hernandez, became a member of the
Barrio Tres Alief (“BTA”), a regional subset of the La Tercera Crips
(“LTC”) street gang in Houston. Balderas, a long-time member of
the LTC gang and one of the founding members of the BTA subset,
had introduced Hernandez to the gang. Initially, the other LTC
members liked Hernandez, and Hernandez was proud to be part of
the gang. LTC member Israel Diaz befriended Hernandez, and for
a while Hernandez lived with Diaz. However, in late 2004, this
friendship soured after Diaz let Hernandez borrow a vehicle that
“CR” refers to the Clerk’s Record of pleadings and documents filed with the
clerk during trial, while “RR” refers to the Reporter’s Record from trial. “SHCR” refers
to the Clerk’s Record filed during state habeas proceedings, while “SHRR” refers to
the Reporter’s Record from the evidentiary hearing.
1
1
Diaz had stolen the week before. Police officers stopped and
arrested Hernandez while he was driving the stolen vehicle. After
Hernandez informed them that he had borrowed the vehicle from
Diaz, they arrested Diaz for aggravated robbery.
Diaz bonded out of jail in April 2005. He was angry with
Hernandez for “snitching” on him. He “lectured” Hernandez about
giving his name to the police, and Hernandez promised that he
would not testify against Diaz in the aggravated robbery case.
Balderas’s defense counsel argued at trial that Hernandez’s
snitching gave Diaz a motive for murder, but Diaz denied that he
wanted to kill Hernandez. Diaz testified that he knew that two
other witnesses could identify him as the thief and that police had
found his fingerprints on the stolen vehicle; therefore, preventing
Hernandez from testifying would not have helped him avoid the
robbery conviction. Also, because of the pending robbery case, Diaz
knew that he would be the first suspect if anything happened to
Hernandez. Diaz testified that even though he personally did not
want to kill Hernandez, other LTC members viewed Hernandez’s
conduct as being disrespectful of the gang and thought that
Hernandez needed to be punished. Diaz testified that he asked
those members to wait until his trial was over before they took
action against Hernandez.
After the snitching incident, Hernandez stopped associating with
other LTC gang members. He also moved out of his family home so
that LTC members could not easily locate him. In August or
September 2005, he began dating Karen Bardales (“Karen”).
Hernandez and Karen spent much of their time “hanging out” in
an apartment belonging to one of Karen’s friends, Durjan
Decorado, who was not in a gang. Karen’s older sister, Wendy
Bardales (“Wendy”), and Wendy’s boyfriend, Edgar Ferrufino, also
spent much of their time in that apartment. Karen and Wendy’s
friends, including members of several rival gangs, would visit them
there. Hernandez socialized with those friends.
Over the next few months, LTC gang members heard rumors that
Hernandez was associating with members of rival gangs and
flashing rival gangs’ hand signs, which constituted acts of
disloyalty and disrespect against the LTC gang. After seeing
images of Hernandez on social media confirming these rumors,
2
some indignant LTC members urged the gang to take action
against him. Three or four days before Hernandez’s killing, senior
members of the gang called a meeting. Those in attendance agreed
to shoot and kill Hernandez. Although they did not expressly select
an individual to kill him, everyone understood that Hernandez was
Balderas’s responsibility because he had introduced Hernandez to
the gang.
On the afternoon of December 6, 2005, Wendy, Ferrufino, Karen,
and Hernandez were hanging out in Decorado’s apartment. Jose
Vazquez, a senior LTC gang member, stopped by to talk to
Hernandez. Karen began saying disrespectful things about the
LTC gang, which upset Vazquez. Vazquez wanted Hernandez to
leave the apartment with him, but Hernandez refused. Hernandez
was visibly upset after Vazquez left. He told Karen that he was
worried that something was going to happen. Later, Hernandez
left with his sister to go shopping and have dinner. He and Karen
reunited at the apartment complex that night.
Around 9:45 p.m., Wendy, Ferrufino, Decorado, and Decorado’s
cousin were in Decorado’s apartment. Ferrufino and Wendy were
playing a video game in the living room. As Karen and Hernandez
approached the apartment, Karen noticed fresh LTC gang graffiti
on the exterior wall. Immediately after entering the apartment,
they heard gunshots, and then the front door opened and a
gunman ran into the apartment. Hernandez dropped to the floor
and pulled Karen down with him, positioning himself between
Karen and the gunman. Decorado and his cousin fled to the
bedrooms, and Ferrufino crouched next to the television stand.
Wendy, who was sitting on the floor between the couch and the
television, froze. She could see the gunman as he entered the
apartment, and her eyes followed him until he left.
The gunman fired his gun as he ran around the living room. Wendy
saw that he was wearing khaki pants and a black hoodie, with the
hood pulled up over his head. She got a good look at his face when
his hood fell down as he passed her. The gunman paused in front
of Ferrufino, who asked him not to shoot. He did not shoot
Ferrufino and began to move back toward the entryway, but then
he stopped and stood over Hernandez. He shot Hernandez in the
back and head multiple times. Karen, who was lying face-down
3
next to Hernandez, did not see the gunman’s face, but when the
gunman extended his arm toward Hernandez, Karen could see
that he was wearing a black sweater. After shooting Hernandez at
least nine times, the gunman left. Ferrufino called 9-1-1.
Around that time, Diaz heard from another LTC gang member
that “they” had “found [Hernandez,]” which Diaz understood to
mean that Hernandez was about to be (or had just been) killed. He
and other LTC members gathered across the street from the
apartment complex. They could see an ambulance and police cars
in the parking lot. Diaz saw Balderas waiting near the apartment
complex. Balderas was wearing a dark blue or black sweater-like
top and khakis. When Balderas noticed Diaz and the others, he
crossed the street to join them. Balderas hugged everyone and
seemed “joyful” as he reported that he “finally got him.” Diaz saw
Balderas change the magazine of a silver handgun. Diaz
recognized the handgun as one of two silver guns that Balderas
regularly carried.
That night, law enforcement officials took Wendy, Karen, and
Ferrufino to the police station to give witness statements. In the
early morning hours of December 7, Wendy gave a statement that
was committed to writing by Officer Thomas Cunningham. Wendy
stated that she had never seen the gunman before, and she
described him as a “skinny Hispanic guy dressed in a black hooded
sweatshirt type jacket.” She also stated that he had a “dark birth
mark” on his face but she could not remember where.
Around 10:30 p.m., Sergeant Norman Ruland drove to Wendy’s
apartment to show her a photo array of six suspects that included
Diaz but not Balderas. Wendy did not identify the gunman, but she
recognized Diaz. She stated that he was a friend of Hernandez who
went by the street name “Cookie,” and that she was sure he was
not the gunman. She told Ruland that the gunman had a dark
mark on his cheek that did not resemble the scars that were visible
on Diaz’s face.
On December 12, Ruland returned to Wendy’s apartment with a
second photo array that included Balderas’s photograph. Wendy
immediately pointed to Balderas, saying that she recognized him
as a friend of Hernandez and Diaz who went by the street name
4
“Apache.” She also stated that he “looked like the shooter.” When
Ruland asked Wendy if Balderas was the shooter, she reiterated
that Balderas’s “face looked exactly like the shooter’s face.” She
signed and dated Balderas’s photograph to confirm her
identification. Although Ruland felt that Wendy was confident in
her identification of Balderas as the gunman, he was confused by
her verbal phrasing in making the identification. Therefore, the
following day, he returned to Wendy’s apartment to seek
clarification. On this occasion, Wendy expressly identified
Balderas as the gunman, stating that she was positive in her
identification. She wrote a sentence in Spanish on the back of the
lineup to confirm her positive identification. Based on this
identification, police obtained a warrant for Balderas’s arrest.
On December 16, Officer Rick Moreno drove to an apartment
complex where he watched for Balderas and another LTC gang
member, Rigalado Silder, and waited for the assistance of a SWAT
team. After Moreno had been watching the complex for about 25
minutes, he observed Balderas and Silder leave an upstairs
apartment and start down the stairs. Each man was carrying a
large box, and Balderas had a black bag slung over his shoulder.
When they saw the SWAT team arriving, Balderas and Silder set
everything down and started running. Moreno caught Silder in the
apartment complex, while the SWAT team pursued Balderas into
the neighborhood and caught him as he tried to hide under a car.
Moreno saw that the boxes and bag contained firearms and other
weapons, bullet-proof vests, identification holders, magazines, and
ammunition. One of the weapons recovered from the box that
Balderas had been carrying was a handgun that was later
identified, through ballistics testing, as the murder weapon in
Hernandez’s killing. A shell casing from a semiautomatic handgun
was recovered from Balderas’s right rear pants pocket.
Balderas v. State, 517 S.W.3d 756, 763-65 (Tex. Crim. App. 2016) (Petition
Appendix E).
5
Evidence Introduced at Punishment.
The jury heard testimony that, in May 2001, fourteen-year-old Balderas
was placed on probation for theft, evading arrest, and unauthorized use of a
motor vehicle. 33 RR 11, 16-17; State’s Exhibits (SX) 162-64. Balderas was
ordered to attend the Drug Free Youth Program, where he received counseling
for drugs, anger management, and gang education; regular drug screening,
and access to an education specialist. 33 RR 23-26. Balderas agreed to remove
visible gang tattoos as part of the gang intervention program. 33 RR 25-27.
However, while in this program, Balderas obtained another gang-related
tattoo hidden from view on his abdomen. 33 RR 26-30; SX 167.
His probation officer testified that Balderas abused marijuana and
inhalants; she got him into an in-patient drug-treatment program, but he left
after two days. 33 RR 30-31. Balderas was detained by the police and placed in
a second in-patient program but was temporarily kicked out for assaulting two
new patients. 33 RR 31-33. Balderas was permitted to return but was
discharged a week later for continued behavioral problems; he returned to
custody for violating his probation. 33 RR 33-34.
In December 2001, Balderas’s probation was revoked, and he was sent
to boot camp. 33 RR 34-37; SX 165. While in boot camp, Balderas was charged
with assaulting another inmate and returned to court; he was adjudicated on
a charge of assault and causing bodily injury and sent back to boot camp. 33
6
RR 38-39; SX 166. Upon release from boot camp, he returned to probation
which he successfully completed after two years. 33 RR 43-45. His probation
officer felt Balderas wanted to change but was loyal to his gang. 33 RR 40-42.
Dr. Matthew Shelton performed a psychological screening on Balderas
for the juvenile probation department. 33 RR 48-49. Balderas had an average
IQ, was on grade level, and exhibited no signs of a mental health issue or
learning disability. 33 RR 50-53, 56-60. Dr. Shelton diagnosed him with a
conduct disorder, adolescent onset-type. 33 RR 62. Despite the evidence of
abuse Balderas presented in his mitigation defense, Dr. Shelton saw no sign of
abuse and none was reported in his background. 33 RR 53-54.
The jury also heard that, from September through December 2005,
Balderas participated in four separate shootings, resulting in three murders,
and two injuries. Specifically, Houston Police Officer Derrick Dexter testified
that on September 12, 2005, he responded to the scene of a home invasion and
a shooting. 33 RR 74-100. Officer Dexter found fifty-two-year-old Daniel
Zamora suffering from a fatal shotgun wound to the abdomen and another
gunshot wound to the left thigh. 34 RR 74-77, 81-82, 89-90; SX 186. Zamora’s
brother, forty-four-year-old Guadalupe Sepulveda, who was wheel-chair
bound, was shot in the back but survived. 34 RR 6, 35-36.
Sepulveda testified that four people entered his home wearing ski-masks
and gloves and carrying a rifle and handguns. 34 RR 8-16; see also 33 RR 99;
7
34 RR 101. The men ordered Zamora to get face-down on the ground; Zamora
complied. 34 RR 16-18. One of the men held a gun to Sepulveda’s head, while
the man holding the shotgun ordered Sepulveda to give him all the jewelry,
money, guns, and drugs in the house or he would kill them. 34 RR 7, 18-21. In
the house, Sepulveda had $2,400, two guns, and cocaine and marijuana. 34 RR
24-27. The man with the shotgun struck Sepulveda with the gun, demanded
money, and knocked him out of his wheelchair, while two other men ransacked
Sepulveda’s bedroom. 34 RR 29-32. The assailants collected Sepulveda’s
property, then the man with the shotgun left the room; Sepulveda heard the
shotgun fire and, later two more shots from the handguns. 34 RR 35-36.
Someone then shot Sepulveda in the back. 34 RR 35-36.
Officers learned that four or five Hispanic males were involved, and that
a white, four-door sedan-type vehicle was spotted at the scene. 33 RR 99; 34
RR 101-02, 108-09. A fired .40 caliber shell casing was recovered from the crime
scene, and Sepulveda later found and gave to police a second .40 caliber shell
casing. 34 RR 107-14. However, the police had no suspects until December 9,
2005, when they received information that Balderas, Israel Diaz, Jose Luviano,
Alejandro Garcia, and Efrain Lopez were involved. 34 RR 110-16.
Alejandro Garcia testified that in 2005, when he was sixteen, he was
charged as a juvenile with capital murder for his involvement in Zamora’s
8
death. 2 34 RR 151-52. Garcia testified to the details of the crime and said that
he willingly participated because he was hoping Balderas would make him an
LTC member. 34 RR 214-16; see also 34 RR 172, 176-77. According to Garcia,
on September 12, 2005, Balderas and three others drove up to him on the
street, in a white Dodge Stratus, and told him to get in. The men drove to
Sepulveda’s street, and passed his house several times. 34 RR 208-11. They
parked behind Sepulveda’s house, and four of them exited the car with
weapons and walked through a field to the house. 34 RR 211-13. Balderas had
his .40 caliber handgun, 3 while Lopez had the shotgun. 34 RR 213. Either
Lopez or Balderas gave Garcia an unloaded handgun. 34 RR 213, 216. Balderas
and Lopez led the group across the field to the front door of the house where
everyone rushed in the door. 34 RR 217-19.
Inside the house, Balderas wheeled Sepulveda’s chair into his bedroom,
while Lopez held the shotgun on Zamora. 34 RR 219-22. Lopez hit Zamora in
the side with the butt of the shotgun. 34 RR 221-22. Garcia went into
Sepulveda’s bedroom and took some boxes out to the car which was now in the
front of the house; he returned to the house where Balderas was threatening
Only Garcia was charged with capital murder for Zamora’s death; the others
could have been charged but were charged with other crimes instead. 34 RR 117-19.
2
According to Garcia, Balderas was known to carry a .40 caliber weapon and a
.357 that he always had in his possession. 34 RR 195-200.
3
9
Sepulveda who was now out of his wheelchair on the ground. 34 RR 223-24. As
Garcia left the room to take the second box to the car, he heard gunshots from
inside the room. 34 RR 225-26. Garcia walked past Lopez and Zamora; Lopez
was threatening Zamora, who was begging for his life and talking about his
little girl. 34 RR 227. When he got to the door, Garcia looked back and saw
Lopez shoot Zamora with the shotgun. 34 RR 227-28. Garcia continued out the
door, followed by Balderas and Lopez. 34 RR 228-29. From the robbery, the
men obtained guns, drugs, jewelry, and a cell phone. 34 RR 234-3. Garcia
eventually used this cell phone to contact his girlfriend, leading the police to
him. Garcia gave statements implicating Balderas and the others in the
Zamora/Sepulveda shootings. 34 RR 237-38; 35 RR 42-45. 4
Garcia also testified that on December 3, 2005, he was smoking
marijuana at his home with Jose Hernandez, when Balderas, Diaz, and, later,
Taz 5 came by. 35 RR 10-11. The men were standing outside talking when they
noticed a car drive by repeatedly. Balderas announced that the driver,
identified as Eric Romero, was a member of the rival Cholo gang. 35 RR 11-18.
Garcia testified that he met with the Balderas prosecutors in December 2013
and made a deal to reduce his charges to aggravated robbery in exchange for his
testimony against Balderas and other defendants in other cases. Garcia could be
sentenced to a range from probation to 99 years, but the State would not ask for any
sentence on his behalf. Garcia was released on bond in 2013. See 34 RR 151-57.
4
The record does not formally identify Taz but indicates that he is deceased. See
28 RR 179, 185, 228.
5
10
The LTC members got into Balderas’s car with Israel driving; all had weapons.
35 RR 18-21. The LTC car pulled up parallel to Romero’s car, when Hernandez
began shooting at Romero, followed by Balderas; Romero did not fire a gun. 35
RR 21-24. The men continued shooting until Romero’s car slowed down, then
the LTC members made a U-turn and returned to Garcia’s house. 35 RR 2528. Romero died from the shooting. 35 RR 28. The medical examiner noted six
bullet wounds to Romero’s body, with a seventh reentry wound. 35 RR 28, 18497. Investigators noted seven bullet holes in the driver-side door, two bullet
holes in the rear-driver-side door, and two on the passenger-side back door
window; and found nine shell casings along the road where the shooting
happened. 35 RR 154, 159-72, 176-77. Romero’s girlfriend was a passenger in
the car at the time but was unhurt. 35 RR 210-25.
Witness McKinley Polk testified that, on November 14, 2005, he was a
passenger in a car driving behind a gold Honda when he witnessed the male
passenger of the Honda lean over the male driver and shoot towards children
exiting a school bus. 36 RR 11-26; see also 36 RR 162-65, 168-72 (victim’s
testimony that someone in a gray-ish sedan shot from the driver’s side of car).
Polk’s car followed the Honda and wrote down the license plate, which he then
gave to an officer at the scene of the shooting. 36 RR 21-24. Officer S. L. Grant
testified that the license plate number was registered to Balderas. 36 RR 3541. According to Officer Grant, sixteen-or-seventeen-year-old Luis Garcia
11
received a gun-shot wound to the left hand but was uncooperative with police
officers, and a suspect was never located. 36 RR 33-34, 40-43, 49, 172-76. Luis
Garcia testified that the injury caused long-term problems with his hand. 36
RR 174-75. He also stated that, on that day, he was wearing black which is the
color worn by Cholos gang members. 36 RR 164.
On December 15, 2005, Courtney Altimore witnessed the murder of
thirty-one-year-old Jose Garcia. 36 RR 59-61. Altimore was driving home that
evening when she approached a four-way stop sign; she observed three cars—
a small silver car in the intersection and two other cars pulled off the road just
beyond the intersection. Initially she thought the three cars were involved in
an accident. 36 RR 97-99. She then saw a man get out of the right-hand side of
the silver car and try to run away but was having difficulty moving; a man
then got out of the driver’s side, ran around to the right side, and shot the other
man in the head three to five times. 36 RR 99-100; 110-11. After the shots were
fired, the man got back into the silver car, and all three cars drove off. 36 RR
103-04. Altimore observed the license plate number of the silver car; she called
9-1-1 and relayed the information. 36 RR 104, 108. The license number was
registered to Balderas. 36 RR 109-10. 6 Although it was dark and Altimore
Later, Altimore wrote the number down on a piece of paper so that she would
not forget it. Fearing she might be remembering incorrectly, she also wrote other
combinations of the same numbers. In preparation for her trial testimony, she gave
that piece of paper to the prosecution. 36 RR 105-07; SX 308
6
12
could not see very well, she observed the shooter was “of ethnic origin, either
Asian or Mexican descent.” 36 RR 102.
The medical examiner testified that Jose was shot five times, with fatal
shots to the head and chest. 37 RR 16-32. From the crime scene, Officer Andrew
Taravella collected evidence from an at least two-vehicle car crash, three .40
caliber shell casings, a .45 caliber shell casing, and a fired projectile. 36 RR 6189, 94-95. Witness Ricardo Gamez testified that Jose Garcia was not a gang
member but was a musician and a sound engineer. 36 RR 154-58.
On December 16, 2005, a day after Jose’s murder, Lt. Mitch Weston from
the Harris County Fire Marshal’s office investigated the burning of a
champagne-colored 7 1996 Honda. 36 RR 125-27, 133. The fire department
extinguished the fire, but the car was completely burned. 36 RR 127-28. Lt.
Weston determined that the fire started in the passenger compartment and
was ignited with an open flame. 36 RR 128-38. According to Lt. Weston, the
fire was set intentionally, with an accelerant. 36 RR 147-48. The license plates
were missing, but Lt. Weston was still able to read the vehicle’s VIN number
and determined that Balderas owned the vehicle. 36 RR 138-44; SX 211.
Officer Rick Moreno testified that, when Balderas was arrested, he and
Rigaldo Silder were exiting a building carrying boxes, and Balderas was also
The “champagne” color was described as “metallic” and “a mix of a little gold
and a little silver.” 36 RR 133.
7
13
carrying a bag; the boxes and bag contained a modified rifle and assault rifle,
a .357 caliber handgun, two .40 caliber handguns, a large variety of
ammunition for numerous types of weapons, a gun holster, and ballistics vests.
36 RR 229-49; see also 36 RR 250-66 (testimony of Officer Glen West).
On December 16, 2005, Officers searched an apartment. In this search,
officers collected almost $5,000 in cash; ten cell phones; numerous weapons,
including a machete, a pocketknife, a loaded .9 millimeter semiautomatic gun,
a BB gun, a rifle with a scope, and a plastic bag of unfired .9 millimeter bullets;
drugs and drug paraphernalia, including a bottle with what appeared to be
marijuana soaking in a liquid, rolling papers, a pipe, a glass tube with
marijuana seeds, a plastic bag of marijuana, additional bags, possible crack
cocaine, a scale, and a bottle of pills; gang-related items, including blue
bandanas, blue rosaries, and dog tags with the inscription “Apache LTC Barrio
Tres Alief” (Balderas’s nickname); a black ski mask; and material identifying
Balderas as an occupant of the apartment, including paper work addressed to
Balderas, notebooks with Balderas’s name, and photographs of Balderas with
guns and making gang signs. 37 RR 36-39, 48-87; SX 369-410.
On December 21, 2005, while executing a search warrant for Jose
Luviano, Officer Michael Scott recovered a laptop computer. 37 RR 90-93; SX
438. Balderas was identified in numerous photographs recovered from the
computer. 35 RR 34-41; 37 RR 98-113; SX 221, 333, 430-35. Several
14
photographs depicted men exhibiting gang signs and brandishing weapons, see
SX 221, 333, 431, 432; while three showed sexually explicit images of Balderas
and other gang members and a sixteen-year-old girl, 37 RR 98-101, 106-14; 41
RR 51-52; SX 433, 434, 435. A video found on the computer showed one of the
men having sex with the underage girl, while Balderas held her head and
covered her face with a blue bandana. 37 RR 109-13; 41 RR 56-57; SX 436.
Testimony from the defense revealed that the girl was video-taped having sex
with all the men that night, including Balderas. 41 RR 48-57.
Officer Ponder testified that LTC was a criminal street gang, known to
commit theft, burglary, robbery, and homicide. 36 RR 268. While Officer
Ponder does not personally know Balderas, he believed he is a member of LTC
based upon his tattoos depicting “La Tercera,” a three-point crown, and the
letters LTC; as well as pictures of Balderas making the three-point crown with
his hands. 36 RR 268-83; SX 221, 333, 359-67.
Houston Police Department Fire Arms Examiner Kim Downs testified
that the double-ought buckshot pellets recovered from Daniel Zamora’s
autopsy were fired from an unidentified shotgun. 34 RR 80-81; 37 RR 114-17;
SX 219. Officer Downs identified a fired shell-casing recovered from the
Zamora crime scene as a .40 caliber Smith & Wesson bullet, which matched SX
110, the .40 caliber Taurus gun recovered when Balderas was arrested and
linked to Eduardo’s murder. 25 RR 237-38; 28 RR 26-40; 34 RR 113-14; 37 RR
15
118-19; SX 184. Officer Downs also matched the fired .40 caliber cartridge
given to the police by Sepulveda on December 9, 2005, to SX 110. 34 RR 11315; 37 RR 119; SX 185.
Officer Downs examined five spent shell casings recovered from the
scene of the Luis Garcia shooting and testified that two of the five shell casings
were .40 caliber Smith & Wesson but were “necked down” or converted so they
could be fired from a .357 Sig, and matched SX 113, the Sig Taurus, recovered
when Balderas was arrested. 36 RR 44-49, 231-32; 37 RR 120-25; SX 208. The
remaining three shell casings were .357 Sig cartridges, also fired from SX 113.
36 RR 47-48; 37 RR 125-27; SX 209.
Officer Downs further testified that eight fired .357 Sig cartridge cases
and one .40 caliber “necked down” to a .357 Sig, all recovered from the Romero
crime scene, matched SX 113. 35 RR 168-71; 37 RR 127-31; SX 254-262. Fired
bullet jackets recovered from Romero’s car matched SX 113, the .357 Sig
Taurus. 35 RR 128-35; 37 RR 136-38; SX 276A & B, 277A. Officer Downs
testified that a fired bullet jacket that could not be matched to any weapon, did
match a fired jacketed bullet recovered from Romero’s autopsy; both were fired
from the same gun, although they were not matched to a gun. 35 RR 195-96;
37 RR 138-39; SX 278A, 353. Both were consistent as having been fired from a
.357 magnum or a .38 special. 37 RR 139-40. Bullets recovered at Romero’s
autopsy were fired out of SX 113. 35 RR 195-96; 37 RR 142-43; SX 354, 355.
16
Finally, Officer Downs matched .40 caliber cartridges “necked down” for
a .357 gun, all recovered from the Jose Garcia crime scene, to SX 113. 36 RR
88; 37 RR 144-46; SX 303, 304, 306. A fired bullet recovered from the crime
scene and two bullets recovered from Jose’s autopsy, matched to SX 113. 36 RR
88; 37 RR 28-29, 145-48; SX 305, 331, 332.
As rebuttal witnesses, the State presented Woodrow Thompkins,
certified peace officer for Houston Police Department, who works at the Harris
County Jail. On November 20, 2005, Thompkins received a call that officers
had a violent prisoner—Balderas—in custody and were bringing him to the
jail. Thompkins was able to calm Balderas down, searched him, and put him
in a cell to wait for fingerprinting. 42 RR 134-37. While in the holding-cell,
Balderas kicked another prisoner who was lying on the floor; when told not to
do it again, Balderas cursed at Thompkins twice and kicked the prisoner again.
42 RR 138-44. Thompkins entered the cell to move Balderas to a solitary cell;
he cuffed one of Balderas’s hands, but Balderas started hitting him with the
other hand. Other officers had to intervene. 42 RR 141-42. Thompkins filed
felony charges for assault of public servant against Balderas. 42 RR 142-43;
SX 443. Balderas was released on bond. 42 RR 144-45; SX 442.
Sgt. David Davis, Harris County Sheriff’s Department, testified that
when Balderas was booked into jail on December 18, 2005, for Eduardo’s
murder, he was initially placed in a high-risk housing but, in April 2007, he
17
was moved to administrative segregation. He was transferred to super
segregation in May 2009, but sent back to regular segregation in July 2009.
However, in March 2012, he was transferred back to super segregation, where
he has remained at the time of trial. 42 RR 159-62.
Sgt. Davis also testified to Balderas’s many disciplinary violations while
in Harris County Jail. On August 20, 2006, Balderas was written up for two
violations and lost privileges for fifteen days for destroying county property
and possessing tattoo paraphernalia. 42 RR 162, 166-75; SX 444, 455. Also on
August 20, 2006, Balderas pled guilty for possession of contraband and
received five days loss of privileges. 42 RR 175-77; SX 446. On April 3, 2007,
Balderas was disciplined for showing a gang sign, received a thirty-day
disciplinary separation and was transferred to administrative segregation. 42
RR 177-780; SX 447. On June 16, 2008, Balderas was disciplined for fighting,
resulting in a loss of privileges for fifteen days. 42 RR 179-80; SX 448. On April
20, 2009, Balderas was disciplined for tampering with the jail cell, and received
twenty-day loss of visitation and commissary privileges. 42 RR 180-81; SX 449.
On May 26, 2009, Balderas was found guilty of possession of a manufactured
weapon and received thirty days disciplinary separation. 42 RR 181-83; SX
450. Balderas pled guilty to the September 16, 2009 charge of destroying,
altering, or damaging county property, resulting in ten days loss of visitation
and commissary privileges. 42 RR 182-83; SX 457. On April 14, 2009, Balderas
18
was found guilty of possession of contraband resulting in a fifteen-day loss of
privileges. 42 RR 183; SX 452. On June 7, 2010, Balderas was found guilty of
misuse of medication, resulting in twenty days loss of privileges. 8 42 RR 18387; SX 453. On September 25, 2012, Balderas received an administrative
charge for possession of contraband—the highest charge possible in the Harris
County Jail leading to a state charge from the district attorney’s office—for
which he received thirty days loss of privileges. 9 42 RR 187; SX 454. On July
24, 2013, Balderas was sanctioned for possession of contraband—two brass
drill bits—resulting in 15 days loss of privileges. 42 RR 187-210; SX 455.
Finally, Chris Aguero, former Harris County Sheriff’s Deputy, testified
that on May 10, 2009, he was letting Balderas out of his cell when Balderas
grabbed a pocket knife from Aguero’s pocket and pointed it at him. Balderas
eventually threw the knife down to the first level of the jail. 42 RR 257-68.
The State-Court and Federal Appellate Proceedings.
Balderas was convicted and sentenced to death in March 2014. See 12
CR 3284, 3334-45, 3355. The CCA affirmed the judgment on November 2, 2016.
Petition Appendix E. This Court denied certiorari review of that decision on
In his cell officers found thirty-four pills, a pen, and 2 razor blades. 42 RR 24954; SX 453.
8
A cell search revealed 123 prescription pills; some were packaged individually,
and many were not prescribed to Balderas. See 42 RR 213-20, 228-40; SX 458.
9
19
February 27, 2017. Balderas v. Texas, 137 S. Ct. 1207 (2017). The CCA denied
Balderas’s application for writ of habeas corpus on December 18, 2019. Ex
parte Balderas, No. WR-84-066-01, 2019 WL 6885361 (Tex. Crim. App. 2019)
(Petition Appendix A). The instant petition followed.
REASONS FOR DENYING THE WRIT
The question that Balderas presents for review is unworthy of the
Court’s attention. Supreme Court Rule 10 provides that review on writ of
certiorari is not a matter of right, but of judicial discretion, and will be granted
only for “compelling reasons.” Where a petitioner asserts only factual errors or
that a properly stated rule of law was misapplied, certiorari review is “rarely
granted.” Id.
As shown below, no compelling reason exists to review this case. And
even if the Court was inclined to grant review, it need not do so in the instant
proceeding because Balderas has yet to seek federal habeas corpus relief. As
Justice Stevens noted:
This Court rarely grants review at this stage of the litigation even
when the application for state collateral relief is supported by
arguably meritorious federal constitutional claims. Instead, the
Court usually deems federal habeas proceedings to be the more
appropriate avenues for consideration of federal constitutional
claims.
Kyles v. Whitley, 498 U.S. 931, 932 (1990) (Stevens, J., concurring).
20
Balderas suggests that the Court should consider his claims now because
it will be more difficult for him to prevail during federal habeas review as a
result of Congress’s passage of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). Petition at 38-40. But this argument is misguided.
AEDPA standards are “‘difficult to meet[]’ because the purpose of AEDPA is to
ensure that federal habeas relief functions as a ‘guard against extreme
malfunctions in the state criminal justice systems,’ and not as a means of error
correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (quoting Harrington v.
Richter, 562 U.S. 86, 102–03 (2011)). AEDPA “modified a federal habeas court’s
role in reviewing state prisoner applications in order to [. . .] to ensure that
state-court convictions are given effect to the extent possible under the law.”
Bell v. Cone, 535 U.S. 685, 693 (2002). Granting Balderas’s request would thus
frustrate this clear purpose. This Court should therefore decline to allow
Balderas to circumvent the AEDPA by granting his petition at this premature
juncture—especially since Balderas’s petition presents no important questions
of law to justify the exercise of certiorari jurisdiction in the first place.
Balderas Has No Due Process Right to State Collateral
Proceedings.
Balderas contends that the state court’s failure to follow mandatory
statutory procedures for adjudicating habeas corpus claims violated his right
to due process in those proceedings. Petition at 20. But this Court has held that
21
a petitioner like Balderas has no due process right to collateral proceedings at
all. See Murray v. Giarratano, 492 U.S. 1, 7-8 (1989); Pennsylvania v. Finley,
481 U.S. 551, 557 (1987). “State collateral proceedings are not constitutionally
required as an adjunct to the state criminal proceedings and serve a different
and more limited purpose than either the trial or appeal.” Giarratano, 492 U.S.
at 10. Therefore, this Court held, “[t]he additional safeguards imposed by the
Eighth Amendment at the trial stage of a capital case are . . . sufficient to
assure the reliability of the process by which the death penalty is imposed.” Id.
And because Balderas has no due process right to the proceeding itself,
he also has no due process right to the appointment of counsel during those
proceedings. Finley, 481 U.S. at 555. Therefore, it stands to reason that, if
Balderas has no constitutional right to collateral review or to the effective
assistance of counsel in those collateral proceedings, the state court’s alleged
failure to follow state statutory procedures in his collateral proceeding should
also implicate no due process right.
More importantly, where a State allows for post-conviction proceedings,
“the Federal Constitution [does not] dictate[] the exact form such assistance
must assume.” Finley, 481 U.S. at 559; cf. Estelle v. McGuire, 502 U.S. 62, 67–
68 (1991) (“federal habeas corpus relief does not lie for errors of state law”)
(internal quotation marks and citation omitted); Henderson v. Cockrell, 333
F.3d 592, 606 (5th Cir. 2003) (infirmities in state habeas proceedings do not
22
state a claim for federal habeas relief). Indeed, as the Court has explained,
“Federal courts may upset a State’s postconviction procedures only if they are
fundamentally inadequate to vindicate the substantive rights provided.” Dist.
Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009).
This is quite a different position from those situations involving the right
to counsel on first appeal and the right to be free from cruel and unusual
punishment, i.e., competency to be executed and intellectual disability.
Because these rights are firmly grounded in the Constitution, any measures
taken by the States to allow vindication of them will necessarily implicate due
process. See Brumfield v. Cain, 576 U.S. 305 (2015); Panetti v. Quarterman,
551 U.S. 930 (2007); Evitts v. Lucy, 469 U.S. 387 (1985). For these reasons,
Balderas is not entitled to certiorari review.
But, as will be discussed below, the state court complied with all
statutory requirements and provided Balderas with a fair opportunity to
present evidence in support of his habeas appeal. Therefore, Balderas received
exactly what he was entitled to receive under state law and cannot claim any
deprivation of due process. Finley, 481 U.S. at 559.
The State Court Complied with Texas Code of Criminal
Procedure Article 11.071 and the Fourteenth Amendment.
Balderas argues the trial court’s adjudication of his claims deviated
substantially from statutory process and did not satisfy the Fourteenth
23
Amendment due process requirements. Petition at 24. Specifically, he
complains that (1) the trial court did not designate all his clams as controverted
issues of material fact, pursuant to article 11.071 § 9, instead limiting its
designation to only two issues; (2) the trial court limited the scope of
evidentiary development of those two issues, and did not allow Balderas to
confront adverse witnesses; and (3) the CCA summarily adopted the trial
court’s proposed findings. See Petition at 20, 24-38. Balderas contends that,
considered in aggregate, the trial court’s alleged deviations from the
statutorily-mandated proceeding rendered the fact-finding process arbitrary
and unfair, and nothing more than “a sham,” and concludes “death-sentenced
persons in Texas cannot rely on the fair application of the statutory postconviction procedural rules.” Petition at 37-38.
Certiorari review is not warranted on these claims. Balderas does not
present this Court with any precedent that specifically holds that a Texas
habeas court’s alleged failure to comply with article 11.071, § 9, constitutes a
due-process violation requiring reversal of the lower court. Indeed, as noted,
state habeas proceedings are not required under the Constitution;
consequently, any failure by the state court to follow the State’s own
evidentiary rules and procedures cannot rise to a constitutional violation in the
general run of cases.
24
Regardless, the record shows that the procedures utilized in his habeas
proceedings more than adequately complied with both due process and article
11.071. Balderas concedes that the Texas state habeas statute facially complies
with the Fourteenth Amendment. Petition at 24. He also acknowledges that
the habeas court may select the manner in which it hears evidence, Petition at
31, and that due process does not require live testimony, Petition at 21.
Nevertheless, Balderas asserts that the state habeas court’s purported failure
to adhere to article 11.071, § 9 deprived him of due process. But, as
demonstrated below, Balderas fails to show that his state habeas proceedings
did not comply with due process or even the governing statute. Accordingly,
certiorari review should be denied.
A.
Balderas received due process.
Balderas fails to provide any precedent that specifically holds that the
purported deviations from article 11.071 that occurred in his case can render
an applicant’s proceeding constitutionally inadequate under the Fourteenth
Amendment. Instead, Balderas extrapolates that the trial court’s alleged
violations of article 11.071 are impermissible pursuant to this Court’s holdings
in cases such as Townsend v. Sain, 372 U.S. 291 (1963), Morgan v. United
States, 298 U.S 468 (1936), Goldberg v. Kelly, 397 U.S. 254 (1970), and Ford v.
Wainwright, 477 U.S. 399 (1986) (Powell, J., concurring). Petition at 20-24.
25
But even assuming arguendo that a state habeas court’s noncompliance
with article 11.071 could rise to the level of a due process violation, the record
plainly shows that Balderas was afforded due process’s core protections. Ford,
477 U.S at 413 (“‘[t]he fundamental requisite of due process of law is the
opportunity to be heard’”) (citation omitted); Tercero v. Stephens, 738 F.3d 141,
148 (5th Cir. 2013) (federal habeas case extending core procedural due process
protections to inmates seeking to prove that they are ineligible for the death
penalty due to being underage, but noting that “states retain discretion to set
gateways to full consideration and to define the manner in which habeas
petitioners may develop their claims” and ‘“[d]ue process does not require a full
trial on the merits’; instead, petitioners are guaranteed only the ‘opportunity
to be heard.’”) (footnotes and citations omitted); see also Petition at 21 (“Due
process, at a minimum, requires notice and the opportunity to be heard in a
manner appropriate to the nature of a case.”). In this case, Balderas had notice
and the opportunity to be heard. During state habeas, Balderas was
represented by the Office of Capital and Forensic Writs, a state public defender
statutorily mandated to provide Texas death row inmates with full-service
postconviction representation, and he filed a lengthy habeas application
raising fourteen claims for relief and accompanied by seventy-four exhibits. See
1 SHCR 1-396; 2 SHCR 397-666; 3 SHCR 667-965. The trial court designated
all fourteen issues for further review pursuant to article 11.071, § 9, see 5
26
SHCR 1450-51, and ordered affidavits from trial counsel addressing six of the
fourteen claims, 5 SHCR 1455-59. The court also ordered an evidentiary
hearing for additional development of two issues, at which Balderas presented
four witnesses. 7 SHCR 1948-49. And Balderas submitted his own proposed
findings of fact and conclusions of law for consideration by the court. 9 SHCR
2376-2759. The CCA, based on its own review as well as the findings and
conclusions of the trial court, denied relief in a reasoned opinion that
specifically addressed the claims raised in Balderas’s habeas application. See
Petition Appendix A.
The Texas habeas system thus gave Balderas the means and opportunity
to make claims, marshal evidence in support of his cause, and address the
adverse evidence adduced against him. Simply because Balderas did not
prevail does not mean that he was denied notice or an opportunity to be heard.
B.
The state habeas proceeding complied with article 11.071.
As to Balderas’s specific complaints that (1) the trial court did not
designate all his clams as controverted issues of material fact, pursuant to
article 11.071 § 9; (2) the trial court limited the scope of evidentiary
development; and (3) the CCA summarily adopted the trial court’s proposed
findings, see Petition at 20, 24-38, these complaints fail to demonstrate a due
process violation. For the reasons discussed below, certiorari should be denied.
27
1.
The trial court designated all issues for review.
Balderas’s first contention is plainly meritless because the trial court did
indeed designate all fourteen issues. Both parties filed motions asking the trial
court to designate all fourteen issues pursuant to article 11.071 § 9. 5 SHCR
1428-49. 10 The trial court signed the State’s proposed order, but noted:
[P]ursuant to Tex. Code Crim. Proc. art. 11.071, the Court will
resolve—based on the manner the Court deems appropriate—some
of the designated issues by application of the applicable law, some
by review of the appellate record and application of applicable law,
some by review of the pleadings, some by review of affidavits
submitted by trial counsel, some by recollection of the trial court,
and some by review of submitted habeas exhibits.
5 SHCR 1450-51. This was permissible under the statute. See Tex. Code. Crim.
Proc. art. 11.071 § 9 (a) (“To resolve the issues, the court may require affidavits,
depositions, interrogatories, and evidentiary hearings and may use personal
recollection.”)
Balderas’s complaint stems largely from the trial court’s refusal to allow
him to develop evidence at the hearing in support of all fourteen claims. See
Petition at 24-25. But the court is not required to hold an evidentiary hearing
on all claims, especially where the record is sufficient to resolve the issues. See
e.g., Ex parte Simpson, 136 S.W.3d 660, 663 (Tex. Crim. App. 2004) (although
While the State agreed the trial court should designate all fourteen issues, the
State did not agree that a live evidentiary hearing was necessary. See 5 SHCR 1448.
10
28
advisable to have evidentiary hearing on intellectual disability claims, it is not
necessary where applicant relies primarily upon trial testimony, both sides had
opportunity to fully develop pertinent facts at trial, and habeas judge had
opportunity to assess credibility and demeanor of witnesses at trial); Ex parte
Hines, No. WR–40,347–02, 2005 WL 3119030, *1 (Tex. Crim. App. Nov. 23,
2005) (“While we have said that the better practice is to conduct a live hearing
in cases such as this, . . . the evidence before the trial court was extensive and
we did not specify that a live hearing was necessary when we remanded the
case.”). This was certainly true in this case where Balderas had submitted a
lengthy application for habeas relief accompanied by seventy-four exhibits, and
where the trial court ordered trial counsel to submit affidavits addressing six
of the fourteen claims. See 5 SHCR 1455-59.
Balderas suggests that the seventy-four exhibits proffered at the
pleading stage should not be considered evidence for the purposes of 11.071
§ 9, arguing that his only burden at the pleading stage is to allege facts which,
if true, might entitle him to relief. See Petition at 25, and n.6; see also Petition
at 29-30. This argument finds no support in Texas law. See Ex parte Campbell,
226 S.W.3d 418, 423 (Tex. Crim. App. 2007) (noting that exhibits attached to
the State’s motion to dismiss “are as much a part of this habeas record as are
applicant’s attachments”); Ex parte Fassi, 388 S.W.3d 881, 887 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) (finding that documents attached as
29
exhibits to the defendant’s 11.072 habeas application and the State’s response
could be considered by the habeas court even though they were not introduced
into evidence by any party); Ex parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim.
App. 1977) (relying on Killion v. State to affirm where court and parties treated
governor’s warrant in habeas corpus hearing as if admitted into evidence);
Killion v. State, 503 S.W.2d 765, 765–66 (Tex. Crim. App. 1973) (court
permitted to consider defendant’s stipulations to charged offenses where
considered by trial court in adjudicating guilt for theft and burglary, although
written stipulations were not admitted into evidence). Indeed, the primary case
cited by Balderas as support, see Petition at 25, says only that, while evidence
is not required at the preliminary stage, a state writ application “may, and
frequently
does,
also
contain
affidavits,
associated
exhibits,
and
a
memorandum of law to establish specific facts that might entitle the applicant
to relief.” Ex parte Medina, 361 S.W.3d 633, 637-38 (Tex. Crim. App. 2011). At
no point does Medina suggest that these proffers are not part of the record. 11
Furthermore, the record plainly indicates the trial court’s intent to
consider all the exhibits and documentary evidence presented by the parties in
Balderas also cites Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App.
1988), and Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998), for the proposition
that sworn allegations are insufficient proof to meet his evidentiary burden. Petition
at 30. However, both cases address the insufficiency of sworn allegations from the
applicants themselves proffered as proof of their claims.
11
30
making its determination. See 5 SHCR 1450-51 (After designating all fourteen
issues, trial court stated it would resolve “some of the designated issues . . . by
review of the pleadings, . . . and some by review of submitted habeas exhibits.”)
(emphasis added). In fact, prior to the start of the evidentiary hearing, habeas
counsel sought to move into evidence “all of the exhibits and affidavits in
support of the initial application,” but the trial court explicitly stated that such
evidence was already part of the record and did not need to be submitted into
evidence at the hearing. 4 SHRR 17, 296-97. It is unreasonable to assume the
court did not consider as evidence the 74 exhibits, comprising 569 pages of the
record originally submitted with Balderas’s petition, especially after such
explicit declarations that this evidence was part of the record and would factor
into the court’s determination.
2.
The trial court is permitted to limit review.
Balderas next complains that the trial court limited the scope of his
evidentiary development to only two issues, and only allowed him to present
two specific witnesses on the alibi issue (although he presented two additional
witness on the false-testimony claim), without permitting him the opportunity
to confront adverse witnesses—trial counsel who provided affidavits. Petition
at 25, 29-32. The trial court’s order did not violate due process.
After the trial court ordered the submission of affidavits from trial
counsel, responding to the allegations raised in claims 3, 4, 6, 8, 9, and 10, see
31
5 SHCR 1455-59, see also id. 1471-91 (affidavits); the State moved for the trial
court to find that controverted, previously unresolved factual issues material
to the legality of the Balderas’s confinement no longer existed, and order both
parties to submit proposed findings of fact and conclusions of law within thirty
days; the State reasoned that Balderas’s legal and factual claims have been
thoroughly addressed in the State’s answer and exhibits, and “are resolvable
through appellate record, applicable case law, and credible affidavits of trial
counsel.” 6 SHCR 1824-41 (State’s Response to Appl.’s Mtn. in Opp. to State’s
Mtn. for Trial Court to Order Sub. Of Prop. Findings of Fact and Renewed Mtn.
for Live Evid. Hrg.); See also 5 SHCR 1494-1504 (Unopposed Mtn. for 10-Day
Ext. of Time to File Mtn. and Opp. to State’s Mtn.); 6 SHCR 1659-1760 (hearing
on motions). In the alternative, the State proposed a supplemental designation
of just two issues to be resolved at an evidentiary hearing, narrowly tailoring
the hearing to the issues of the State’s alleged knowing presentation of false
testimony and trial counsel’s failure to investigate potential alibi evidence. 6
SHCR 1855-56. The trial court ordered a hearing to resolve the limited issues
proposed by the State. 7 SHCR 1948-49.
Balderas admits, “the habeas court is allowed to select the manner in
which it hears evidence,” but states, without citation to any legal authority,
that “the habeas court does not have the authority to choose the specific
witnesses [that] can be called.” Petition at 31. To the contrary, “Article 11.071
32
makes the habeas judge ‘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.’” In re Harris, 491
S.W.3d 332, 335-36 (Tex. Crim. App. 2016) (citing Ex parte Simpson, 136
S.W.3d at 668). This precedent “allots the trial judge a measure of discretion
in managing the process of fact-finding in a capital writ proceeding.” Id. at 336.
Furthermore, article 11.071, § (9)(a) explicitly permits trial judges to
resolve controverted, previously unresolved material facts by “affidavits,
depositions, interrogatories, and hearings, as well as using personal
recollection.” And in the federal habeas context, the Fifth Circuit has
“repeatedly found that a paper hearing [in state court] is sufficient to afford a
petitioner a full and fair hearing on the factual issues underlying the
petitioner’s claims.” Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000); Hines
v. Thaler, 456 F. App’x 357, 363 (5th Cir. 2011) (unpublished) (noting that
“while a live evidentiary hearing may be recommended in some Atkins[ 12] cases
in Texas, a thorough presentation of evidence at the state habeas proceeding
can obviate the need for such a hearing”); Morrow v. Dretke, 367 F.3d 309, 315
12
Atkins v. Virginia, 536 U.S. 304 (2002).
33
(5th Cir. 2004) (presumption of correctness applies to state court fact findings
made after “paper hearing”); Armstead v. Scott, 37 F.3d 202, 208 (5th Cir. 1994)
(finding that a hearing by affidavit was adequate to allow presumption of
correctness to attach to the state court’s factual findings); see also Strong v.
Johnson, 495 F.3d 134, 139 (4th Cir. 2007) (“[C]redibility determinations may
sometimes be made on a written record without live testimony. Specifically,
there is no prohibition against a court making credibility determinations based
on competing affidavits in certain circumstances.”); Tanberg v. Sholtis, 401
F.3d 1151, 1161 (10th Cir. 2005) (a trial court’s “determination of credibility of
affidavits [will not be disturbed on appeal] unless that determination is
without support in the record, deviated from the appropriate legal standard,
or followed a plainly erroneous reading of the record.”). In short, the trial court
did nothing improper, and violated no constitutional right, by limiting the
issues and witnesses for evidentiary development during the state habeas
proceeding, and by relying on trial-counsel affidavits without allowing crossexamination.
Balderas suggests that the initial trial judge, Judge Kristin Guiney,
found that Balderas met his burden of demonstrating controverted issues but
the subsequently-appointed judge unfairly narrowed the hearing. Petition at
27-28. However, while Judge Guiney did sign the initial order designating all
fourteen issues for consideration, she specifically noted that she may resolve
34
some designated issues on the law; review of the existing record, pleadings,
affidavits of counsel; and habeas exhibits; and by the court’s recollection. 5
SHCR 1450-51. At no point did Judge Guiney suggest she would hold a hearing
or gather evidence on all fourteen issues. Therefore, Judge Wortham’s
narrowing of the evidentiary development following the submission of trial
counsels’ affidavits was not inconsistent with Judge Guiney’s initial
pronouncement and, as stated, was not impermissible under statute or law.
Balderas also complains that the CCA refused to consider evidence
disclosed by the State, after the conclusion of the state habeas proceedings.
Petition at 33-35. Specifically, as part of an ongoing-effort to comply with
Balderas’s requests for discovery, 13 on August 20, 2018, the State filed a
disclosure, pursuant to Texas Code of Criminal Procedure Article 39.14(h) and
(k), containing five points of information. See 10 SHCR 2960-61. At issue now
are two of the five points:
On April 19, 2018, Balderas filed a Motion to Compel Disclosure of Exculpatory
and Impeachment Evidence. 7 SHCR 1956-69. At the May 2, 2018 prehearing status
conference, the State acknowledged its statutory disclosure obligations under Article
39.14, and assured the trial court that they would continue to screen work product
that had not been previously disclosed pursuant to a public information request, but
expressed that it was “an exorbitant amount of work” that could not be accomplished
before the evidentiary hearing. The State would continue the task even after the
evidentiary hearing. See 2 SHRR 16-19, 31, 95-96. The trial court characterized the
State’s obligation of disclosure as “ongoing,” and admonished the State to adhere to
its statutory and ethical obligations, reminding the State that “the rules impose a
duty to continue to update and modify any relevant discovery that is found within a
reasonable search of due diligence.” 2 SHRR 30, 33-34, 60, 74. The trial court set no
timeline for the State’s compliance with court-ordered disclosures. 2 SHRR 95-96.
13
35
• On December 10, 2013, prosecutors Traci Bennett,
Caroline Dozier, and Mary McFaden met with witness Alejandro
Garcia and Garcia’s counsel, Bob Loper. At this meeting, Garcia
stated that, at school, Eduardo “Powder” Hernandez’s brother told
Garcia that MS had killed Hernandez.
• On December 19, 2013, prosecutors Traci Bennett,
Caroline Dozier, and Mary McFaden met with witness Alejandro
Garcia and Garcia’s counsel, Bob Loper. At this meeting, Garcia
stated that he did not suspect that the applicant killed Eduardo
“Powder” Hernandez, that the applicant did not talk to Garcia
about killing Hernandez, and that Garcia thought MS killed
Hernandez.
10 SHCR 2961.
On December 3, 2018, based upon the disclosed information, Balderas
filed his Motion for Stay of Proceedings and Remand to Reopen Evidentiary
Hearing Pursuant to Tex. R. App. P. 73.7(b). The State filed a response in
opposition on January 2, 2019, and Balderas filed a Reply on January 10, 2019.
In opposition to Balderas’s motion to reopen the State argued that
(1) this information was not novel—these rumors were previously revealed at
trial; (2) the disclosures did not affect Balderas’s defense since he has never
contended that Eduardo was murdered by a rival gang, but by another member
of his own gang; and (3) Balderas has repeatedly challenged Garcia’s
credibility, veracity, and testimony, rendering these disclosures similarly not
credible. See State’s Resp. in Opp. to the Appl.’s Req. to Stay Proc.’s and
Remand to Reopen Evid. Hrg., at 19-22. The CCA denied Balderas’s application
36
on December 19, 2019, without reopening the hearing. The CCA violated no
due process right in concluding that the disclosure was not worthy of remand.
Balderas fails to demonstrate a due process violation from the state
court’s failure to remand for consideration of the evidence. Balderas tries to
draw comparisons to Wearry v. Cain, 136 S. Ct. 1002 (2016), where this Court
reversed the state court on a Brady 14 claim for the State’s failure to disclose
material evidence that cast doubt on the credibility of the State’s star witness.
See Petition at 33-35. Specifically, the star witness contacted the police and
said Wearry had confessed his involvement in the crime, but substantially
changed his account over the course of four separate statements such that his
testimony differed significantly from his original account. Wearry, 136 S. Ct.
at 1003. A second witness also gave inconsistent statements and asserted that
he was testifying of his own volition and sought no deal with the State. Id. at
1003. The only other evidence at trial was circumstantial. Id. On appeal,
Wearry proved that the State withheld evidence that the star witness had a
vendetta against Wearry and had tried to enlist others to testify falsely against
him, and the State suppressed medical records regarding another party that
undercut the star witness’s testimony. Id. at 1004-05. On the second witness,
the State failed to disclose that, contrary to his testimony, he had twice sought
14
Brady v. Maryland, 373 U.S. 83 (1963).
37
a deal from the State, and police offered to talk to the district attorney on his
behalf if he testified. Id. at 1004. This new evidence undermined confidence in
the jury’s verdict because the State’s case was built on the jury crediting the
testimony of two witnesses. Id. at 1006.
The disclosures at issue in Balderas’s case pale in comparison. Indeed,
the Alejandro Garcia disclosures involve hearsay and rumors, from a witness
who did not testify at the guilt-innocence phase of trial. And, as the State
argued, the information contained in these statements was well-known at trial.
The friendships of various witnesses with MS-13 gang members, and the
rivalry between gangs, particularly MS-13 and LTC, was well-known prior to
trial and explored on the record by both parties. See, e.g., 24 RR 40-42, 51-53,
76-80, 90, 96-98, 119-20, 234-41, 261-64; 25 RR 40; 26 RR 52-53, 63, 138-39,
145-50; 27 RR 93, 97-99; 28 RR 109-10, 141, 160, 204-209; 34 RR 250-51; 35
RR 26-27, 31-33, 107, 227-28; 36 RR 278-79; 37 RR 179, 198, 200, 202; 41 RR41.
Regardless, Balderas did not argue that a rival gang killed Eduardo—despite
the aforementioned-evidence. Instead, he has tried to prove that a member of
his own gang killed him and blamed Balderas. See 28 RR 223-26; 2 SHRR 51920 (affidavit of Walter Benitez), 654-55 (affidavit of Jose Perez).
Further, Alejandro Garcia testified during the punishment phase of trial
that Eduardo’s brother told Garcia about his death while at school, 34 RR 252;
and that, on the night of the murder, Balderas and Diaz came to Garcia’s
38
house, but did not talk about the murder, 34 RR 253. Garcia maintained that
he found out about Eduardo’s death at school, and that he had never gone to
meet Diaz at the apartments where the Eduardo was killed. 34 RR 253-54; 35
RR 106-07; see also 35 RR 91 (on cross-examination, maintained he does not
know anything about an LTC member involved in Eduardo’s shooting). The
State’s disclosures were consistent with and could not be used to discredit
Garcia’s testimony. Accordingly, the substance of the State’s August 2018
disclosures did not constitute new information, nor were they material to the
outcome of his trial. The CCA reasonably declined to remand to the trial court.
3.
The CCA denied relief on its own review of the record.
Finally, Balderas complains that the CCA summarily adopted the trial
court’s proposed findings after making a merits determination on several
claims based entirely on pleadings. Petition at 20, 29. But, as noted, the trial
court is permitted by statute to resolve controverted issues by means other
than a live evidentiary hearing. See Tex. Code. Crim. Proc. art. 11.071 § 9 (a).
Further,
Balderas
submitted
seventy-four
exhibits
with
his
habeas
application, the trial court collected affidavits from trial counsel addressing six
of the claims, and the trial court held a live hearing with four witnesses
addressing two of Balderas’s claims. Balderas also submitted his own proposed
findings and conclusions—the trial court simply rejected them. Regardless, the
CCA did not “summarily” adopt the trial court’s findings. Rather, the court
39
issued a thorough opinion after conducting its own review of the record,
denying relief, “[b]ased upon the trial court’s findings and conclusions and our
own review.” See Petition Appendix A, at 2, 7.
Thus, the record shows that Balderas’s proceedings comported with the
requirements of Article 11.071. And even if the state habeas proceedings did
deviate from Article 11.071 in some minor way, the fact-finding process
remained reliable, and any error was harmless. Certiorari should therefore be
denied on this claim.
CONCLUSION
The CCA correctly denied Balderas’s state habeas application. For the
reasons set forth above, this petition for a writ of certiorari should be denied.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
MARK PENLEY
Deputy Attorney General
for Criminal Justice
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
*Attorney in charge
__________________________
*TOMEE M. HEINING
Assistant Attorney General
40
Texas Bar No. 24007052
Office of the Attorney General
Criminal Appeals Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 936-1600
Telecopier: (512) 320-8132
tomee.heining@oag.texas.gov
COUNSEL FOR RESPONDENT
41
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.