Appendix — Miller-El v. Cockrell

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IN THE SUPREME COURT OF THE UNITED STATES.

Supreme Court, U.S.

FiirFdTy

October Term, 2001 DEC 1 1 2001

OFFICE OF THE CLERK

THOMAS JOE MILLER-EL,

Petitioner,

Wwe

JANIE COCKRELL,

Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent.

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

THIS IS A DEATH PENALTY CASE.

MR. MILLER-EL IS SCHEDULED TO BE EXECUTED ON

FEBRUARY 21, 2002.

Jim Marcus* a chy

Eli t I D 7 iler ”"

TEXAS DEFENDER SERVICE RECEIVED

412 Main Street

Suite 1150 JAN 1.0 7002

Houston, Texas 77002 oi

TEL (713) 222-7788 OFFICE OF THE CLERK

FAX (713) 222-0260 SUPREME COURT. US:

* Counsel of Record for Thomas Joe Miller-El

10.

11.

12.

13.

14.

APPENDICES

Miller-El v. Johnson, 261 F.3d 445 (5" Cir. 2001).

Miller-El v. State, No. 69, 677 (Tex. Crim. App. Sept. 16, 1992).

Findings of Fact, Conclusions of Law, and Order, Ex parte Thomas Joe Miller-El, No.

85-78668-L (Dist. Ct. of Dallas County, Criminal District Court Number Five, April 16,

1996).

Order, Ex Parte Miller-El, Writ No. 31,000-01 (Tex. Crim. App. Jun. 17, 1996).

Findings and Recommendations of the United States Magistrate Judge, Miller-El v.

Johnson, No. 3-96-CV-1992-H (N.D. Tex. Jan. 31, 2000).

Memorandum Opinion and Order, Miller-El v. Johnson, No. 3:96-CV-1992-H (N.D. Tex.

June 5, 2000).

Miller-El v. Johnson, No. 00-10784 (5" Cir. Sept. 12, 2001) (Order On Petition for

Rehearing and Rehearing En Banc).

Jury Selection in a Criminal Case, Memorandum, Jon Sparling.

Affidavit of Ms. Jennifer Balido.

Steve McGonigle & Ed Timms, Race Bias Pervades Jury Selection: Prosecutors

Routinely Bar Blacks, Study Finds, DALLAS MORNING NEWS, Mar. 9, 1986, at Al

(photocopy).

Steve McGonigle & Ed Timms, Race Bias Pervades Jury Selection: Prosecutors

Routinely Bar Blacks, Study Finds, DALLAS MORNING NEWS, Mar. 9, 1986, at Al

(Westlaw reprint).

Ed Timms & Steve McGonigle, A Pattern of Exclusion: Blacks Rejected from Juries in

Capital Cases, DALLAS MORNING NEWS, Dec. 21, 1986, at Al (photocopy).

Ed Timms & Steve McGonigle, A Pattern of Exclusion: Blacks Rejected from Juries in

Capital Cases, DALLAS MORNING NEWS, Dec. 21, 1986, at Al (Westlaw reprint).

Juror Questionnaire of Joe Warren.

U.S. COURT OF APPEALS

FILED

UNITED STATES COURT OF APPEALS AUG 0 7 2001

For the Fifth Circuit

CHARLES R, FULBRUGE II!

CLERK

No. 00-10784

THOMAS JOE MILLER-EL,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent -Appellee.

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, DeMOSS and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Thomas Joe Miller-El (“Miller-E1”), who was

convicted of capital murder in Texas state court and who was

sentenced to death therefor, and whose petition for habeas corpus

relief and request for a Certificate of Appealability (*“COA”)

therefrom were both denied by the federal district court below, now

seeks from this Court a COA pursuant to 28 U.S.C. § 2253 (c) (2)..

‘For all of the reasons set forth below, we DENY the request for a

COA.

I. BACKGROUND

In 1985, Miller-El’s wife, Dorothy Miller-El, was employed as

a night maid for the lobby area of the Holiday Inn South. She

arranged for a religious convention for the Moorish Science

Temple’s Feast on November 8-10, 1985. Her husband was among the

attendees. After the convention, Dorothy did not return to work.

Shortly before midnight on November 15, 1985, Dorothy returned to

the Holiday Inn claiming that she was there to pick up her

paycheck. She was given access to the office area near the vault.

During this time period, four hotel employees were working,

Doug Walker, Donald Hall, Anthony Motari, and Mohamed Ali

Karimijoji. Hall, the chief auditor, was training Mohamed

regarding the hotel’s daily closing procedures. Hall instructed

Mohamed to close out the cash registers, a process which would take

one-half hour. Mohamed encountered a woman who claimed that she

needed accompanying while she waited for her ride. Mohamed sent

her to the front desk area without leaving the locked area he was

in.

At the front desk, a man later identified as Miller-El

appeared and requested a room from Hall. Witnesses identified

Miller-El from having seen him at the Moorish Feast convention the

previous week. A younger man, later identified as Kenneth Flowers

.and dressed in-army fatigues and a headset, peered around the

corner as Hall was giving Miller-El his room key, and once spotted

by Hall, he also approached the counter. Miller-El told Hall that

he would be needing two beds. Seconds later, Miller-El and Flowers

pulled out weapons. Miller-El brandished a semi-automatic “tech”

nine millimeter machine gun, with a flash suppressor for night use.

Flowers had a .45 caliber hand gun.

Hall complied with Miller-El’s instructions to empty the cash

drawer and place the money on the counter. Miller-El then ordered

Hall to bring any other people in the back out front. Hall

instructed Walker to come out. Flowers jumped over the counter and

the two men instructed Hall and Walker to lay on the floor. The

two men led Hall and Walker to the bellman’s closet which they

ordered opened. Once the two men removed all of the valuables from

the closet and took Walker’s and Hall’s wallets, Miller-El tied

Walker’s hands behind his back, tied his legs together, and gagged

him with strips of fabric. Flowers did the same to Hall. Walker

was laid on his face and Hall was laid wn his side.

Miler-El asked Flowers if he was going to “do it” and Flowers

responded that he couldn’t. Flowers then left. Miller-El stood at

Walker’s feet, removed his glasses and then shot Walker in the back

two times. Hall closed his eyes after the first shot. He heard

two more shots and realized that he had also been wounded. Hall

tried to talk to Walker but only heard him choking. When he heard

}

-familiar voices outside, Hall screamed for help.

Several days after the robbery-murder, Officer Cagle was on

surveillance of an apartment complex believed to be Dorothy Miller-

El’s. He spotted Dorothy and Flowers. With the assistance of

back-up units, he stopped their vehicle and arrested them both.

Search warrants were executed for the residence, and “walkie-

talkie” headsets were found. When Miller-El was later arrested,

found in his possession was an arsenal of weapons including the

“tech” nine millimeter murder weapon.

II. PROCEDURAL HISTORY

Miller-El pleaded not guilty to and in March 1986 was tried

before a jury on the charge of capital murder during the course of

committing a robbery. On March 24, 1986, the jury returned with a

guilty verdict and at the conclusion of the sentencing phase, the

same jury answered in the affirmative to the special issues set

forth in the Texas Code. Accordingly, the trial court imposed upon

Miller-El the sentence of death.

Miller-El's conviction and sentence were automatically

appealed to the Texas Court of Criminal Appeals. On December 14,

1992, that court affirmed Miller-El's conviction and sentence in an

umpublished opinion. See Miller-El v. State, No. 69,677 (Tex.

Crim. App. 1992) (en banc) (unpublished). And on October 4, 1993,

the Supreme Court denied Miller-El's petition for writ of

certiorari. See Miller-El v. Texas, 114 S. Ct. 100 (1993).

Miller-El then filed an application for state habeas relief.

The state trial court judge entered findings of fact and

conclusions of law recommending denial of Miller-El’s state habeas

petition. On June 17, 1996, the Texas Court of Criminal Appeals

adopted the trial judge's findings of fact and conclusions of law

and denied Miller-El's application for state habeas corpus relief.

See Ex parte Miller-El, No. 31,001-01 (Tex. Crim. App. 1996)

(unpublished) .

On June 17, 1997, Miller-El filed his petition for habeas

corpus relief pursuant to 28 U.S.C. § 2254 in federal district

court. On August 12, 1997, Miller-El filed an amended petition for

habeas corpus. Miller-El’s petition was referred to a magistrate

judge who, on January 31, 2000, issued findings and conclusions,

recommending a denial of relief. On June 5, 2000, after receiving

objections and conducting a hearing on the magistrate judge’s

report and recommendation, the district court adopted the

magistrate’s findings and conclusions and denied Miller-El’s

petition for a writ of habeas corpus. The district court

subsequently denied Miller-El’s motion to alter or amend the final

judgment denying relief on June 21, 2000. Miller-El then filed a

notice of appeal in this Court and a motion for a COA in the

district court. On August 14, 2000, the district court denied

Miller-El's request for a COA on each of the issues raised herein.

It is Miller-el’s renewed request for a COA that is presently

-before us.

III. DISCUSSION

Miller-El seeks from this Court a COA on each of the following

issues: (1) whether the district court erred in overruling his

challenges of improper peremptory juror strikes; (2) whether the

state court erred in failing to conduct a sua sponte evidentiary

hearing regarding his competency to stand trial and in finding that

he was competent to stand trial in 1986; (3) whether the district

court likewise erred in failing to conduct a hearing regarding his

competency; and (4) whether the district court erred finding that

his First and Fourteenth Amendment rights were not violated by

admission of evidence, during the punishment phase of his trial,

relating to his affiliation with the Moorish Science Temple..

Miller-El's petition for writ of habeas corpus was filed on

June 17, 1997, and is thus governed by the provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh

v. Murphy, 117 S. Ct. 2059, 2068 (1997); United States v. Carter,

117 F.3d 262 (Sth Cir. 1997). Under AEDPA, before an appeal from

the dismissal or denial of a § 2254 habeas petition can proceed,

the petitioner must first obtain a COA, which will issue “only if

the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The same standards

that governed issuance of the pre-AEDPA version of the COA, the

certificate of probable cause (“CPC”), apply to requests for a COA.

- See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000). A petitioner

makes a “substantial showing” when he demonstrates that his

petition involves issues which are debatable among jurists of

reason, that another court could resolve the issues differently, or

that the issues are adequate to deserve encouragement to proceed

further. See id. at 1603-04.

Additionally, pursuant to § 2254(e)(1), a state court's

determination of a factual issue must be presumed correct, and the

habeas petitioner bears the burden of rebutting the presumption by

clear and convincing evidence. The presumption of correctness is

especially strong, where, as here, the trial court and the state

habeas court are one and the same. See Clark v. Johnson, 202 F.3d

760, 764 (Sth Cir.), cert. denied, 121 S. Ct. 84 (2000).

And while the nature of the penalty in a capital case is an

appropriate consideration for determining whether to issue a COA,

the severity of the penalty at issue does not, in and of itself,

require the issuance of a COA. See Clark, 202 F.3d at 764 (citing

Lamb, 179 F.3d at 356). However, in capital cases, doubts as to

whether a COA should issue must be resolved in favor of the

petitioner. See Lamb, 179 F.3d at 356. Cognizant of the foregoing

principles, we turn now to consider those issues raised by Miller-

El in his request for a COA.

Miller-El first contends that he is entitled to a COA

‘regarding his challenge to the prosecution's alleged improper use

of peremptory strikes to exclude African-Americans from his jury.

Miller-El argues that the Supreme Court’s decision in Swain v.

Alabama, 85 S. Ct. 6824 (1965), is still the applicable law

regarding challenges to improper peremptory strikes when evidenced

by data indicating historic, systematic discrimination against

African-Americans. However, during the pendency of Miller-El’s

direct appeal, the Supreme Court decided Batson v. Kentucky, 106

S. Ct. 1712 (1986), in which it stated that “(t)o the extent that

anything in Swain v. Alabama is contrary to the principles we

articulate today, that decision is overruled.” Batson, 106 S. Ct.

at 1725. Yet Miller-El contends that Batson only overruled one

part of Swain. According to Miller-El, while under Batson, a

defendant is no longer required to establish a prima facie case of

racial discrimination based upon proof of historical, consistent,

and systematic exclusion of African-Americans from juries, if

racial discrimination is proffered, nevertheless, under Swain, then

either the Swain or Batson evidentiary formulations apply. Miller-

El argues that the evidentiary formulation of Swain is, thus,

applicable to his claim of systematic exclusion. The government

contends that the Batson evidentiary formulation overruled the

Swain formulation on which Miller-El relies.

Under Swain, a defendant was required to show the prosecutor's

- “systematic use of peremptory challenges against Negroes over a

period of time” as a predicate. See Swain, 8S S. Ct. at 839.

Assuming that a defendant would be able to demonstrate a historical

pattern of discrimination continuing unabated to the defendant's

trial, the burden would then shift to the prosecutor to rebut the

defendant’s allegations. See Alexander v. Louisiana, 92 S. Ct.

1221, 1226 (1972). To satisfy his burden, the prosecutor could do

one of two things. First, the prosecutor could show that the

systematic disparity resulted from racially-neutral selection

procedures. Second, the prosecutor could “show neutral reasons for

the striking of all the blacks in petitioner’s trial itself.”

Willis v. Zant, 720 F.2d 1212, 1220-21 (11th Cir. 1983). However,

in any case under Swain, we have held that it is not sufficient to

prove a Swain violation based solely on statistical evidence from

prior trials without some concomitant showing that the intentional

and systematic discrimination continued “unabated” through to the

petitioner’s trial. See Evans v. Cabana, 821 F.2d 1065, 1068 (Sth

Cir. 1987). Additionally, the prosecutor could rebut the

petitioner’s showing with a showing of neutral reasons. Miller-E1l

argues that his showing under Swain requires only a showing of

historical and systematic discrimination in order to establish a

prima facie case.

In Batson, the Supreme Court, recognizing the “crippling

burden of proof” which Swain created, replaced the Swain

8 mee

‘evidentiary formulation with the new Batson standard. That new

standard involves the following three steps:

First: \ defendant can establish his prima

facie case of purposeful

discriminatory petit jury selection

solely upon evidence concerning the

prosecutor’s exercise of peremptory

challenges at the defendant’s trial.

Alternatively, the defendant can

make a prima facie case by proving

historic, systematic discrimination;

Second: If a defendant makes a prima facie

showing, the burden then shifts to

the government to provide a race-

neutral explanation for challenging

the excluded jurors;

Third: The trial court must then determine

if the defendant has established

purposeful discrimination, and the

trial court’s determination is a

finding fact entitled to the

applicable level of deference on

appellate review.

See Batson, 106 S. Ct. at 1723-24.

Despite Miller-El’s contention that the Swain evidentiary

framework was untouched by Batson, the Supreme Court has itself

explicitly stated “we reject [Swain’s) evidentiary formulation as

inconsistent with standards that have been developed since Swain

for assessing a prima facie case under the Equal Protection

Clause.” Id. at 1721; see also Georgia v. McCullum, 112 S. Ct.

2348 (1992) (stating that “[{i)n Batson v. Kentucky, [) the Court

discarded Swain’s evidentiary formulation”).

With respect to the second step in the Batson analysis, the

-Court stated specifically:

Once the defendant makes a prima facie showing, the

burden shifts to the State to come forward with a

neutral explanation for challenging black jurors.

Though this requirement imposes a limitation in

some cases on the full peremptory character of the

historic challenge, we emphasize that’ the

prosecutor’s [race-neutral] explanation need not

rise to the level justifying exercise of a

challenge for cause.

Batson, 106 S. Ct. at 1723. Miller-El suggests that contrary to

the above language in step two of the Batson evidentiary framework,

the level of explanation required to rebut the prima facie case is

governed by the rebuttal stage of the evidentiary formulation of

Swain and is a “heavy burden.” However, as we have noted, the

Supreme Court has explicitly overruled the evidentiary formulation

of Swain to the extent that it would contradict any principle,

evidentiary or otherwise, announced in Batson. See id. at 1725.

Thus, to the extent that the two burdens of rebuttal in Swain and

Batson are inconsistent, the Supreme Court has mandated that the

standard in Batson be applied. Here, Batson was decided during the

pendency of Miller-El’‘s direct appeal, and it is, thus, the

applicable standard for analyzing his challenge to the use of

peremptory juror strikes. See Griffith v. Kentucky, 107 S. Ct. 708

(1987) (holding that Batson governs claims by defendants whose

appeals were pending and non-final at the time Batson was decided).

Miller-El contends that the state court’s adjudication was an

eo)

-umreasonable application of Batson and that the court’s findings

were also unreasonable in light of his prima facie showing. His

primary challenge is to the district court’s alleged failure to

give proper weight and credit to the evidence which he presented

regarding the historical data evidencing exclusion of African-

American jurors.

The state court findings in this case on the issue of

Giscriminatory intent, despite Miller-El’s protestations to the

contrary, are entitled to great deference. See Hernandez v. New

York, 111 S. Ct. 1859, 1868 (1991). As an appellate court

reviewing a federal habeas petition, we are required by

§ 2254(d) (2) to presume the state court findings correct unless we

determine that the findings result in a decision which is

umreasonable in light of the evidence presented. And the

unreasonableness, if any, must be established by clear and

convincing evidence. See 28 U.S.C. § 2254(e) (1).

The detailed factual findings made by the state trial court

establish that each of the challenged African-American jurors was

stricken on race-neutral grounds. Miller-El has addressed the

peremptory challenge of six of the ten Batson jurors in his request

for a COA. We have now conducted an independent review of the

findings of the state court and of the evidence presented by

Miller-El in his application. Suffice it to say, and without

commenting on each of the challenged jurors and the reasons

proffered for their being excluded, we find that the state court’s

findings are not unreasonable and that Miller-El has failed to

present clear and convincing evidence to the contrary. The

findings of the state court that there was no disparate questioning

of the Batson jurors and that the prosecution's reasons for

striking the jurors was due to their reluctance to assess and/or

their reservations concerning the death penalty are fully supported

by the record.

Having determined that the state court’s adjudication neither

resulted in a decision that was unreasonable in light of the

evidence presented nor resulted in a decision contrary to clearly

established federal law as determined by the Supreme Court, we

conclude that this issue would not be debatable among jurists of

reason, that courts could not resolve the issues in a different

manner, and that the issue does not deserve encouragement to

proceed further. Miller-El has thus failed to make a substantial

showing of the denial of a constitutional right. Accordingly, we

deny Miller-El’s request for a COA on this issue.

“ B.

Miller-El’s second issue consists of two parts that revolve

around his claim that he was incompetent to stand trial. He first

claims that the state trial court erred in failing to provide him

with a sua sponte evidentiary hearing pursuant to Pate v. Robinson,

86 S. Ct. 836 (1966). Second, he challenges his conviction as

-infirm under Dusky v. United States, 80 S. Ct. 788 (1960), on the

basis that he was incompetent, in fact, at the time of his trial.

Before analyzing these claims, a brief review of some additional

facts is necessary.

Miller-El was tried some eight weeks following his arrest.

Incident to his arrest, Miller-El was wounded by a gunshot. During

the months following his arrest, Miller-El underwent surgical

treatment for his injuries, and he experienced complications such

as weight loss. mn three separate occasions during his trial,

Miller-El was evaluated by a doctor at the direction of the trial

court. First, during jury selection, he experienced chest pains,

chills, and a fever. He was diagnosed with pneumonia and was

treated and discharged the same day. Nine days later, still during

jury selection, Miller-El complained of delays in receiving

medication. The trial court ordered a second evaluation to

determine if Miller-El needed more medication. The doctor

determined that he did not. Two days before jury selection

concluded, Miller-El was taken to the hospital for treatment of a

chest abscess. During his trial, Miller-El complained of pain in

his ribs and asked to see a doctor. And finally, on the evening of

the day he was found guilty, the trial judge ordered a medical

evaluation to determine if Miller-El would be able to sit through

court after complaining of nausea and colostomy bag complications.

He was kept overnight in the hospital and was released the next day

—*

when the punishment phase of his trial began.

Miller-El complains that he was denied a competency hearing at

trial and that his due process rights were denied because whenever

evidence raises a sufficient doubt about the mental capacity of the

accused to stand trial, a hearing is required. See Drope v.

Missouri, 95 S. Ct. 896, 908 (1975); Pate, 86 S. Ct. 836. Miller-

El contends that the evidence raised a sufficient doubt as to his

competency.

In Carter v. Johnson, 110 F.3d 1098 (Sth Cir. 1997), we

explained the procedural inquiries and burdens required for the two

competency claims Miller-El asserts. Specifically, we summarized

as follows:

The issue of competency may arise in two distinct

contexts. See United States v. Williams, 819 F.2d

605, 607-09 (Sth Cir. 1987); Lokos v. Capps, 625

F.2d 1258, 1261-62 (Sth Cir. 1980). We must

distinguish between them for purposes of the

present case.

First, a habeas petitioner may allege that state

procedures were inadequate to ensure that he was

competent to stand trial. A trial court must

conduct an inquiry into the defendant's mental

capacity sua sponte if the evidence raises a bona

fide doubt as to competency. Pate v. Robinson, 383

U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815 (1966). If

the trial court receives evidence, viewed

objectively, that should raise a reasonable doubt

as to competency, yet fails to make further

inquiry, this constitutes a denial of a fair trial.

Seldes, 65 Faia 61. If a Bete vidlaticn is etablicte, the fetal betes court met

consider whether a meaningful hearing can be held nunc pro tunc to

determine retrospectively the petitioner's competency as of the

time of trial. Id. at 1262. If so, the petitioner bears the

burden of proving his incompetence by a preponderance of the

_evidence; if not, the habeas writ must issue, subject to retrial

at the state's discretion. Id. This Pate procedural guarantee is

not before us, having been expressly abandoned by Carter on appeal.

Second, a habeas petitioner may collaterally attack

his state conviction by directly alleging

incompetence at the time of trial, thereby claiming

a violation of the substantive right not to be

tried and convicted while incompetent, rather than

of the procedural guarantee of a competency hearing

in the event that a bona fide doubt arises at trial

as to competency:

It is always open for the defendant to later assert

his actual incompetence at trial in a subsequent

collateral proceeding, but the substantive claim

should not be confused with a defendant's

procedural rights under Pate to a hearing whenever

a bona fide doubt as to competence surfaces at

trial.

Carter v. Johnson, 131 F.3d 452, 458 n.10 (Sth Cir. 1997).

First, with respect to whether Miller-El was entitled to a

hearing, the relevant inquiry is whether the district court

received information “which, if objectively considered, should

reasonably have raised a doubt about the defendant’s competency and

alerted [it] to the possibility that the defendant could neither

understand the proceedings or appreciate their significance, nor

rationally aid his attorney in his defense.” Lokos, 625 F.2d at

1261. In this case, the trial court specifically found that

Miller-El was competent to stand trial, both at the trial and again

on state habeas review. Specifically the court found:

(1) petitioner was legally competent both on and

off his pain medication; (2) he had the capacity to

understand the nature and object of the

proceedings against him, consult with his

attorneys, and assist in the preparation of his

a“7-

defense; and (3) a competency hearing was not

required because “there was no ‘bona fide doubt’ as

to [petitioner’s) competence to stand trial.

Our independent review of the record evidence convinces us

that the district court’s finding that Miller-El was not entitled

to a hearing is not unreasonable, and Miller-El has failed to

present clear and convincing evidence to the contrary.

With respect to whether Miller-El was, in fact, incompetent,

we find that the district court’s conclusion that he was not, is

reasonable, and likewise, we find that the state court’s decision

does not represent an umreasonable application of federal law.

Thus, we conclude that Miller-El has failed to make a substantial

showing of the denial of a constitutional right, and we deny

Miller-El’s request for a COA on this issue.

In his third issue, Miller-El claims that he is entitled to a

COA because the federal district court erred in refusing to conduct

an evidentiary hearing numc pro tunc to determine whether he was

competent to stand trial in 1986. Having concluded above that

Miller-El has failed to establish a bona fide doubt as tc his

competency at trial under Pate and that the state court’s

determination of competence was reasonable, we need not readdress

this issue.

A state court’s competency determination is a finding of fact

entitled to a presumption of correctness under § 2254(d)(2). And

we have stated that “(b]efore the federal district court has a duty

to investigate a habeas petitioner’s claim of incompetency, the

petitioner must show that there are sufficient facts to

‘positively, unequivocally and clearly generate a real, substantial

and legitimate doubt as to the mental capacity of the petitioner to

meaningfully participate and cooperate with counsel during trial.’”

Moody v. Johnson, 139 F.3d 477, 481 (Sth Cir. 1998) (quoting

Washington v. Johnson, 90 F.3d 945, 950 (Sth Cir. 1996)). Under

Section 2254(e) (1), a habeas petitioner is entitled to a nunc pro

tunc evidentiary hearing for the purpose of proving that he was

incompetent at the time he stood trial only when he “makes a

showing by clear and convincing evidence to raise a threshold doubt

about his competency.” lLokos, 625 F.2d at 1261. This threshold

burden is “extremely heavy,” Johnson v. Estelle, 704 F.2d 232, 238

(Sth Cir. 1983), amd requires that a petitioner present facts

sufficient to “positively, umequivocally, and clearly generate a

real, substantial and legitimate doubt” concerning his mental

competence, id. at 238. See also Jackson v. Anderson, 112 F.3d 823

(Sth Cir. 1997) (noting that § 2254(e)(1) places a heavier burden

on petitioners seeking to rebut state court fact findings).

Miller-El suggests that he was entitled to an evidentiary

hearing in the federal district court because he was not given a

live hearing in the state court. The state habeas court instead

based its decisions upon the parties’ supplemental briefing and

expert affidavits, i.e, Miller-El received only a paper hearing.

We find Miller-El’s suggestion untenable, especially where, as

here, the trial judge and the state habeas judge were the same.

See Clark v. Johnson, 202 F.3d at 766 (“we have repeatedly found

that a paper hearing is sufficient to afford a petitioner a full

and fair hearing on the factual issues underlying the petitioner’s

claims, especially where . . the trial court and the state habeas

court were one in the same.”).

We conclude that Miller-El has failed to make a substantial

showing of the denial of a constitutional right on this issue in

that he has failed to rebut the presumptive correctness of the

state habeas and district court findings that he was competent to

stand trial in 1986 and that he was not entitled to a nunc pro tunc

hearing to determine competency. Accordingly, we deny Miller-El’s

request for a COA on this issue.

In his fourth and final issue, Miller-El argues that he is

entitled to a COA on his claim that his First and Fourteenth

Amendment rights were violated by the admission of evidence, during

the punishment phase of his trial, relating to his affiliation with

the Moorish Science Temple faith in violation of Dawson v.

Delaware, 112 S. Ct. 1093 (1992). In Dawson, while the Supreme

Court held that where religious affiliation unrelated to any issue

in the case may be impermissible, there is no “per se” barrier to

‘

’

—

the admission of evidence which concerns a defendant’s beliefs and

associations at sentencing. Dawson, 112 S. Ct. at 1097. The Court

noted that “[iJn many cases associational evidence might

serve a legitimate purpose in showing that a defendant represents

a future danger to society.” Id. at 166. We have, likewise, held

that if the evidence regarding a defendant’s affiliations or

personal beliefs is sufficiently related to the issues involved,

there is no constitutional violation. See Boyle v. Johnson, 93

F.3d 180, 183-84 (Sth Cir. 1996).

Here the state habeas court concluded that Miller-El’s

association with the Moorish Science Temple was inextricably

intertwined with his conviction and sentence. Evidence was entered

in the guilt phase regarding his membership as part of testimony

regarding witnesses’ ability to identify him through his

participation in the Moorish Temple Feast at the murder scene the

week before the robbery-murder. Thus, introduction of this

evidence during the guilt phase was relevant to other matters.

The additional references to his membership during the

punishment phase of his trial, as the state court found, were

appropriate as they related to his involvement with other group

members who were heavily armed and who assisted in the commission

of Miller-El’s offense of conviction. The government’s

characterization of Miller-El as belonging to a heavily armed

paramilitary group was supported by the evidence and was probative

as an indicator of future dangerousness.

Having conducted an independent review, we conclude simply

that the state court’s determination that Miller-El’s due process

rights were not violated by the prosecution’s reference to his

membership in the Moorish Science Temple faith were consistent with

and were not contrary to the Supreme Court’s applicable holding in

Dawson. Furthermore, we conclude that the state court’s

adjudication of this claim was reasonable, and therefore, we deny

Miller-El’s request for a COA on this issue.

Iv. CONCLUSION

Having carefully reviewed the record, we conclude that Miller-

El has failed to make a substantial showing of the denial of a

constitutional right with respect to any of the issues raised in

his request for COA, and accordingly, we DENY his request for COA

on all issues raised therein.

THOMAS JOE MILLER-EL, Appellant

Appeal from the Criminal

NO. 69,677 Vv. -“-“-2- District Court No. 5

[DALLAS County)

THE STATE OF TEXAS, Appellee

OPINION

Appellant was convicted of Capital Murder for shooting to

death an Irving motel clerk @uring the course of committing

Robbery. See V.T.C.A., Penal Code, Section 19.03 (a)(2). The

historical facts of this case are reported at Miller-El _v. State,

782 S.W.24 892, 893-894 (Tex.Cr.App. 1990). Punishment was

assessed at death. See Art. 37.071 (b), V.A.C.c.P. Appeal to

this Court is automatic. See Art. 37.071 (h), V.A.C.C.P.;

Tex.R.App.Proc. 40 (Bb) (1).

In his first seven points of error appellant makes various

complaints related to the allegedly intentional exclusion of black

veniremembers from jury service by the prosecuting attorneys in

this cuse. See Swain v. Alabema, 380 u.s. 202 (1965); Streuder v.

West Virginia, 100 U.S. 303 (1880). To the extent that these

points implicate a cleined Sixth Amendment right to a petit jury

reflecting a fair cross-section of @ppellant's community, we note

only that such right has not been recognized by the Supreme Court,

nor is its recognition by that Court anticipated by this one.

Holland v. Zilinois, 493 U.s. 474 (1990); Seubert vy. State, 787

S.W.24 68 (Tex.Cr.App. 1990).

Nevertheless, the original appellate record in this cause does

disclose that appellant is himself an African-American and that a

sufficiently disproportionate number of black veniremembers were

Fenoved by peremptory challenge of the State as to make « prima

facie case of racial discrimination in the jury selection process,

contrary to the Fourteenth Amendment. Because Batson vy. Kentucky,

476 U.S. 79 (1986), was not decided until after trial of this

cause, we abated the appeal and remanded for an evidentiary hearing

in the trial court on the ultimate question of intentional

discriminetion. Miller-E]l_yv. State, 248 &.W.24 459 (Tex .Cr.App.

MILLER-EL ~ 2

1988). See Griffith v. Kentucky, 479 U.S. 314 (1987). We have

received the supplemental transcript and statement of facts from

this hearing, including the trial judge's findings of fact and

conclusions of law. Based upon our independent evaluation of the

supplemented record, we are of the opinion that no error is shown.

With respect to each black veniremember against whom the State

exercised a peremptory challenge, a racially neutral explanation,

reasonably related to the trial of this case, was offered by

Prosecution witnesses. See Appendix aA. Thus, it became

appellant's burden to prove by ® preponderance of the evidence that

such explanations were untrue in fact and that one or more African-

American veniremembers were indeed struck by the State on account

of their race. Tompkins vy. State, 774 S.W.24 195, 201-202

(Tex.Cr.App. 1987).

We have carefully reviewed the voir dire examination of these

prospective jurors and find ample support there for the

prosecutor's racially neutral explanations. {f¢e¢ Young y. State,

826 S.W.2d 141 (Tex.Cr.App. 1992). Accordingly, we do not believe

that such explanations ere patently implausible or so contrary to

the evidence as to be unworthy of belief as a matter of law. cr.

Whitsey v. State, 796 S.W.24 707, 720 (Tex.Cr.App. 1989) (opinion on

rehearing) . Accordingly, we do not find the trial judge's

conclusion that no black veniremembers were intentionally excluded

on account of their race to be clearly erroneous.

Appellant's first seven points of error are overruled.

Il.

Appellant next complains that ten prospective jurors should

have been excluded for cause on his motion, mainly because their

ettitudes about punishment were so harsh that they could not

realistically consider the mininun penalty for murder or give fair

effect to the presumption of innocence. See. a.9.. Faulder y,

State, 745 S.W.24 327, 339 (Tex.Cr.App. 1987), and Homan vy. rtate,

662 S.W.24 372 (Tex.Cr.App. 1984), respectively.

The fact that « veniremember holds strictly retributive values

——_— om eee feel

MILLER-EL = 2

Or advocates severe punishment for Criminal offenders does not

Gisqualify him fros Jury service in this state. Just as those

opposed to capital punishment or inclined to leniency in general

are legally qualified jurors, so also are those holding an opposite

System of values. Neither kind of person is challengeable for

cause unless he harbors a bias or prejudice against the law which

is likely to prevent or Substantially impair performance of his

Guties as a juror.

One who regards with disfavor the minimum penalty for a

Criminal offense is not necessarily suffering an objectionable

impairment. See Williams v. State, 773 $.W.24 525, 535-537

(Tex.Cr.App. 1988). So long as he is able to give the entire legal

range of punishment due considerstion, he is a fully capable juror

under the laws of Texas. Coxrgova v. State, 733 S.W.24 175, 164-.85

(Tex.Cr.App. 1987). Likewise, those who express the accurate

belief that indictees are officially suspected of wrongdoing do not

thereby possess a fatal bias against the presumption of innocence

uniess they are also unwilling to base their conclusions about

culpability entirely upon the evidence actually adduced in their

presence at trial. See Mays v. State, 726 S.W.24 937, 951

(Tex.Cr.App. 1986); Bell v. State, 724 S.W.2d 780, 797 (Tex.Cr.App.

1986).

We have carefully examined the complete voir dire examination

of each veniremember whon appellant claims was challengeable for

cause, whether for prejudice against the full range of punishment

Or bias against the presumption of innocence. As to each

respective claim, we find credible assertions of willingness to

obey instructions of the court with respect to all matters of law

affecting jury deliberations and to consider the full range of

punishment applicable to every potential offense in the case. See

Appendix B. Consequently, appellant has not persuaded us that the

trial judge erred by rejecting his challenge to any specified

verniremember.

Points of error eight through sixteen, inclusive, are

overruled.

‘

—

— = oe ee Oe ee &e

eae

L-.d Newall

MILLER-EL - 4

Iii.

In his seventeenth point of error appellant claims that the

trial judge erred in refusing to allow him additional peremptory

challenges during the jury selection process.

By law, each side in a capital murder prosecution wherein the

Geath penalty is a possible punishment is allowed to decline,

without specific legal cause, the service of fifteen prospective

jurors. Art. 35.15 (a), V.A.C.C.P. The law does not authorize

more peremptory challenges than this except for the selection of

alternate jurors. Art. 35.15 (4d), V.A.C.c.P. The only other

instance in which an additional challenge should be dispensed by

the trial judge is where he has erroneously denied an earlier

challenge for cause and the aggrieved party was thereby forced to

use a peremptory strike against an objectionable juror.

Remouchette v. State, 731 S.W.24 75, 83 (Tex.Cr.App. 1986); Thomas

Vv. State, 701 $.W.24 653, 658 (Tex.Cr.App. 1985). In such case,

however, the additional challenge merely restores a ful) complement

of strikes to the offended party.

Because appellant did not Gemonstrate in Part II, ante, that

he was forced to expend peremptory challenges against veniremembers

who should have been removed for cause st his request, failure to

allow him more peremptory challenges was not improper. Barney v.

State, 698 S.W.24 114, 124 (Tex.Cr.App. 1985); Von Byrd v. State,

569 S.W.2d 883, 892-893 (Tex.Cr.App. 1978).

Appellant's seventeenth point of error is overruled.

Iv.

Points of error eighteen and nineteen pertain to two witnesses

called by the defense who refused to testify at trial upon the

ground that their testimony might incriminate then. Appellant

sought “transactional immunity" for both, and here complains that

the trial judge erroneously denied it. Arguing that the State is

generally entitled to such impunity for prosecution witnesses under

V.T.C.A., Penal Code, Section 71.04, appellant insists that

ordinary principles of fairness secure him a like consideration.

Nett

_—_

=—

—- ——

MILLER-EL - 5

But the statute to which he refers applies by its terms only

to "an offense under this chapter[,)" meaning an offense under

Chapter 71 of the Penal Code. Since appellant was not charged with

such on offense in the instant prosecution, it does not appear that

Section 71.04 is in control of his demand for witness impunity.

In any case, neither the statute, the constitutional right of

compulsory process, nor the vital decisional law of this State

assures an accused equal license to compel a grant of immunity for

purposes of obtaining testimony otherwise subject to the privilege

against self-incrimination. éutry v. Estelle, 706 F.24 1394, 1400-

1403 (Sth Cir. 1983); United States v. Chagra, 669 F.24 241, 258-

261 (Sth Cir. 1982); Moorhouse v. State, 614 S.W.2d 450, 453 n. 3

(Tex.Cr.App. 1981) (Clinton, J., concurring); Ross v. State, 486

S.W.2d 327, 328-329 (Tex.Cr.App. 1972). But see Norman v. State,

588 S.W.2d 340, 343-345 (Tex.Cr.App. 1979). Witnesses who possess

the privilege are themselves only entitled to testimonial or use

immunity under such circumstances. Kastigar v. United states, 406

U.S. 441 (1972); Ex parte Wilkinson, 641 S.W.2d 927, 929-930

(Tex.Cr.App. 1982); Ex parte _Shorthouse, 640 S.W.2d 924

(Tex.Cr.App. 1982). Accordingly, appellant's demand of

transactional immunity for his witnesses need not have been granted

by the trial judge.

Points of error eighteen and nineteen are overruled.

Vv.

Appellant's wife, a coindictee, also invoked her privilege not

to testify at trial. However, appellant claims that she waived the

privilege by testifying outside the jury's presence as to her nane,

age, marital status, and whereabouts on a date pertinent to the

instant prosecution. The trial judge agreed and held her in

contempt for refusing to testify before the jury, but denied

appellant's request to read a transcription of her earlier

testimony to the jury instead. Because this transcription would

have included statements made to the trial judge tending to create

an alibi for appellant, he maintains it was error to exclude the

MILLER-EL = 6

evidence.

We need not decide whether appellant's wife inceed waived her

privilege not to testify, as the transcription of her earlier

statements was never actually offered in evidence by appellant.

But see Grayson v. State, 684 S.W.2d 691 (Tex.Cr.App. 1984).

Although the State shared appellant's view at trial that her

privilege had been waived, it evidently did not agree that her

remarks to the trial judge should be read to the jury, since no

objection was interposed by the prosecutor when the judge denied

appellant's motion to do so. It thus seems that the trial judge

anticipated an objection from the State and prospectively sustained

it.

Ordinarily, we would be disinclined to condone such behavior.

Parties are bound to make their own objections, and trial judges

are usually expected to receive evidence against which no objection

has been interposed. In this instance, however, appellant didn't

attempt to offer his evidence in the usual way, as by calling a

witness to his wife's Geclarations. As a consequence, counsel for

the State wasn't afforded a fair opportunity to register his own

objections, if any. Instead, appellant solicited prospective

permission of the trial judge to have his wife's Statements read to

the jury by the court reporter. But because this testimony was not

elicited in the jury's presence to begin with, reading it back

before receiving it into evidence would have been improper. In

short, appellant was obliged first to offer the evidence before

complaining of its exclusion. Likewise, the State was not obliged

to interpose an objection to evidence not actually tendered before

the trier of fact. Under the present circumstances, therefore, we

think it inappropriate to find error in the court's ruling.

Appellant's twentieth point of error is overruled.

vI.

In four points of error, appellant complains of the receipt

into evidence of twenty-three color photographs depicting from

various angles and at various distances the murder scene and body

MILLER-EL - 7

of the deceased. He Claims that these photographs were offered

“solely to inflame the minds of the jury." Martin v. State, 475

S.W.2d 265, 267 (Tex.Cr.App. 1972). We have since recognized,

however, that the admissibility of photographs with inflammatory

potential is controlled by Texas Rule of Criminal Evidence 403, and

have declared Martin defunct to the extent of any conflict. Leng

¥. State, 823 S.wW.24 259, 271-272 (Tex.Cr.App. 1991). Still, the

result in this case would be the same under either formulation.

We have examined the exhibits in question, and they do not

impress us as unusually shocking or gruesome. Because appellant

doesn't Gispute their relevancy, we are unconvinced that the

Prejudice inherent in a visual representation of this dreadful

crime necessarily outweighs as a matter of law its acknowledged

probative value. Tex.R.Crim.Ev. 403; Rogers v. State, 774 S.W.2da

247, 258 (Tex.Cr.app. 1989); Williams v. state, 773 s.w.24 525, 539

(Tex. °r.App. 1988). Accordingly, the trial judge was within the

ambit of his discretion to admit the photographs.

Appellant's points of error twenty-one through twenty-four,

inclusive, are overruled.

VII.

Points twenty-five through thirty-four declare that

appellant's arrest and the subsequent search of his automobile were

unlawful, that the ordnance Seized as a result should have been

Suppressed, and that color Photographs of the car, the weapons, and

the scene were likewise inadmissible.

Tex.Const. Art. 1, Sec. 9.

See .S. Const., Amend. 4;

When investigation of the murder in this case cast suspicion

on appellant, a warrant was issued for his arrest and for a search

of his Irving residence. It was then discovered that he had gone

to Houston and was residing with an acquaintance there.

Accordingly, Dallas authorities advised Harris County by teletype

that appellant was wanted on a murder warrant in Irving.

Based on this information, agents of the Houston Police

Department (HPD) and of the United States Bureau ef Alcohol,

MILLER-EL - 8

Tobacco, and Firearms Sought a search warrant for the residence of

appellant's Houston acquaintance, including another warrant for

appellant's arrest. While the site was Surrounded, appellant and

his friend arrived in a white Cadillac Seville. After depositing

his companion and the latter's young children at the house,

appellant noticed approaching law enforcement officers. Evidently

in an attempt to escape, he backed from the driveway and spun the

car quickly around, but his egress was blocked by a police vehicle.

Brandishing a pistol, he Sprang from the car, was shot by an HPD

marksman and then arrested. ’

Appellant insists that his arrest was in fact made under

authority of the Harris County warrant, which was invalid because

issued only after he was actually taken into custody. But we need

not pass upon validity of the Harris County warrant as Houston

Police officers were authorized to arrest appellant pursuant to the

Dallas warrant of which they had been informed. The legality of

their conduct in reliance on this Warrant did not depend,

appellant mistakenly contends, upon their actual possession of the

document. Art. 15.26, V.A.C.C.P.; Bradley v. State, 478 S.W.2d

527, 530 (Tex.Cr.App. 1972); Cook v. State, 470 S.W.24 898, 899

(Tex.Cr.App. 1971). Rather, they were fully empowered to arrest

him on notice of the outstanding warrant received electronically

from Dallas law enforcement authorities. Cf. Art. 15.08,

V.A.C.C.P. Any weapons and ammunition taken at that time from his

person or from places in the immediate vicinity were, of course,

seized pursuant to a lawful arrest and not subject to suppression

on the grounds he now urges. New York v. Belton, 453 U.S. 454

(1981).

As for items obtained from within the Cadillac, especially

weapons found in the trunk, the record reflects that the car was

owned by appellant's companion, who voluntarily consented to its

Search by law enforcement officers. See United States v. Matlock,

415 U.S. 164 (1974); Sharp_v, State, 707 S.wW.24d 611, 617

(Tex.Cr.App. 1986); Williams v. State, 621 s.w.24 609, 613

(Tex.Cr.App. 1981) (panel Opinion). cr, Bumper vy, North Carolina,

a -

L.-1d Crean PRED we a eed

— ey

MILLER-EL - 9

391 U.S. 543 (1968).

Points of error twenty-five through thirty-four, inclusive,

are overruled.

VIII.

Next, appellant maintains that the court's charge to the jury

erroneously failed to restrict consideration of extraneous offenses

to the limited purpose for which they were proven.

When evidence is received for a limited purpose the jury

should, of course, be instructed as to the limitation, at least

upon timely request of an affected party. Tex.R.Crim.Ev. 105 (a).

Most often such limitation is Sought because the evidence is

relevant, not only to the issue for which it was received, but also

to some other issue upon which it was not admissible and concerning

which it might therefore be unfair.y prejudicial. See

Tex.R.Crim.Ev. 403. Proof of an extraneous offense is almost

invariably admissible at the guilt/innocence phase of trial only

insofar as it illuminates a material issue in the case. E.g.,

Crank v. State, 761 S.W.2a 328, 340-345 (Tex.Cr.App. 1988). It is

never admissible merely to encourage the inference that an accused

is likely to be guilty solely because he committed other crimes in

the past. Tex.R.Crim.Ev. 404 (>). E.gs, Williams v. State, 662

S.W.2d 344 (Tex.Cr.App. 1983).

In the instant cause the trial judge overruled appellant's

objection to the admission of extraneous offenses without requiring

the State to indicate the purpose for which it offered the

evidence. Whether the judge erred in this respect, either by

overruling appellant's objection or by failing to specify the

limited purpose for which the evidence was received, is not a

question upon which appellant has sought review in this Court.

Rather, he complains only that the court's charge on extraneous

offenses failed to limit the jury's consideration of such evidence

to the purpose for which it was received.

Since it appears from the record that such evidence was in

fact received, whether rightly or wrongly, for general purposes,

‘

i a

MILLER-EL - 10

the jury was thus entitled to consider it upon any issue to which

it was relevant, without limitation. Tex.R.Crig.Ev. 105 (a);

Richardson v. State, 786 3.W.2d 335, 337-338 (Tex.Cr.App. 1990);

Cantrel) vy. State, 731 S.W.2d 64, 94-95 (Tex.Cr.App. 1987).

Accordingly, the trial judge did not err in overruling appellant's

objection.

Point of error thirty-five is overruled.

Ix.

Finally, appellant asserts that four prospective jurors were

excluded for cause on motion of the State because of their

opposition to capital punishment, in violation of the United States

Constitution. Wainwright v. Witt, 469 U.S. 412 (1985); Adams vy.

Texas, 448 U.S. 38 (1980); Witherspoon v. Illinois, 391 U.s. S10

(1968). An examination of the record discloses that, while not all

of these veniremembers were opposed to the death penalty in

Principle, all were opposed for reasons of conscience or religion

to serving as jurors in a case where the death penalty sight be

assessed.

We have held that capital veniremembers, even if Willing and

able honestly to answer the special punishment issues, may be

challenged for cause if they would opt to refuse the oath of a

juror and thereby disqualify themselves fron jury service on

account of personal aversion to assessing the death penalty.

Goodwin v. State, 799 S.W.24 719, 733-734 (Tex.Cr.App. 1990); Ellis

Vv. State, 726 S.W.2d 39, 41-44 (Tex.Cr.App. 1986). cL. Felder v.

State, 758 S.W.2d 760, 765-766 (Tex.Cr.App. 1988). Contra

Hernandez, 757 S.W.2d at 753. The record in this cause rather

Clearly reflects that each of the prospective jurors whose

exclusion is at issue here chose to exercise that option.

Appellant's thirty-sixth point of error is, therefore,

overruled.

on Od

i i

MILLER-EL - 11

Finding no reversible error in the complaints assigned for

review, we affirm appellant's conviction and sentence of death.

PER CURIAM

EN BANC

DELIVERED: September 16, 1992

DO NOT PUBLISH

Overstreet, J., concurs in the result

Clinton, J., dissents

Baird and Maloney, JJ, not participating

APPENDIX A

POINTS OF ERROR ONE THROUGH SEVEN:

Boseman: Venireman #7

State's justification for peremptory strike included the

venireman's testimony regarding the death penalty and his possible

hesitation in giving such a sentence. Support is found in the

record where Boseman testified he agreed with the death penalty but

could not serve on a capital murder jury (Voir Dire Yol. I-282).

Also, he testified that if he felt that the Gefendant should not be

executed, he could not answer the three punishment issues yes even

though the evidence supported affirmative answers (Voir Dire Vol.

I-300 through 301).

Eields: Venireman #9

State's justification for peremptory strike included the

venireman's testimony regarding rehabilitation, religious beliefs,

and the fact his brother had been convicted of a felony. Support

is found in the record where Fields testified that the death

penalty was only appropriate when «@ person could not be

rehabilitated and it was his belief that anyone could be

rehabilitated who found God (Voir Dire Vol. I-423). Also, Fields

testified his religion's doctrinal views opposed the death penalty

though this was not his personal opinion (Voir Dire Vol. 1-404

through 405).

Warren: Venireman £28

Justification for the peremptory strike included Warren's

misgivings about the death penalty (Supp. Hearing Vol. I-29 through

31). The record indicates that Warren had mixed feelings about the

Geath penalty serving a purpose (Voir Dire Vol. III-1532). In

addition, he did not egree with the death penalty in all cases

(Voir Dire Vol. III-1526). The state also noted that the strike of

Mr. Warren came at a time when they had numerous peremptory strikes

remaining and could utilize them with less caution.

Rang: Venireman #37

State's justification for peremptory strike included Rand's

—

MILLER-EL - 12

"today I say I can, but tomorrow I Bight not" (Voir Dire Vol. rIv-

2008).

Besgess: Venireman #40

State's justification for peremptory strike includes Boggess’

reluctance to sit on a capital murder jury (reflected in record at

Voir Dire Vol. IV-2008) as well as the fact she had been a defense

witness for her nephew at one tine.

Kennedy: Venireman 4}

State's justification for peremptory strike included Kennedy's

belief that in a capital murder case involving a normal robbery,

the death penalty was inappropriate and that it is only appropriate

in mass murder situations (Voir Dire Vol. 2176 through 2178).

Baker: Venireman 7)

State's justification for peremptory strike involved Baker's

Gislike for the death penalty and her inability to sentence another

human to death (Voir Dire Vol. VIII-2990 through 2991). The State

also noted that her antagonistic attitude towards the prosecuting

attorney was a factor.

APPENDIX B

POINTS OF ERROR EIGHT THROUGH SIXTEEN:

Weigant: Venireman #6

Defense objected to Weigant's views regarding the death

penalty. Weigant testified that his personal view was the death

penalty should be used for any intentional murder. However, he

Specifically stated he would follow the law and would not impose

his personal view upon the defendant (Voir Dire Vol. I-204 through

205). - Defense also questioned whether he was capable of assessing

the minimum punishment for murder. In this regard, he specifically

Stated he would vote for the five year minimum if the facts of the

case warranted it (Voir Dire Vol. I-247 through 249).

Jenkins: Venireman #2)

Defense objected to Jenkins’ inability to assess the sinizus

Pz, in a murder case. However, Jenkins specifically stated

that if

Smale: Venireman #24

Defense objected due to Smale's inability to give the sininus

sentence for murder as well as her view that she would be unable to

answer of the three punishment related questions in the

negative if the defendant were found guilty of capital surder.

However, during questioning by the court, she specifically stated

that she would assess the sininus penalty for surder if the

evidence showed that it was appropriate (Voir Dire Vol. III-1324

through 2326). She also specifically stated that she could answer

one OF more of the punishment questions in the negative based

the evidence and they were not automatic “yes” votes (Voir Dire

Vol. III-1336 through 1337).

Nix: Venireman #48

Defense objected due to Nix's inability to consider the

minimum punishment for murder. However, she specifically stated

4 Gad Wes bos ES Le a)

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fiw =f “@

MILLER-EL - 13

that she would assess punishment at five years if she thought that

it WaS appropriate based upon the evidence presented (Voir Dire

Vol. V=-2396).

nae ee

MILLER-EL - 14

Halters: Yenireman #79

Defense objected due to Walters’ belief that she would

automatically answer yes to all three punishment questions if the

Gefendant was found guilty of capital surder. However, under

questioning from the court, Walters testified that the state would

have to prove that the answers to the questions were yes; if they

were not proven, then she would answer in the negative (Voir Dire

Vol. VIII-3393 through 3394).

Davis: Venireman #82

Defense objected to Davis’ inability to assess the nininuz

punishment for murder. However, Davis did specifically say she

could vote for the minimum penalty of five years if the evidence

warranted such a sentence though she had trouble imagining such a

situation (Voir Dire Vol. Ix-3496 through 3497).

Spence: VYenireman #85

Defense objected to Spence because he presumed the defendant

had done something wrong by virtue of his being tried for capital

murder. In this regard, Spence testified that an indictment did

not satisfy him beyond a reasonable doubt and that he would not

consider the indictment as evidence against the defendant (Voir

Dire Vol. IX-3567 through 3570). Defense also questioned Spence's

ability to assess the minimum penalty for murder. Spence, however,

specifically stated he would keep an open mind about punishment and

would assess the minimum punishment if warranted (Voir Dire Vol.

IX-3534 through 3535).

Jones: Venireman #103

Defense objected to Jones’ or gee | to consider the sinizun

punishment for murder. Jones did testify that he believed the

punishment for any murder should be mandatory death and that this

would make it easier for him to assess the maximum rather than the

minimum penalty. However, he specifically stated he would put

these personal views behind him and would consider the sinizus

penalty if the evidence supported it. (Voir Dire Vol. XI-4217

through 4220).

O'Dell: Venireman #107

Defense objected to O'Dell due to his inability to consider

the minimum penalty for murder. However, he specifically stated he

could consider a punishment of five years for murder in the proper

case and proper circumstances (Voir Dire Vol. XI-4511 throguh

4512).

Hearne: Venireman £108

Defense objected to Hearne's bias towards police officers, her

bias against psychiatrists, and her testimony that she would change

her opinion of guilt or innocence if she were the only dissenting

vote on the jury. However, she testified she would not give more

credibility to a police officer than any other witness (Voir Dire

Vol. XI-4622). She also testified her objection to psychiatrists

was only in her belief that there were certain things which could

not be proven. She specifically stated she would believe «a

psychiatrist was telling the truth to the best of his ability (Voir

Dire Vol. XI-4627 through 4628). Finally, when questioned by the

court, Hearne testified she would change her inion only if

convinced by the other jurors that her initial position was

incorrect (Voir Dire Vol. XI-4636).

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EX PARTE -0 APR | CRIMINAL DISTRICT COURT

NUMBER FIVE

MILLER-EL, THOMAS JOE, DALLAS COUNTY, TEXAS

Applicant --

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Having considered the applicant’s Application for Writ of Habeas Corpus,

Respondent's Original Answer, applicant’s Supplemental Application for Writ of Habeas Corpus,

Respondent’s Answer to applicant’s Supplemental Application, Petitioner’s Reply to

Respondent’s Answer to Supplemental Application, Motion to Strike Expert Witness Affidavit,

Supplemental Motion for Evidentiary Hearing and Motion for Modification of Execution Date

Pending Production of Trial Counsel’s Files, personal recollections, official court documents and

records, and exhibits tendered by counsel, the Court makes the following Findings of Fact and

Conclusions of Law:

l. Applicant is confined pursuant to the judgment and sentence of this Court in cause

no. F85-78668-L in which applicant was convicted by a jury of the offense of capital murder.

the jury affirmatively answered the special issues submitted, so as to support imposition of a

death sentence, and the court therefore assessed punishment at death, as required by law.

2. Counsel E. Bryce Cunningham and Royce West represented the applicant at trial

in cause no. F85-78668-L.

3. During .applicant’s trial, the undersigned, the Honorable Pat McDowell was the

presiding judge.

4. Counsel E. Bryce Cunningham and Royce West represented the applicant in his

motion for new trial.

5. Applicant’s motion for new trial was denied on June 18, 1986.

6. Counsel E. Bryce Cunningham represented the applicant on direct appeal.

7. The Court of Criminal Appeals, sitting en banc, affirmed the death sentence on

direct appeal in an unpublished opinion delivered September 16, 1992.

8. ' On May 16, 1995, applicant filed a application for writ of habeas corpus, cause

no. W85-78668-L, in this Court.

9. Applicant’s counsel on his application for writ of habeas corpus is Ruth Kollman.

10. Applicant has raised thirteen issues in this application for writ of habeas corpus:

a. whether putting applicant to trial while he was under medication and in a

debilitated physical condition due to his recuperation from a gunshot wound, major surgery,

pneumonia, and infections violated his due process nght to a fair trial guaranteed by the Fifth

and Fourteen Amendments of the United States Constitution;

b. whether putting applicant to tnal while he was under medication and in a

debilitated physical condition due to his recuperation from a gunshot wound, major surgery,

pneumonia, and infections violated his due course of law rights to a fair trial guaranteed by

article 1, § 13 and article 1, § 19 of the Texas Constitution; |

c. whether putting applicant to trial while he was under medication and in a

debilitated physical condition due to his recuperation from a gunshot wound, major surgery, and

pneumonia violated his due process right to a fair trial because he was effectively not present

during critical portions of his trial;

d. whether putting applicant to trial while he was under medication and in a

debilitated physical condition due to his recuperation from a gunshot wound, major surgery, and

pneumonia violated his due course of law right to a fair trial because he was effectively not

present during critical portions of his trial;

e. whether the trial court violated applicant's due process rights by failing to

conduct a hearing to determine the nature and extent of applicant’s physical condition and to

obtain expert testimony about his physical ability to withstand the rigors of trial and effectively

assist in his own defense;

f. whether the trial court violated applicant’s due course of law rights by failing

to conduct a hearing to determine the nature and extent of applicant's physical condition and to

obtain expert testimony about his physical ability to withstand the rigors of trial and effectively

assist in his own defense; -

g. whether the trial court violated applicant’s due process rights by failing to

conduct a hearing to determine the medical necessity for either the administration or the

withdrawal of applicant’s medication;

h. whether the trial court violated applicant’s due course of law rights by failing

to conduct a hearing to determine the medical necessity for either the administration or the

withdrawal of applicant’s medication;

i. whether the trial court violated applicant’s due process rights under the Fifth

‘and Fourteenth Amendments and his right to compulsory process under the Sixth Amendment

of the United States Constitution in preventing him from presenting his alibi defense by denying

his oral motion for continuance during the course of the trial;

j. whether the trial court violated applicant’s due course of law rights enter

article 1, §§ 13 and 19 and his right to compulsory process under article 1, § 10 of the Texas

Constitution in preventing him from presenting his alibi defense by denying his oral motion for

continuance during the course of the trial;

k. whether the State fundamentally violated applicant’s due process rights by

—vv and unnecessarily interjecting applicant's religious affiliation into the proceedings

so as to inflame and prejudice the jury against applicant on racial and religious grounds;

1. whether the State fundamentally violated applicant's due course of law rights

by impermissibly and unnecessarily interjecting applicant’s religious affiliation into the

proceedings so as to inflame and prejudice the jury against applicant on racial and religious

.grounds; and

m. whether applicant received ineffective assistance of both trial and appellate

counsel in violation of his rights under the Sixth Amendment of the United States Constitution.

11. On December 11, 1995, the State of Texas filed its Original Answer. -

12. This Court finds that December 11, 1995, Barbara Stacy, Custodian of Records

of the Dallas County Jail, notified Jennifer Balido, Assistant District Attorney for Dallas County,

that the jail records for applicant had been located. This Court finds that the delay in the

location of applicant’s jail records was due to a misfiling, and therefore was not an intentional

act by agents of the State to deny applicant access to these records.

13. On December 14, 1995, the Honorable Manny Alvarez, Presiding Judge of

Criminal District Court Number Five, Dallas County, Texas signed an “Order Modifying

Execution Date", finding that additional time was needed to review the medical records and file

any additional briefs. The Court ordered that applicant’s supplemental application concerning

the newly discovered medical records be filed no later than the 15th day of February, 1996. The

Court further ordered that the State would file its response, if any, no later than March 15,

1996. The Court further ordered that all supplemental filings concerning this matter from either

party be filed no later than 30th day of March, 1996.

14. On February 15, 1996, applicant filed his "Supplemental Petition and Supporting

Brief for Post-Conviction Writ of Habeas Corpus and Request for Evidentiary Hearing”.

15. On March 15, 1996, Respondent filed its "Answer to Applicant’s Supplemental

Application for Writ of Habeas Corpus”.

16. On March 29, 1996, applicant filed his "Petitioner’s Reply to Respondent’s

Answer to Supplemental Petition, Motion to Strike Expert Witness Affidavit, Supplemental

Motion for Evidentiary Hearing and Motion for Modification of Execution Date Pending

Production of Tr’ . Counsel’s Files”.

17. The Court finds that during all stages of his capital murder trial, applicant had the

capacity to understand the nature and object of the proceedings against him, he consulted with

counsel, and he assisted in preparing his defense. Drope v. Missouri, 420 U.S. 162, 172, 95

S.Ct. 896, 903, 43 L.Ed.2d 103, 113 (1975). This Court finds, based on the personal

recollection of the trial court, the exhibits submitted by applicant and respondent, and the

credible assertions in the affidavit of Steven Bowers, M.D., that the applicant has failed to prove

by a preponderance of the evidence that he did not have the capacity to understand the nature

and object of the proceedings egniast him, that he did not consult with his trial counsel, or that

he did not assist in preparing his defense.

;

18. This Court finds, based on the personal recollection of the trial court and review

of the trial record and the chronology prepared by respondent, that applicant had the present

ability at trial to consult with his lawyer with a reasonable degree of rational understanding and

that he had a rational as well as factual understanding of the proceedings against him. Dusky v.

Unites States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

19. This Court finds, based on the personal recollection of the trial court and review

of the trial record, the chronology prepared by respondent, and the credible assertions in Dr.

Stephen Bowers’ affidavit, that applicant was competent not only while he was on pain

medication, but also when he was not on pain medication.

20. This Court finds that the trial court did not deny applicant his due process rights

by ignoring evidence that indicated that applicant might not be competent. Cf, Lafferty v. Cook,

949 F.2d at 1550. This Court finds that, at the time of the trial, no evidence existed of

applicant’s alleged incompetency. This Court reaffirms its finding at the time of the trial that

applicant was competent and had actively assisted in his defense. (R.XVII:1198). This Court

further finds that applicant has presented this Court nothing to show that any evidence presently

exists of applicant’s alleged incompetency. This Court finds that the record supports the fact

that there was no "bona fide doubt” as to applicant’s competence to stand trial, and therefore the

trial court was not required to conduct a separate hearing sua sponte. Ex parte Danny Dean

335764 at 2, citing Drope v, Missouri, 420 U.S. 162, 173, 95 S.Ct. 896, 904, 43 L.Ed.2d 103

eee

}

~sd

—_

‘

’

(1975), Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 839, 842, 15 L.Ed.2d 815; Ex parte

Johnston, 587 S.W.2d 163, 165 (Tex. Crim. App. 1979).

21. This Court finds that trial counsel for applicant assured the trial court that their

client was indeed competent and aware of the facts and what was going on in the trial.

(R.XVII:1198). This Court additionally finds that nothing prohibited applicant from requesting

applying for a subpoena for the records of his trial counsel before the application requested on

March 29, 1996. This Court, therefore, overrules as untimely applicant's motion for

modification of the execution date to subpoena the files of his trial counsel.

22. This Court finds that applicant's motion for modification of the execution date to

subpoena the files of his trial counsel is made not in the interest of justice, but to delay this

Court’s action on his pending application for habeas corpus relief.

23. This Court concludes as a matter of law that since competency is a fact question,

the trial court’s competency determination is presumed to be correct since applicant has failed

to support his allegations of incompetence with instances in the record. Lafferty v. Cook, 949

F.2d at 1550.

24. This Court concludes as a matter of law that since the trial record, applicant's

medical records, and the court’s own personal recollections support that there was no bona fide

doubt as to applicant's competence to stand trial, the trial court was not required to conduct a

Crim. App. no. 71929, June 7, 1995) 1995 WL 335764 at 2, citing Drope v. Missouri, 420

U.S. 162, 173, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975), Pate v. Robinson, 383 U.S. 375,

385, 86 S.Ct. 839, 842, 15 L.Ed.2d 815; Ex parte Johnston, 587 S.W.2d 163, 165 (Tex. Crim.

App. 1979).

25. This Court finds that applicant cites no specific authority for his contention that

the “due course of law” provisions in art. 1, §§ 13 and 19 of the Texas Constitution should be

accorded a more generous interpretation of applicant's competence to stand trial under the facts

of this case than their federal counterparts. This Court notes that the Court of Criminal Appeals

has repeatedly said that to preserve an argument that the Texas Constitution sets a different or

higher standard than the United States Constitution, the proponent must present the state

constitutional point as a separate issue from the federal constitutional point and must argue the

state constitutional issue separately, presenting separate argument and authority. Since applicant

did not argue in the trial court or on appeal that TEX. CONST. art. 1, §§ 13 and 19 set a

higher/different standard than the federal constitution, U.S. CONST. amend. XIV, and since

applicant has not provided separate authority to show how or why the Texas constitutional

provisions are different from the federal constitution, this Court concludes as a matter of law

that only the federal constitutional point may be reviewed in this application. See Muniz v.

State, 851 S.W.2d 238,251-252 (Tex. Crim. App. 1993) ("We will not make appellant's state

constitutional claim for him"); Heitman v. State, 815 $.W.2d 681,690 n.23 (Tex. Crim. App.

1991); TEX. R. APP. P. 74. See also Morehead v. State, 807 S.W.2d 577,579 n. 1 (Tex.

Crim. App. 1991); Ex parte Keith v. State, 782 S.W.2d 861,863 n. 3 (Tex. Crim. App. 1989).

This Court concludes as a matter of law that applicant has therefore waived his Texas

Constitutional ground for relief.

26. This Court finds that applicant has failed to show how the facts of this case, state

precedent on this issue, and state policy considerations compel this court to even consider his

argument that the state constitution affords him greater protection regarding his competency to

27. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the structure

of the Texas Constitution compels this Court to independently interpret the Texas Constitution

and to find that, under the facts of this case, the Texas Constitution is broader in its protections

regarding applicant's competence to stand trial than its federal counterpart.

28. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the structural limitation of governmental power in art. 1, §§ 29 of the Texas

Constitution, however “unique”, compels this Court to independently interpret the document

to find, under the facts of this case, a broader protection of individual rights regarding

applicant’s competency to stand trial.

L-..

29. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the historical

context of the Texas Constitution compels this Court to independently interpret the Texas

Constitution and to find, under the facts of this case, broader protection regarding applicant's

competency to stand trial than its federal counterpart.

30. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the language

of art. 1, §§ 13 and 19 of the Texas Constitution compels this Court to independently interpret

the Texas Constitution and to find, under the facts of this case, broader protection regarding

applicant’s competency to stand trial than their federal counterparts.

31. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that art. 1, § 10 of

the Texas Constitution, when combined with art. 1, §§ 13 and 19, compels this court to

independently interpret the Texas Constitution and to find, under the facts of this case, that the

Texas Constitution provides, via applicant’s due course of law right to a fair trial, more

protection than the Fourteenth and Fifth Amendments regarding applicant’s competency to stand »

trial.

32. This Court finds that, assuming applicant has not waived his Texas Constitutional

ground for relief, and if applicant has proved that the Texas Constitution provides broader

~Q- —

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protections than its federal counterpart, applicant has failed to prove that the trial court violated

his due course of law rights under the Texas Constitution by putting him to trial without

conducting a hearing to determine the nature and extent of his physical condition and its alleged

affect on his ability to withstand the rigors of trial and effectively assist in his own defense. The

Court concludes as a matter of law that applicant is presumed competent to stand trial and shall

be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Tex. Code Crim. Proc. Ann, art. 46.02, § 1(b) (Vernon 1994). This Court concludes as a

matter of law that the standard to be applied here is that a person is incompetent to stand trial

if he does act have sufficient pocsent bility to conceals with his lawyer with o seasonable dagees

of rational understanding or a rational as well as factual understanding of the proceedings against

him. Tex. Code Crim, Proc, Ann. art. 46.02, § 1(a) (Vernon 1994).

33. Although if during the trial evidence of the defendant's incompetency is brought

to the attention of the court from any source, the court would have been required to conduct a

hearing to determine whether or not there is evidence to support a finding of incompetency to

stand trial, Tex. Code Crim, Proc, Ann, art. 46.02, § 2(b) (Vernon 1994), this Court finds that

applicant has failed to prove by a preponderance of the evidence that the trial court received

evidence from any source such that a "bona fide doubt” as to applicant’s competency was raised |

under Tex. Code Crim. Proc, Ann. art. 46.02, § 2(0) (Vernon 1994). This Court therefore

finds that applicant has failed to prove by a preponderance of the evidence that the trial court

erred in not conducting a hearing to determine the competency of applicant.

}

34. This Court finds that applicant has failed to prove by a preponderance of the

evidence that his physical condition denied him a fair trial under the United States Constitution

by rendering him not “effectively present" during critical portions of his trial. Applicant cites

two cases in support of his contention: Snyder v. Commonwealth of Massachusetts, 291 U.S.

97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) and Adanandus v, State, 866 S.W.2d 210 (Tex. Crim.

App. 1993). This Court concludes as a matter of law that both Snyder and Adanandus address

" issues surrounding the physical absence of an accused during critical portions of his trial, and

applicant has failed to show this Court how these cases address mental or physical incapacity as

a basis for a claim of not being effectively "present" during trial. Applicant fails to cite any

additional authority to support his contention that putting him to trial while he was under

medication and in a debilitated physical condition due to his recuperation from a gunshot wound

rendered him “not effectively present” during his trial.

35. This Court finds that even if applicant had cited applicable case law, applicant has

failed to prove by a preponderance of the evidence that his physical condition rendered him not

“effectively present” during his trial. This Court finds, based on personal recollections of the

trial court and review of the trial record, that applicant had an understanding of the trial process

and what was going on in the courtroom.

36. This Court finds that applicant cites no specific authority for his contention that

the “due course of law" provisions in art. 1, §§ 13 and 19 of the Texas Constitution should be

accorded a more generous interpretation of applicant's “effective presence” during his trial under

the facts of this case than their federal counterparts. This Court notes that the Court of Criminal

Appeals has repeatedly said that to preserve an argument that the Texas Constitution sets a

different or higher standard than the United States Constitution the proponent must present the

state constitutional point as a separate issue from the federal constitutional point and must argue

the state constitutional issue separately, presenting s*parate argument and authority. Since

applicant did not argue in the trial court or on appeal that TEX. CONST. art. 1, §§ 13 and 19

set a higher/different standard than the federal constitution, U.S. CONST. amend. XIV, and

since applicant has not provided separate authority to show how or why the Texas constitutional

provisions are different from the federal constitution, this Court concludes as a matter of law

that only the federal constitutional point may be reviewed in this application. See Muniz v.

State, 851 S.W.2d 238,251-252 (Tex. Crim. App. 1993) ("We will not make appellant's state

constitutional claim for him"); Heitman v. State, 815 S.W.2d 681,690 n.23 (Tex. Crim. App.

1991); TEX. R. APP. P. 74. See also Morehead v. State, 807 S.W.2d 577,579 n. 1 (Tex.

Crim. App. 1991); Ex parte Keith v. State, 782 S.W.2d 861,863 n. 3 (Tex. Crim. App. 1989).

This Court concludes as a matter of law that applicant has therefore waived his Texas

Constitutional ground for relief.

37. This Court finds that applicant has failed to show how the facts of this case, state

precedent on this issue, and state policy considerations compel this Court to even consider

_ his argument that the state constitution affords him greater protection than the federal

constitution regarding his “effective presence” during his trial. This Court concludes as a matter

of law that applicant's reliance on Ex parte Johnson, 587 S.W.2d 163, 166 (Tex. Crim. App.

1979) in support of his contenticn is misplaced.

38. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the structure

of the Texas Constitution compels this Court to independently interpret the Texas Constitution

and to find that, under the facts of this case, the Texas Constitution is broader in its protections

regarding applicant's “effective presence” during his trial than its federal counterpart. |

39. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the arestenel limitation of governmental power in art. 1, §§ 29 of the Texas

Constitution, however "unique", compels this Court to independently interpret the document

to find, under the facts of this case, a broader protection of individual rights regarding

applicant’s “effective presence” during his trial.

40. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the historical

context of the Texas Constitution compels this Court to independently interpret the Texas

Constitution and to find, under the facts of this case, that the Texas Constitution provides

broader protection than its federal counterpart regarding applicant's "effective presence” during

his trial.

41. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the language

of art. 1, §§ 13 and 19 of the Texas Constitution compels this Court to independently interpret

the Texas Constitution and find, under the facts of this case, that the Texas Constitution provides

broader protection than its federal counterparts regarding applicant's “effective presence” during

his trial.

42. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that art. 1, § 10 of

the Texas Constitution, when combined with art. 1, §§ 13 and 19, compels this Court to

independently interpret the Texas Constitution to find, under the facts of this case, that the Texas

Constitution provides, via applicant’s due course of law right to a fair trial, more protection than

the Fourteenth and Fifth Amendments regarding applicant’s "effective presence” during his trial.

43. In his fifth ground for relief, applicant contends that he was denied due process

of law in that the trial court did not conduct a hearing to determine the nature and extent of

‘applicant’s physical condition and to obtain expert testimony about applicant’s physical ability

to withstand the rigors of trial and to effectively assist in his own defense, but he relies upon

authority regarding the competency of the accused and the trial court’s duty to investigate that

competency. The Court therefore concludes as a matter of law that the ground is inadequately

briefed and will not consider it.

. »

—en

}

44. This Court finds that, if applicant had adequately briefed the issue regarding the

trial court’s failure to conduct a hearing to determine the nature and extent of applicant’s

physical condition and to obtain expert testimony about applicant’s physical ability to withstand

the rigors of trial and assist in his own defense, applicant has failed to prove by a preponderance

of the evidence that his physical condition warranted a hearing by the trial court.

45. This Court finds, based on the recollection of the trial court and supported by the

trial record, that whenever applicant communicated to the trial court, through his trial counsel,

that he was unable to physically continue, the trial court would stop the trial until applicant was

able to continue. (See, ¢.g., R.XVII:1294-1296 and 1434, where the trial court informs the jury

that the attorneys are prepared t- work into the late evening to finish their presentation of

evidence in the punishment phase of the trial, but the trial court recesses the jury early after

applicant’s trial counsel states, "Mr. Miller-E] has indicated---off the record.").

’ ,

46. In his sixth ground for relief, applicant cites authority that contends that he was

denied his due course of law rights under the Texas Constitution in that the trial court did not

conduct a hearing to determine the nature and extent of applicant’s physical condition and to

obtain expert testimony about applicant’s ability to withstand the rigors of trial and effectively

assist in his own defense, but he does not offer any additional argument or authority to support

his contention. This Court notes that the Court of Criminal Appeals has repeatedly said that to

preserve an argument that the Texas Constitution sets a different or higher standard than the

United States Constitution, the proponent must present the state constitutional point as a separate

~ °

——

: r

issue from the federal constitutional point and must argue the state constitutional issue

separately, presenting separate argument and authority. Since applicant did not argue in the-trial

court or on appeal that TEX. CONST. art. 1, §§ 13 and 19 set a higher/different standard than

the federal constitution, U.S. CONST. amend. XIV, and since applicant has not provided

separate authority to show how or why the Texas constitutional provisions are different from the

federal constitution, this Court concludes as a matter of law that only the federal constitutional

point may be reviewed in this application. See Muniz v. State, 851 S.W.2d 238,251-252 (Tex.

Crim. App. 1993) ("We will not make appellant’s state constitutional claim for him"); Heitman

v. State, 815 S.W.2d 681,690 n.23 (Tex. Crim. App. 1991); TEX. R. APP. P. 74. See also

Morehead v. State, 807 S.W.2d 577,579 n. 1 (Tex. Crim. App. 1991); Ex parte Keith v. State,

782 S.W.2d 861,863 n. 3 (Tex. Crim. App. 1989). This Court concludes as a matter of law

that applicant has therefore waived his Texas Constitutional ground for relief.

47. This Court finds that applicant has failed to show how the facts of this case, state

precedent on this issue, and state policy considerations compel this court to even consider his

argument that the state constitution affords him greater protection than the federal constitution

regarding the trial court’s duty to conduct a hearing to determine the nature and extent of

applicant’s physical condition and the trial court’s duty to obtain expert testimony about his

physical ability withstand the rigors of trial and effectively assist in his own defense.

48. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the structure

‘

of the Texas Constitution compels this Court to independently interpret the Texas Constitution

and to find that, under the facts of this case, the Texas Constitution is broader in its protections

than its federal counterpart regarding the trial court’s duty to conduct a hearing to determine the

nature and extent of applicant’s physical condition and the trial court’s duty to obtain expert

testimony about his physical ability to withstand the rigors of trial and effectively assist in his

own defense.

49. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the structural limitation of governmental power in art. 1, §§ 29 of the Texas

Constitution, however “unique”, compels this Court to independently interpret the document

to find, under the facts of this case, a broader protection of individual rights regarding the trial

court’s duty to conduct a hearing to determine the nature and extent of applicant’s physical

condition and the trial court’s duty to obtain expert testimony about his physical ability to

withstand the rigors of trial and effectively assist in his own defense.

50. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the historical

context of the Texas Constitution compels this Court to independently interpret the Texas

Constitution and to find, under the facts of this case, the Texas Constitution provides broader

protection than its federal counterpart regarding the trial court’s duty to conduct a hearing to

determine the nature and extent of applicant’s physical condition and the trial court’s duty to

obtain expert testimony about his physical ability to withstand the rigors of trial and effectively

assist in his own defense.

51. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the language

of art. 1, §§ 13 and 19 of the Texas Constitution compels this Court to independently interpret

the Texas Constitution and to find, under the facts of this case, the Texas Constitution provides

broader protection than its federal counterpart regarding the trial court’s duty to conduct a

hearing to determine the nature and extent of applicant’s physical condition and the trial court’s

- duty to obtain expert testimony about his physical ability to withstand the rigors of trial and

effectively assist in his own defense.

52. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that art. 1, § 10 of

the Texas Constitution, when combined with art. 1, §§ 13 and 19, compels this court to

independently interpret the Texas Constitution to find, under the facts of this case, that the Texas

Constitution provides, via applicant’s due course of law right to a fair trial, additional protection

than the Fourteenth and Fifth Amendments regarding the trial court’s duty to conduct a hearing

to determine the nature and extent of applicant’s physical condition and the trial court’s duty to

obtain expert testimony about his physical condition withstand the rigors of trial and effectively

assist in his own defense.

——

53. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, and if applicant has proved that the Texas Constitution provides broader protections

than its federal counterpart, applicant has still failed to prove by a preponderance of the evidence

that the trial court violated his due course of law rights under the Texas Constitution by putting

him to trial without conducting a hearing to determine the nature and extent of his physical

condition and its alleged affect on his ability to withstand the rigors of trial and effectively assist

in his own defense.

54. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he was denied to his right to due process when the trial court did not conduct a

hearing to determine the medical necessity for either the administration or the withdrawal of

applicant’s medication. This Court finds that applicant has failed to prove by a preponderance

of the evidence that he was forcibly medicated, and absent such a showing, this Court concludes

as a matter of law that applicant’s reliance on Riggins v. Nevada, 504 U.S. 127, 112 S.Ct.

Shisinday, 1995 WL 335764 at 2.

55. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he was under the influence of an anti-psychotic medication during his trial.

Applicant has failed to argue any authority to compel this Court to extend the holding of the

United States Supreme Court in Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d

479 (1992), to include types of medication other than antipsychotic medication. Absent such a

showing, this Court concludes as a matter of law that applicant's reliance or Riggins v. Nevada

is misplaced. See Riggins v. Nevada, 504 U.S. at__, 112 S.Ct. at 1816, 1I8L.Ed.2dat__.

56. This Court finds that, even if Riggins v. Nevada would apply, applicant has failed

to prove by a preponderance of the evidence that the trial court erred in not conducting a hearing

to determine the medical necessity for either the administration or the withdrawal of applicant's

medication. The Court further finds that based on the credible assertions of Dr. Adrian Collyns

in his letter to the trial court dated February 24, 1986 and in his affidavit, that applicant did not

require any pain medication to attend court after his prescription for pain medication ran out.

57. Applicant cites no specific authority for his contention that the “due course of

law" provisions in art. 1, §§ 13 and 19 of the Texas Constitution should be accorded a more

generous interpretation than their federal counterparts regarding the duty of the trial court, if

any, to conduct a hearing to determine the medical necessity for either the administration or the

withdrawal of applicant’s medication under the facts of this case than their federal counterparts.

This Court notes that the Court of Criminal Appeals has repeatedly said that to preserve an

argument that the Texas Constitution sets a different or higher standard than the United States

Constitution, the proponent :...st present the state constitutional point as a separate issue from

the federal constitutional point and must argue the state constitutional issue separately, presenting

separate argument and authority. Since applicant did not argue in the trial court or on appeal

that TEX. CONST. art. 1, §§ 13 and 19 set a higher/different standard than the federal

constitution, U.S. CONST. amend. XIV, and since applicant has not provided separate authority

ae |

to show how or why the Texas constitutional provisions are different from the federal

constitution, this Court concludes as a matter of law that only the federal constitutional point

may be reviewed in this application. See Muniz v. State, 851 S.W.2d 238,251-252 (Tex.

Crim. App. 1993) ("We will not make appellant's state constitutional claim for him"); Heitman

y. State, 815 S.W.2d 681,690 n.23 (Tex. Crim. App. 1991); TEX. R. APP. P. 74. See also

Morehead v. State, 807 S.W.2d 577,579 n. 1 (Tex. Crim. App. 1991); Ex par's Keith v. State,

782 S.W.2d 861,863 n. 3 (Tex. Crim. App. 1989). This Court concludes as a matter of law

that applicant has therefore waived his Texas Constitutional ground for relief.

58. This Court finds that applicant has failed to show how the facts of this case, state

precedent on this issue, and state policy considerations compel this court to even consider his

argument that the state constitution affords bien greater poutection Gan tee fatend constiation

regarding the duty of the trial court, if any, to conduct a hearing to determine the medical

necessity for either the administration or the withdrawal of applicant’s medication.

59. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the structure

of the Texas Constitution compels this Court to independently interpret the Texas Constitution

and to find that, under the facts of this case, the Texas Constitution is broader in its protections

than the federal constitution regarding the duty of the trial court, if any, to conduct a hearing

to determine the medical necessity for either the administration or the withdrawal of applicant's

— 6

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60. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the structural limitation of governmental power in art. 1, §§ 29 of the Texas

Constitution, however “unique”, compels this Court to independently interpret the document

to find, under the facts of this case, a broader protection of individual rights regarding the duty

of the trial court, if any, to conduct a hearing to determine the medical necessity for either the

administration or the withdrawal of applicant’s medication.

61. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the historical

context of the Texas Constitution compels this Court to independently interpret the Texas

Constitution and to find in it, under the facts of this case, broader protection than in its federal

counterpart regarding the duty of the trial court, if any, to conduct a hearing to determine the

medical necessity for either the administration or the withdrawal of applicant’s medication.

62. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the language

of art. 1, §§ 13 and 19 of the Texas Constitution compels this Court to independently interpret

the Texas Constitution and find in them, under the facts of this case, broader protection than in

their federal counterparts regarding the duty of the trial court, if any, to conduct a hearing to

determine the medical necessity for either the administration or the withdrawal of applicant's

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—

63. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that art. 1, § 10 of

the Texas Constitution, when combined with art. 1, §§ 13 amd 19, compels this court to

independently interpret the Texas Constitution to find, under the facts of this case, that the Texas

Constitution provides, via applicant’s due course of law right to a fair trial, additional protection

than the Fourteenth and Fifth Amendments regarding the duty of the trial court, if any, to

contest 0 hensing to Gsummine Go mafied cesenity tor cher Go étuisiemtes @ Ge

withdrawal of applicant’s medication.

evidence that he was denied due process of law when the trial court prevented him from

presenting his alibi defense by denying his oral motion for continuance during trial. This Court

finds that applicant failed to comply with the Texas Code of Criminal Procedure, which provides

that a criminal action may be continued on the written motion of the State or of the defendant,

upon sufficient cause shown, Tex, Code Crim. Proc. Ann, art. 29.03 (1994), and which requires

that the motion must be sworn to by a person having personal knowledge of the facts relied on

for the continuance. Tex, Code Crim. Proc. Ann, art. 29.08 (1994). This Court also finds that

applicant has failed show this Court any reason why his failure to comply with the statutory

requirements for a continuance should be overlooked by this Court.

65. This Court finds that even though applicant failed to comply with the statutory

requirements for a continuance after the trial had begun, the trial court considered applicant’s

motion for continuance on its merits, and denied the motion. (R.XVII:1121, 1166). This Court

finds that applicant has failed to prove by a preponderance of the evidence that his right to due

process of law was violated by the trial court’s consideration and denial of his motion for

continuance.

66. This Court finds that applicant has failed prove by a preponderance of the

evidence that the trial court abused its discretion in overruling applicant’s oral motion for

continuance during the trial.

67. This Court finds that applicant has failed to prove by a preponderance of the

evidence not only that the denial of the continuance was an abuse of discretion of the trial court

but also "so arbitrary and fundamentally unfair” that it denied him due process and rendered his

trial fundamentally unfair. McFadden v. Cabana, 851 F.2d 784 (Sth Cir. 1988), citing Hicks V.

Wainright, 633 F.2d 1146, 1148 (Sth Cir. 1981); Kirkpatrick v. Blackburn, 777 F.2d 272, 279

(Sth Cir. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d (1986)(citing United

States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985)).

68. This Court finds that applicant has failed to prove by a preponderance of the

evidence the probability of procuring the testimony of his co-defendant wife within a reasonable

time in his attempt to establish that the trial court abused its discretion in denying applicant’s

motion for continuance. This Court finds that Dorothy Miller-El pled “nolo contendere” to the

charges of Murder and Attempted Capital Murder on August 27, 1992, almost six years after

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her husband's motion for continuance. The Court concludes as a matter of law that this delay

is not a “reasonable time” for procurement of testimony as a basis for applicant’s motion for

continuance under Hicks v. Wainright, 633 F.2d at 1149.

69. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the testimony of his co-defendant wife would have been of such weight and

believability so as to influence the decision of the jury. See Byrd v. Wainwright, 428 F.2d 1017

(Sth Cir. 1970). This Court finds that, based on the overwhelming weight of the evidence

against applicant, including the credible assertions of the eye-witness to the robbery-murder and

considering the affidavit of applicant’s wife, Dorothy Miller-El, it would be mere speculation

to conclude that the proposed testimony by applicant’s co-defendant wife would have been of

such weight and believability as to influence the decision of a jury. See Byrd v. Wainwright, 428

F.2d 1017 (Sth Cir. 1970).

70. Applicant cites no specific authority for his contention that the “due course of

law” provisions in art. 1, §§ 13 and 19 and the right to compulsory process in art. 1, § 10 of

the Texas Constitution should be accorded a more generous interpretation than their federal

counterparts under the facts of this case regarding the trial court’s denial of applicant's motion

for continuance. This Court notes that the Court of Criminal Appeals has repeatedly said that

to preserve an argument that the Texas Constitution sets a different or higher standard than the

United States Constitution, the proponent must present the state constitutional point as a separate

issue from the federal constitutional point and must argue the state constitutional issue

tou

separately, presenting separate argument and authority. Since applicant did not argue in the trial

court or on appeal that TEX. CONST. art. 1, §§ 13 and 19 set a higher/different standard than

the federal constitution, U.S. CONST. amend. XIV, and since applicant has not provided

separate authority to show how or why the Texas constitutional provisions are different from the

federal constitution, this Court concludes as a matter of law that only the federal constitutional

point may be reviewed in this application. See Muniz v, State, 851 S.W.2d 238,251-252 (Tex.

Crim. App. 1993) ("We will not make appellant’s state constitutional claim for him"); Heitman

y. State, 815 S.W.2d 681,690 n.23 (Tex. Crim. App. 1991); TEX. R. APP. P. 74. See also

Morehead v, State, 807 S.W.2d 577,579 n. 1 (Tex. Crim. App. 1991); Ex parte Keith v. State,

782 S.W.2d 861,863 n. 3 (Tex. Crim. App. 1989). This Court concludes as a matter of law

that applicant has therefore waived his Texas Constitutional ground for relief.

71. This Court finds that applicant has failed to show how the facts of this case, state

precedent on this issue, and state policy considerations compel this court to even consider his

argument that the state constitution affords him greater protection than the federal constitution

regarding the trial court’s denial of his motion for continuance.

72. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the structure

of the Texas Constitution compels this Court to independently interpret the Texas Constitution

and to find that, under the facts of this case, the Texas Constitution is broader in its protections

than its federal counterpart regarding the trial court’s denial of his motion for continuance.

;

}

]

;

73. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the structural limitation of governmental power in art. 1, §§ 29 of the Texas

Constitution, however “unique”, compels this Court to independently interpret the document

to find, under the facts of this case, a broader protection of individual rights regarding the trial

court’s denial of his motion for continuance.

74. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the historical

context of the Texas Constitution compels this Court to independently interpret the Texas

Constitution and to find, under the facts of this case, that the Texas Constitution provides

broader protection than its federal counterpart regarding the trial court’s denial of his motion for

continuance.

75. | This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the language

of art. 1, §§ 13 and 19 of the Texas Constitution compels this Court to independently interpret

the Texas Constitution and to find, under the facts of this case, that the Texas Constitution

provides broader protection than its federal counterpart regarding the trial court’s denial of his

motion for continuance.

76. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a p.eponderance of the evidence that art. 1, § 10 of

the Texas Constitution, when combined with art. 1, §§ 13 and 19, compels this court to

independently interpret the Texas Constitution to find, under the facts of this case, that the Texas

Constitution provides, via applicant’s due course of law right to a fair trial, additional protection

than the Fourteenth and Fifth Amendments regarding the trial court’s denial of his motion for

continuance.

77. This Court finds that applicant has failed to prove by a preponderance of the

evidence why the procedural requirements for a motion for continuance under Tex. Code Crim.

Proc. Ann., Chapter 29, should not apply to his oral motion for continuance in this case. The

Court also finds that applicant has failed to prove by a preponderance of the evidence that he

was surprised when his co-defendant wife invoked her fifth amendment privilege not to testify.

78. This Court finds that based on the statement of applicant’s trial counsel during

trial a week before actually calling defendant’s wife to the stand that it was his understanding

that applicant’s wife would invoke her fifth amendment privilege not to testify, that applicant

. Was not surprised by his wife’s actions. This Court further finds that applicant has failed to

prove by a preponderance of the evidence that his wife’s invocation of her fifth amendment right

not to testify was such an unexpected occurrence since the trial began, which no reasonable

diligence could have anticipated, the applicant was so taken by surprise that a fair trial could not

be had. Tex. Code Crim, Proc. Ann. art. 29.13 (Vernon 1994).

ee ee re

79. This Court concludes as a matter of law that motions for continuance are

addressed to the court’s discretion. Tex. Code Crim. Proc, Ann. art. 29.06 (Vernon 1994). This

Court further concludes as a matter of law that equitable motions for continuance made during

trial are reviewable as well under an abuse of discretion standard. Vega v. State, 898 S.W.2d

359, 361 (Tex. App. — San Antonio 1995, no pet.); Darty v. State, 149 Tex. Crim 256, 193

S.W.2d 195 (1946); Daigle v. State, 658 S.W.2d 774 (Tex. App. — Beaumont 1983, no pet.).

This Court finds that applicant has failed to prove by a preponderance of the evidence that the

trial court abused its discretion in denying applicant’s oral motion for continuance, whether the

motion is considered statutory or equitable.

80. This Court concludes as a matter of law that O’Rarden v. State, 777 S.W.2d 455

(Tex. App.-Dallas, 1989, pet. ref’d) is distinguishable from the instant case. This Court finds

that applicant’s argument that a “surprise” motion for continuance during trial need not comply

with the procedural requirements because the testimony from the witness stand or representations

of counsel provide the basis of the motion belies the factual situation in the instant case. This

Court finds, based on personal recollection of the trial court and a review of the trial record, at

no time did applicant’s trial counsel contend that anyone on the defense team was surprised

when applicant's wife invoked her fifth amendment privilege. The Court additionally finds that

applicant’s trial counsel simply asked for a continuance until the wife’s related cases were

complete and she no longer needed the protection of the Fifth panentenen. The Court further

finds applicant’s trial counsel had acknowledged more than a week earlier that applicant’s wife

would indeed invoke her right not to testify. The Court finds that applicant has failed to prove

by a preponderance of the evidence that any exigency or “surprise” existed.

81. . This Court finds that, while in his instant application for habeas corpus relief

applicant tries to circumvent the requirements of chapter 29 of the Code of Criminal Procedure

in this application by claiming he was surprised by his wife’s actions at the time of his trial, the

motion for continuance was based on his wife being unavailable to testify. This Court finds

(and applicant concedes in his application) that an "absent witness" motion for continuance must

satisfy the requirements of the Code of Criminal Procedure. Lewis v. State, 664 $.W.2d 345.

349 (Tex. Crim. App. 1984); Ramirez v. State, 842 S.W.2d 796, 800 (Tex. App.--El Paso

1992, no pet.); Coons v. State, 758 S.W.2d 330, 335 (Tex. App.--Houston [14th Dist.] 1988,

pet. ref’d).

82. The Court finds that applicant has failed to prove by a preponderance of the

evidence that justice would have been better served by the trial court continuing applicant’s trial

for six yours 20 that his wile could dlapose of her own sslated criminal charges and testify in his

behalf. The Court further finds that no justice would have been served in delaying applicant’s

trial until some unforeseeable date in the future. Williams v. State, 625 S.W.2d 769 (Houston

[14th Dist.] 1981, no pet.). The Court finds that only after August 27, 1992, when applicant's

wife pled “nolo contendere” to the charges of Murder and Attempted Capital murder, would

Dorothy Miller-El have been available to testify.

83. This Court finds that even if applicant had proved that the trial court abused its

discretion in denying his motion for continuance, applicant has failed to prove by a

preponderance of the evidence that a reasonable probability exists that the verdict might have

been different had the trial been properly conducted. Schrader v, Whitley, 904 F.2d 282, 288

(Sth Cir. 1990).

84. This Court finds that applicant has failed to prove by a preponderance of the

evidence how the potential prejudice, if any, of evidence of the group affiliation of applicant

oygxeighed its probative value in proving the identity of applicant as the person who committed

this capital murder. This Court finds that the jury was entitled to know about applicant’s prior

visit to the scene of the murder and the circumstances surrounding it. See Beasley v. State, 902

S.W.2d 452 (Tex. Crim. App. 1995). This Court finds that eyewitness Donald Hall’s

identification of applicant and other members of the religious organization as the group that

robbed the hotel and killed Douglas Walker was based on his seeing them at the Holiday Inn two

weeks prior when the group celebrated the Moorish Temple Feast, and thus applicant's affiliation

with this religious group was relevant.

85. This Court finds that applicant has failed to prove how his due process rights were

violated by the trial court admitting evidence of his group affiliation. This Court finds that

applicant has failed to prove how the admission of this evidence inflamed or prejudiced the jury

against applicant on racial or religious grounds. This Court finds that the applicant has failed

to point to any instance in the record where the State put on any evidence regarding the

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philosophy, religious beliefs, or practices of the group. This Court further finds that applicant

has failed to cite to any instance in the record where the State’s attorneys or witnesses criticized

or degraded the organization or implied to the jury that the defendant was more or less guilty

because of his affiliation with the group.

86. Applicant cites no specific authority for his contention that the “due course of

law" provisions in art. 1, §§ 13 and 19 of the Texas Constitution should be accorded a more

generous interpretation of applicant’s group affiliation under the facts of this case than their

federal counterparts. This Court notes that the Court of Criminal Appeals has repeatedly said

that to preserve an argument that the Texas Constitution sets a different or higher standard than

the United States Constitution, the proponent must present the state constitutional point as a

separate issue from the federal constitutional point and must argue the state constitutional issue

separately, genenieg separate argument and authority. Since applicant did not argue in the trial

court or on appeal that TEX. CONST. art. 1, §§ 13 and 19 set a higher/different standard than

the federal constitution, U.S. CONST. amend. XIV, and since applicant has not provided

separate authority to show how or why the Texas constitutional provisions are different from the

federal constitution, this Court concludes as a matter of law that only the federal constitutional

point may be reviewed in this application. See Muniz v. State, 851 S.W.2d 238,251-252 (Tex.

Crim. App. 1993) ("We will not make appellant's state constitutional claim for him"); Heitman

vy. State, 815 S.W.2d 681,690 n.23 (Tex. Crim. App. 1991); TEX. R. APP. P. 74. See also

Morehead v, State, 807 S.W.2d 577,579 n. 1 (Tex. Crim. App. 1991); Ex parte Keith v. State,

Lis a b crue os » be ww ved eames Dement boned et @ Remote nal 3 Se eetend od Leas sy ed eo ——~4

782 S.W.2d 861,863 n. 3 (Tex. Crim. App. 1989). This Court concludes as a matter of law

that applicant has therefore waived his Texas Constitutional ground for relief.

87. This Court finds that applicant has failed to show how the facts of this case, state

precedent on this issue, and state policy considerations compel this court to even consider his

argument that the state constitution affords him greater protection than the federal constitution

regarding his group affiliation.

88. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the structure

of the Texas Constitution compels this Court to independently interpret the Texas Constitution

and to find that, under the facts of this case, the Texas Constitution is broader in its protections

than its federal counterpart regarding applicant’s group affiliation.

89. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the structural limitation of governmental power in art. 1, §§ 29 of the Texas

Constitution, however “unique”, compels this Court to independently interpret the document

to find, under the facts of this case, broader protection of individual rights regarding applicant’s

group affiliation.

90. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the historical

-—~9

eS ee a a oe

context of the Texas Constitution compels this Court to independently interpret the Texas

Constitution and to find, under the facts of this case, the Texas Constitution provides broader

protection than its federal counterpart regarding applicant’s group affiliation.

91. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that the language

of art. 1, §§ 13 and 19 of the Texas Constitution compels this Court to independently interpret

the Texas Constitution and find, under the facts of this case, the Texas Constitution provides

broader protection than its federal counterpart regarding applicant's group affiliation.

92. This Court finds that, if applicant has not waived his Texas Constitutional ground

for relief, applicant has failed to prove by a preponderance of the evidence that art. 1, § 10 of

the Texas Constitution, when combined with art. 1, §§ 13 and 19, compels this court to

independently interpret the Texas Constitution to find, under the facts of this case, that the Texas

Constitution provides, via applicant’s due course of law right to a fair trial, more protection than

the Fourteenth and Fifth Amendments regarding applicant’s group affiliation.

93. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he received ineffective assistance when his trial counsel did not raise the issue of

his competency at trial or seek a continuance until his physical condition improved to a point he

would be competent. This Court finds that applicant has failed to prove that he received

ineffective assistance when his trial counsel did not request a competency hearing. This Court

finds that the record does not reveal any evidence that would raise a “bona fide doubt” as to the

competency of applicant during his trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15

L.Ed.2d 815 (1966); Tex. Code Crim, Proc, Ann, art. 46.02 §2(b) (Vernon 1979).

94. This Court finds that nothing in the trial record, the trial court’s file, the medical

records from the two hospitals that treated applicant, or applicant’s records from the Dallas

County Jail proves by a preponderance of the evidence that applicant received ineffective

assistance when his trial counsel did not raise the issue of his competency at trial, did not

request a competency hearing, and did not seek a continuance until his physical condition

improved.

95. This Court finds that applicant has failed to prove by a preponderance of the

evidence that applicant received ineffective assistance when his trial counsel did not request a

hearing to determine the necessity of continuing or discontinuing applicant’s medication. This

Court also finds that applicant has failed to cite any relevant authority that the actions of his trial

counsel in not requesting a hearing to determine the necessity of continuing or discontinuing

applicant’s medication should be considered such a serious error that his trial counsel were not

functioning effectively as counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). This Court finds that applicant has failed to prove by a

preponderance of the evidence that any deficient performance of his trial counsel prejudiced the

‘ * . . . —— ‘ . i * , vr

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defense to such a degree that the defendant was deprived of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court finds that

applicant has failed to prove how this alleged “omission or mistake” of his trial counsel

amounted to professional errors such as to raise a reasonable possibility that the outcome of the

trial would be different but for the errors. Strickland v. Washington, 466 U.S. at 694.

96. This Court finds that applicant has failed to prove by a preponderance of the

evidence that applicant received ineffective assistance when his trial counsel did not adhere to

the statutory requirements of Tex. Code Crim, Proc. Ann., Chapter 29, in making applicant's

motion for continuance. This Court finds that applicant has failed to prove how he was

prejudiced by the actions of his trial counsel when the trial court considered the merits of the

motion even though the oral motion for continuance did not adhere to the statutory requirements

of Tex. Code Crim. Proc. Ann., Chapter 29.

97. This Court also finds that applicant has failed to prove by a preponderance of

the evidence that when his trial counsel did not adhere to the statutory requirements of Tex,

Code Crim. Proc, Ann., Chapter 29, his trial counsel committed such a serious error that they

were not functioning effectively as counsel. Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court finds that applicant has failed to prove by a

preponderance of the evidence that any deficient performance of his trial counsel prejudiced the

defense to such a degree that the defendant was deprived of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court finds that

towed

}

applicant has failed to prove how this alleged “omission or mistake” of his trial counsel

amounted to professional errors such as to raise a reasonable possibility that the outcome of the

trial would be different but for the errors. Strickland v. Washington, 466 U.S. at 694.

98. This Court finds that applicant’s inclusion of his contention that he received

ineffective assistance from his trial counsel when they failed to introduce into evidence the

testimony of his applicant’s co-defendant wife as a statement of an unavailable witness in the

same ground for relief as his ineffective assistance claim regarding his counsel not making a

motion for continuance renders this ground as multifarious and presents nothing for this Court

for review. Tex. R. App. P. 74(d); County v. State, 821 S.W.2d 303, 308 (Tex. Crim. App.

1989).

99. This Court finds that, if applicant has properly preserved his contention that his

trial counsel were ineffective when they did not offer the testimony of applicant’s co-defendant

wife as a statement of an unavailable witness, applicant has failed to prove by a a

of the evidence that their inaction constituted such a serious error that they were not functioning

effectively as counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). This Court finds that applicant has failed to prove by a preponderance of

the evidence that any deficient performance of his trial counsel prejudiced the defense to such

a degree that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court also finds that applicant has failed

to prove how this alleged “omission or mistake" of his trial counsel amounted to professional

nes

errors such as to raise a reasonable possibility that the outcome of the trial would be different

but for the error, Strickland v. Washington, 466 U.S. at 694, especially in light of the fact that

applicant's wife was, at the time of trial, under criminal indictment for her role in this same

robbery-murder.

100. This Court finds that the applicant has failed to prove by a preponderance of the

evidence that the testimony of the applicant’s co-defendant wife was admissible as a statement

of an unavailable witness. This Court concludes as a matter of law that under Tex. R. Crim.

Evid. 804(b)(1), testimony given by an unavailable declarant as a witness at another hearing of

the same or a different proceeding will not be excluded under the hearsay rule if the party

against whom the testimony is now offered had an opportunity and similar motive to

develop the testimony by direct, cross, or redirect examination. This Court finds that in this

situation, the State did not have an opportunity to examine applicant’s wife during the hearing

where she attempted to invoke her Fifth Amendment not to testify and thus did not have the

opportunity to develop the testimony by cross examination. This Court therefore concludes as

a matter of law that the statement of applicant’s codefendant wife would be excluded under the

hearsay rule.

101. This Court finds that applicant has failed to prove by a preponderance of the

evidence that the hearing testimony of the applicant’s co-defendant wife was admissible at all.

This Court finds that the testimony of applicant’s wife as to the location of her husband during

the robbery/murder was not responsive to the question asked by the trial court. (R.X VII: 1078).

This Court finds that applicant's wife’s non-responsive answer was not admissible as evidence.

102. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he was not afforded effective assistance when his trial counsel did not object to the

admission of, or alternatively seek a limiting instruction for, evidence of extraneous offenses.

This Court finds that applicant has failed to prove by a preponderance of the evidence that his

trial counsel's inaction constituted such a serious error that they were not functioning effectively

as counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). This Court finds that applicant has failed to prove by a preponderance of the evidence

that any deficient performance of his trial counsel prejudiced the defense to such a degree that

the defendant was deprived of a fair trial. Strickland v, Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court also finds that applicant has failed to prove how

this alleged “omission or mistake” of his trial counsel amounted to professional errors such as

to raise a reasonable possibility that the outcome of the trial would be different but for the error,

Strickland v. Washington, 466 U.S. at 694.

103. This Court finds that applicant, in support of his contention that he did not receive

effective assistance when his trial counsel did not object to the admission of, or alternatively

seek a limiting instruction for, evidence of extraneous offenses, has only cited to one portion of

the trial record which contains testimony that was heard outside the presence of the jury. (See

R.XV:310). This Court finds that, without ovher specific citations to the record demonstrating

where extraneous acts were heard by the jury, applicant has failed to adequately brief this issue

for this Court’s review. This Court further finds that, without other citations to the record that

demonstrate where extraneous acts were considered by the jury, applicant has failed to prove by

a preponderance of the evidence that he was harmed by the admission of extraneous offenses.

104. This Court finds that, even if ee issue is adequately briefed for consideration by

this Court, applicant has failed to prove by a preponderance of the evidence that the extraneous

offenses he complains of in his application were not “circumstances of the offense” and thus

relevant to proving applicant’s identity as the person who committed the capital murder. This

Court finds that the complained-of testimony concerned the facts surrounding the arrest of

applicant in Houston, including charges against applicant for evading arrest and the unlawful

carrying of a weapon. The Court finds that a Houston police officer testified that applicant, in

an attempt to escape the approaching law enforcement officers, quickly spun around the car that

he was driving but was stopped by a police vehicle blocking his way. Miller-E] v. State, no.

69,677 at 8. This Court finds that the Houston police officer testified that applicant, sprang

from the car, brandishing a pistol, and was shot by an Houston Police Department marksman

and then arrested. Miller-E] v. State, no. 69,677 at 8; (R.XV:316). This Court also finds that

the evidence in the trial established that one of the two guns applicant carried at the time of his

arrest was the murder weapon. (R.XV:933).

105. This Court finds that applicant has failed to rebut the presumption that his trial

counsel, in not objecting to the admission of, or alternatively seeking a limiting instruction for,

evidence of extraneous offenses, were exercising sound trial strategy. Jackson v. State, 877

S.W.2d at 771. This Court also finds that applicant has failed to overcome the presumption that

trial counsel made all significant decisions in the exercise of reasonable professional judgment.

Delrio v. State, 840 S.W.2d 724 (Tex. Crim. App. 1992). This Court finds that utente

trial counsel, while cross-examining the Houston police officer in a hearing outside the presence

of the jury regarding the arrest and search, elicited testimony that the actual owner of the vehicle

applicant was driving, John Hicks, had been in the vehicle moments before applicant’s one,

(R.XV:331). The Court finds that the Houston police officer also testified, under cross-

examination by applicant’s trial counsel, that Hicks was also the owner of the house that was

searched pursuant to a search warrant, where other evidence linked to the robbery/murder was

found. (R.XV:333). The Court further finds that applicant’s trial counsel, in cross-examining

the Houston police officer, succeeded in having the officer admit that applicant had no

connection with the house searched (R.XV:335) and, other than being in the car at the time it

was stopped, no connection with the car (R.XV:337). The Court finds that applicant’s trial

counsel later argued in closing argument that the items found in the car and the house, attributed

to applicant, did not in fact belong to applicant, but to John Hicks, the owner of the car and the

Houston residence. (R.X VII: 1240-1242). This Court therefore finds that applicant’s trial counsel

exercised sound trial strategy in arguing that the evidence could not be linked to applicant.

106. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he did not receive effective assistance when his trial counsel did not request a

limiting jury instruction in substantially correct form regarding evidence of extraneous offenses.

The Court finds that applicant has failed to prove that his trial counsel's actions constituted such

a serious error that they were not functioning effectively as counsel, in light of the trial court’s

instruction to applicant’s trial counsel to make their objections orally as if they were in writing.

(R.XVII: 1201). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). This Court finds that applicant has failed to prove by a preponderance of the evidence

that any deficient performance of his trial counsel prejudiced the defense to such a degree that

the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court also finds that applicant has failed to prove how

this alleged “omission or mistake” of his trial counsel amounted to professional errors such as

to raise a reasonable possibility that the outcome of the trial would be different but for the error,

Strickland v. Washington, 466 U.S. at 694.

107. The Court finds that applicant has failed to prove by a preponderance of the

evidence why the jury was not entitled to consider the evidence of extraneous offenses upon any

issue to which it was relevant, without limitation, when the evidence was admitted into evidence

for general purposes (explained by the trial court as “circumstances of the offense"). Miller-E]

y. State (Tex. Crim. App. no. 69,677, September 16, 1992) at 10, citing Richardson v. State,

786 S.W.2d 335, 337-338 (Tex. Crim. App. 1990); Cantrell v. State, 731 S.W.2d 84, 94-95

(Tex. Crim. App. 1987).

108. This Court concludes as a matter of law that, because the Court of Criminal

Appeals has previously held that the extraneous offenses admitted in this case were admitted for

the jury’s unlimited consideration and that a limiting instruction was therefore not required,

applicant’s trial counsel could not be ineffective for failing to request such an instruction. See

Camacho v. State, 864 S.W.2d 524, 534-35 (Tex. Crim. App. 1993).

109. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he received ineffective assistance because his trial counsel did not investigate

confirmation of applicant’s alleged alibi through the narcotic surveillance of the Irving Police

Department. This Court finds that applicant has failed to prove such evidence existed and this

Court further finds that applicant fails to show how his unsubstantiated accusation proves that

there was a reasonable probability that, but for his trial counsel’s inaction, the result of the trial

would have been different. See Guidry v. State, 896 S.W.2d 381, 385 (Tex. App.--Texarkana,

1995, no pet.); Strickland v. Washington, 466 U.S. at 694.

110. This Court finds, based on the credible assertions in the affidavit of Irving Police

Department Detective Randall Johnson, that the Irving Police Department did not have any

surveillance records in its possession that would tend to prove that applicant was anywhere other

than at the Holiday Inn in Irving, Texas, during the time of the robbery/murder. Without such

a showing, applicant has failed to prove by a preponderance of the evidence that his trial

counsel’s inaction constituted such a serious error th at they were not functioning effectively as

counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

This Court finds that applicant has failed to prove by a preponderance of the evidence that any

deficient performance of his trial counsel prejudiced the defense to such a degree that the

defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). This Court also finds that applicant has failed to prove how this

alleged “omission or mistake” of his trial counsel amounted to professional errors such as to

raise a reasonable possibility that the outcome of the trial would be different but for the error,

S*ickland_v. Washington, 466 U.S. at 694.

111. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he received ineffective assistance when his trial counsel permitted information

concerning applicant’s affiliation with the "Moorish Science Temple” to come before the jury.

This Court finds that applicant has failed to prove that evidence of his affiliation with this group

was not relevant to proving applicant’s identity as the person who committed the robbery/murder

and to demonstrate the reliability of eyewitness Donald Hall’s identification of applicant.

Without such a showing of harm, applicant has failed to prove by a preponderance of the

evidence that his trial counsel’s allowing this evidence to come before the jury constituted such

a serious error that they were not functioning effectively as counsel. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court finds that applicant

has failed to prove by a preponderance of the evidence that any deficient performance of his trial

counsel prejudiced the defense to such a degree that the defendant was deprived of a fair trial.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This

Court also finds that applicant has failed to prove how this alleged “omission or mistake" of his

trial counsel amounted to professional errors such as to raise a reasonable possibility that the

‘

Oe al

outcome of the trial would be different but for the error, Stnckland v. Washington, 466 U.S.

at 694.

112. This Court finds that applicant has failed to prove by a preponderance of the

evidence that his trial counsel were not exercising sound trial strategy when they allowed the

admission of evidence of applicant’s group affiliation before the jury. Jackson v. State, 877

S.W.2d at 771. This Court finds that applicant, in fact, attempted to use his religious affiliation

to his advantage in his punishment case-in-chief. (R.XIX:115). This Court finds that applicant

has failed to overcome the presumption that trial counsel made all significant decisions in the

exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 724 (Tex. Crim.

App. 1992).

113. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he received ineffective assistance because his trial counsel should have known that

applicant’s wife would be brought into the cou rtroom to be identified by a witness while dressed

in her jail uniform, and therefore his trial counsel should have made a motion to have her

dressed more appropriately before she entered the courtroom. This Court finds that applicant

has failed to prove that his trial counsel made such a serious error in not making a motion before

his wife entered the courtroom that they were not functioning effectively as counsel and that

their actions amounted to professional errors that denied him a fair trial. Strickland v,

Washington, 466 U.S. at 687, 104 S.Ct. at 2052, 80 L. Ed. at 674.

114. This Court finds that applicant’s trial counsel asked the jury to be excused before

applicant’s wife was brought into the courtroom and finds that if applicant’s trial counsel had

known that she would be brought into the courtroom in her jail garb, they would have made the

objection at that time. This Court finds that, as soon as it became known to applicant’s trial

counsel that she was in her jail uniform, they did everything in their power to cure the prejudice,

if any, by objecting and moving for a mistrial.

115. This Court finds applicant has failed to prove by a preponderance of the evidence

that whatever harm applicant suffered by the appearance of applicant’s wife before the jury in

her jait uniform was not cured by the trial court’s instruction to the jury to disregard her

clothing. This Court finds that applicant has failed to prove by a preponderance of the evidence

that any deficient performance of his trial counsel prejudiced the defense to such a degree that

the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

116. This Court concludes as a matter of law that applicant’s reliance on Estelle v.

Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed. 126 (1976) is misplaced. This Court finds

that the United States Supreme Court in Estelle was not faced with a similar fact situation as the

instant case as applicant contends since Estelle himself was put to trial in identifiable prison

clothing, whereas applicant was dressed in a suit during his jury trial.

117. This Court finds that even if Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691,

48 L.Ed. 126 (1976) applies under the facts of this case, and even if the actions of applicant’s

trial counsel constituted error, applicant has failed to show a reasonable probability that the

outcome of the trial would be different but for his wife appearing before the jury in her jail

uniform. Strickland v. Washington, 466 U.S. at 694.

118. This Court finds that in analyzing a claim under Estelle, the Court of Criminal

Appeals has held that where there is no showing of harm or prejudice to applicant and when the

evidence prevails overwhelmingly against him, error, if any, is harmless beyond a reasonable

doubt. Kimbel v. State, 537 S.W.2d 254 (Tex. Crim. App. 1976). This Court finds that

applicant has not brought forth any evidence that he was harmed or prejudiced by his wife’s

appearance in her jail uniform. This Court finds that applicant himself was clothed in civilian

clothing, as required in Estelle. Additionally, this Court finds that the evidence against

applicant, from the eyewitness testimony to applicant’s possession of the murder weapon when

he was arrested, was overwhelming, and thus error, if any, is harmless beyond a reasonable

doubt.

119. This Court finds that applicant has failed to prove by a preponderance of the

evidence that he was denied effective assistance of counsel and that his right to a fair trial

suffered due to the fact that one of his trial counsel, Royce West, was running for the office of

District Attorney of Dallas County, Texas, during his trial. This Court finds that applicant has

failed to prove by a preponderance of the evidence that Mr. West's representation was deficient

ee ee a a a

because of his candidacy for the office of District Attorney of Dallas County. Strickland v.

Washington, 466 U.S. at 687, 104 S.Ct. at 2052, 80 L. Ed. at 674. Applicant has also failed

to prove that any deficient performance prejudiced the defense to such a degree that applicant

was deprived of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2052, 80

L. Ed. at 674. This Court finds that applicant has failed to allege or prove by a preponderance

of the evidence that any action by Royce West constituted such serious errors that he was not

functioning effectively as counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). This Court also finds that applicant has failed to prove how this

alleged “omission or mistake" amounted to professional errors such as to raise a reasonable

possibility that the outcome of the trial would be different but for the error, Strickland v.

Washington, 466 U.S. at 694.

120. This Court finds that the trial court was aware of the fact that Royce West, at the

time of applicant’s trial, was a candidate in the Democratic Primary for the office of District

Attorney of Dallas County, Texas, and found no conflict existed between Mr. West's

representation of applicant and his candidacy. (R.XTV:47-48).

121. This Court finds that applicant has failed to prove that the pre-trial hearing on

applicant’s “Motion to Quash the Jury Selected and/or Select a Separate Jury" was not a justified

inquiry into potential systematic prejudice against blacks serving on juries in Dallas County.

This Court finds that, although Mr. West's political opponent was one of the nine witnesses

called to testify in the hearing, Mr. Cunningham, not Mr. West, questioned him.

‘

122. This Court finds that applicant has failed to rebut the presumption that his trial

counsel performed competently. Jackson v. State, 877 S.W.2d 768,771 (Tex. Crim. App.

1994).

123. This Court finds that applicant has failed to rebut the presumption that his trial

counsel made all significant decisions in the exercise of reasonable professional judgment. Delrio

v. State, 840 S.W.2d 724 (Tex. Crim. App. 1992).

124. This Court finds that applicant has failed to prove by a preponderance of the

evidence that his trial counsel's performance, viewed as a whole, was deficient, in that he made

such serious errors they were not functioning effectively as counsel and that his trial counsel’s

deficient performance prejudiced the defense to such a degree that the defendant was deprived

of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). This Court finds that applicant has failed to prove by a preponderance of the evidence

that any deficient performance of his trial counsel prejudiced the defense to such a degree that

the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court finds that applicant has failed to prove by a

preponderance of the evidence that his trial counsel committed omissions or other mistakes

which, viewed os 8 whole, amounted to professional exvers such os to sales 0 sensensble

possibility that the outcome of the trial would be different but for the errors. Strickland v.

Washington, 466 U.S. at 694.

al |‘ bed

125. This Court has previously found that applicant failed to prove that a bona fide

doubt existed as to his competency to stand trial, and this Court finds that without such a

showing, applicant cannot prove that his appellate counsel was ineffective in not arguing on

appeal that his trial counsel should have requested a hearing to determine his competency or a

continuance until he regained his competency.

126. This Court has previously found that applicant failed to prove that the trial court

erred in its finding that applicant was competent to stand trial, and this Court has previously

found that applicant has failed to prove by a preponderance of the evidence that, without a bona

fide doubt of the competency of applicant, the trial court had no cause to hold a competency

penton on. cnesees Gautam, Gis Cunt Gah On entian te tinbesmnenetinh

appellate counsel was ineffective in not arguing on appeal that the trial court erred in not

conducting a competency hearing.

127. This Court has previously held that applicant failed to prove that his medication

status affected his competency and that applicant failed to prove the trial court erred in failing

to hold a hearing to determine the need for applicant’s medication; therefore, this Court finds

that applicant has failed to prove by a preponderance of the evidence that he was denied effective

assistance when his appellate counsel did not argue on appeal that the trial court erred in not

conducting a hearing to determine the necessity of continuing or ending applicant's medication.

re 8 eee Rae

be ee

128. This Court has previously held that applicant failed to prove that the trial court

erred in denying applicant’s motion for continuance, which was based on “surprise” created by

his co-defendant wife’s invocation of her right to remain silent; therefore, this Court finds that

squfeaas bas tela to grove bey 0 guependuamenn of Go extienen Ou: be eas Gnied Gude

assistance when his appellate counsel failed to argue on appeal that the trial court erred in its

denial of the motion for continuance.

129. This Court has previously found that applicant failed to prove that the trial court

erred in allowing evidence of applicant’s affiliation with the Moorish Science Temple; therefore

this Court finds that applicant has failed to prove by a preponderance of the evidence that

applicant was denied effective assistance when his appellate counsel failed to argue on appeal

that the trial court erred in allowing this evidence before the jury.

130. This Court has previously found that applicant failed to prove that he was denied

effective assistance of counsel at trial; therefore, this court finds that applicant has failed to

prove by a preponderance of the evidence that he was denied effective assistance on appeal when

his appellate counsel did not allege any ineffective assistance claims regarding the representation

by his trial counsel.

131. This Court finds that applicant has failed to prove by a preponderance of the

evidence that his appellate counsel’s performance, viewed as a whole, was deficient, in that he

made such serious errors he was not functioning effectively as counsel and that his appellate

6 *- onal

counsel’s deficient performance prejudiced the defense to such a degree that the defendant was

deprived of a full and fair appeal. Strickland v, Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). This Court finds that applicant has failed to prove by a

preponderance of the evidence that any deficient performance of his appellate counsel prejudiced

the defense to such a degree that the defendant was deprived of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court finds that

applicant has failed to prove by a preponderance of the evidence that his appellate counsel

committed omissions or other mistakes which, viewed as a whole, amounted to professional

errors such as to raise a reasonable possibility that the outcome of the appeal would be different

but for the errors. Strickland v, Washington, 466 U.S. at 694.

132. This Court finds that applicant has failed to rebut the presumption that his

appellate counsel performed competently. Jackson v, State, 877 S.W.2d 768,771 (Tex. Crim.

App. 1994).

133. This Court finds that applicant has failed to rebut the presumption that his

appellate counsel made all significant decisions in the exercise of reasonable professional

judgment. Delrio v. State, 840 S.W.2d 724 (Tex. Crim. App. 1992).

134. Applicant's claims are without merit; thus, applicant fails to show that he was

denied due process and fundamental fairness. Applicant has failed to demonstrate that his

conviction was improperly obtained. Accordingly, it is recommended to the Texas Court of

Criminal Appeals that relief be denied. The Court admits as evidence the exhibits of applicant

and of the State attached to, or accompanying, their pleading in this case, and the Court has

examined and considered those exhibits as well as the entire record in this case in reaching these

findings of facts and conclusions of law. The Court finds that there are no controverted,

previously unresolved facts material to the legality of applicant's confinement which require a

further evidentiary hearing.

ORDER

@ THE CLERK IS HEREBY ORDERED to prepare a transcript of all papers in

cause number W85-78648-L(A) and transmit same to the Court of Criminal Appeals as provided

by Article 11.07 of the Texas Code of Criminal Procedure. The transcript shall include certified

copies of the following documents:

all of the applicant's pleadings filed in cause number W85-78668-

L(A) including his Application for Writ of Habeas Corpus and

exhibits contained therewith and any subsequent filings;

the Respondent’s Original Answer in cause number W85-78668-

L(A) and exhibits contained therewith and any subsequent filings;

this Court’s findings of fact, conctusions of law, and ender;

record in cause number F85-78668-L, unless they have been

previously forwarded to the Court of Criminal Appeals.

THE CLERK IS FURTHER ORDERED to send a copy of this Court’s findings

of fact and conclusions of law, including its order, to applicant’s counsel, Ruth Kollman, 6517

Hillcrest, Suite 310, Dallas, Texas, 75205, and to counsel for the State.

GNED thi /b th day of April, 1996

]

2 the indictment, judgment, sentence, docket sheet, and appellate

;

]

;

PAT MCDOWELL, G FOR

JUDGE MANNY ALVAREZ

CRIMINAL D CT COURT FIVE

DALLAS COUNTY, TEXAS

ore

ey .

oe ORIGINAL IN THE UNITED STATES DISTRICT COURT FILED

EX PARTE THOMAS JOE MILLER-EL Habeas Corpus Application NORTHERN DISTRICT OF TEXAS JN 31 20

DALLAS DIVIS

WRIT NO. 31.001-01 from DALLAS County @ a

THOMAS JOE MILLER-EL § By ce

ORDER : —

D Petitioner, 3

This is an application for a writ of habeas corpus transmitted to this Court pursuant to ha NO. 3-96-CV-1992-H

the provisions of Article 11.07, V.A.C.C.P. Applicant was convicted of capital murder in the se erm Cri _

as T — a ENTERED ON DOCKET

Criminal District Court Number Five of Dallas County and sentence was assessed at death Fentice, lnstestions! Division —

following affirmative replies to the special issues submitted to the jury pursuant to Article Respondent. § JAN 3 | 2000 |

37.071, V.A.C.C.P. us. —

37.071 : FINDINGS AND RECOMMENDATION OF THEE tER®'S OFFICE

In the present application Applicant raises thirteen allegations, some with subparts, UNITED STATES MAGISTRATE JUDGE

challenging the conviction or the penalty assessed. The trial court judge entered findings of fact This case has been referred to the United States magistrate judge pursuant to 28 U.S.C.

§ 636(b) and an order of reference from the district court. The findings and recommendation of

and conclusions of law and a recommendation that all relief requested be denied. We have @

reviewed the record along with the application itself and its supporting documentation. We find the magistrate judge are as follow:

that the findings of fact and conclusions of law are fully supported by the record and that the I.

recommendation should be followed. PROCEDURAL BACKGROUND

Accordingly, all relief requested is denied. Petitioner Thomas Joe Miller-E] was convicted of capital murder and sentenced to death.

IT IS SO ORDERED THIS THE 17TH DAY OF JUNE, 1996. His conviction and sentence were affirmed on direct appeal. Miller-El v. State, No. 69,677 (Tex.

Crim. App. September 16, 1992), cert. denied, 114 S.Ct. 100 (1993). Petitioner also filed an

PER CURIAM application for writ of habeas corpus in state court. The trial judge made written findings and

recommended that the application be denied. The Texas Court of Criminal Appeals denied habeas

DO NOT PUBLISH relief in an unpublished opinion. Ex parte Miller-El, No. 31,001 (Tex. Crim. App. June 17,

1996). Petitioner then filed this action in federal court.

0001

Cae

Il.

ISSUES PRESENTED

Petitioner raises four issues in six grounds for relief. He contends that: (1) the prosecution

exercised its peremptory challenges in a racially discriminatory manner; (2) a prospective juror

ons teint iii (3) the trial court failed to conduct a competency hearing and

allowed the trial to proceed despite the fact that he was incompetent; and (4) the prosecutor

improperly referred to his religious affiliation during sentencing.

Il.

STANDARD OF REVIEW

The standard of review in federal habeas proceedings is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (‘AEDPA"). ANTITERRORISM AND EFFECTIVE DEATH

PENALTY ACT, Pub.L. No. 104-132, 110 Stat. 1214 (1996). The AEDPA establishes specific

standards and procedures for reviewing death penalty habeas cases. See 28 U.S.C. §§ 2661-2266.

These rules apply to all capital cases pending on or after the effective date of the AEDPA,

provided the state has established a mechanism for the “appointment, compensation, and payment

of reasonable litigation expenses of competent counsel in state post-conviction proceedings.” /d.

§ 2261(a), (b) & (c). Texas does not yet meet these “opt-in” requirements. Carter v. Johnson,

110 F.3d 1098, 1104 (Sth Cir.), vacated on other grounds, 118 S.Ct. 409 (1997). Therefore, the

Court must look to the general standards of review under the AEDPA.

A federal court may not grant habeas relief with respect to any claim that was adjudicated

on the merits in a state court proceeding unless petitioner shows that the prior adjudication: (1)

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established federal law; or (2) resulted in a decision that was based on an unreasonable .

0002

determination of the facts in light of the evidence presented in the state court. 28 U.S.C. §

2254(d). A state court decision is not “contrary to clearly established federal law” unless a

different result was dictated by existing Supreme Court precedent. Drinkard v. Johnson, 97 F.3d

751, 768 (Sth Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997). A state fact finding is not

“unreasonable” unless the petitioner can rebut the finding by we and convincing evidence. 28

U.S.C. § 2254(e

This text is long and has been trimmed here. Open the source document for the complete record.

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.