Petition for Writ of Certiorari — Ortiz v. Texas

(\\) Supers Court, U.S.

rFiL egw

02118 9FEB 11 20083

No. _@PNSE OF THE CLERK

IN THE

Supreme Court of the GQnited States

October Term, 2002

RICARDO ORTIZ

Petitioner

Vv.

THE STATE OF TEXAS

Respondent

On Petition for Writ of Certiorari to

The Court of Criminal Appeals of Texas

PETITION FOR WRIT OF CERTIORARI

JAMES D. LUCAS

Counsel of Record

303 Texas Avenue, Suite 806

El Paso, Texas 79901

Tel. (915) 532-8811

Fax (915) 532-8807,

SBN #12658300

CAPITAL CASE

QUESTIONS PRESENTED FOR REVIEW

1. A Texas statute provides that a challenge for cause may be

made by the State for the reason that the juror has conscientious

scruples in regard to the infliction of the punishment of death

for crime, in a capital case, where the State is seeking the death

penalty. A death penalty defendant challenges the statute as

facially invalid on the asserted basis that several jurors were

excluded in violation of Witherspoon v. Illinois, 391 U.S. 510

(1968) 1nd its progeny. The State’s highest court refuses to

rule on the challenge after concluding that it narrowed the scope

of the statute in a 1996 decision. In this situation, is a defendant

foreclosed from challenging the statute as facially invalid under

Witherspoon and its progeny?

2. Defense counsel fails to object as the State successfully

challenges for cause 13 prospective jurors in a death penalty

casc solely because they have conscientious scruples with _

regard to the death penalty. This leaves only “death-qualified”

jurors on the venire panel. The State’s highest court rules that

this was possibly a legitimate trial strategy by defense counsel.

Does this ruling misapply the requirement of this Court that a

defense counsel’s trial strategy must be objectively reasonable?

il

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW. .......:..000:::0000

OU ATG occ ccscussscnvsssnscsosseccceccrsvocossessesesssreees i

TABLE OF CONTENTS. ....c.:-c..s:ssssscssssssssesssssssssvsssssecssses ii

TABLE OF CITED AUTHORITIES ...........:..00-00000s000000 iv, V

ia ccisussccunhcnutesovenseoveaversnusrs ]

BASIS FOR JURISDICTION. ...........:..sssssssescssssssssesesseecesee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............:ssscssssssesssseeseseesssseeees 1,2

STATEMENT OF THE CASE................0-.sscsssssssscsseessssssees 2

REASONS FOR GRANTING PETITION. .............00000000+ 17

SES EE oe ae a oar 27

INDEX TO APPENDICES

APPENDIX A - ORTIZ OPINION. ............c0:0000s000000e0= 1-42

APPENDIX B - ORDER DENYING MOTION

FOR REHEARING..............:c:sssssssssseseees 43

IV.

TABLE OF CITED AUTHORITIES

Federal Cases Page(s

Boos v. Barry, 485 U.S. 312,

Pe ee Fe re I sad cheh desnncns carevcnramsnate ceieateoediniils 22

Godfrey v. Georgia, 446 U.S. 420,

Pe es. Pe I fale ieee ieiisale nace aban itiabctasinbsbasnacane 20

Houston v. Hill, 482 U.S. 451,

Sr ee Ae Ee iri ciel etic onees 21, 22

Maynard v. Cartwright, 486 U.S. 356,

Pe ek. Se I aeirickaiisectnctsteleasedecctuccatacee awe 20

Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983)......23

Roe v. Flores-Ortega, 528 U.S. 470,

a aE: I I ice ih sti d nuda scicecdncedieacsicheitesbabnenccilonen 25

Stenberg v. Carhart, 530 U.S. 914,

Fe a a I ibcccrdcinwinssnent cpentenevnebiossascanitibaeyngnbavsinias’ 22

Strickland v. Washington, 466 U.S. 668,

DOO asics socheecseessnsivetesnseecdboinccees 25

Wainright v. Witt, 469 U.S. 412;

RGD Ge, By Gini seve scceasenciravecenns 15-16, 18-20, 23-24

Witherspoon v. Illinois et al., 391 U.S. 510,

SRR, TT FCC icrsisistasnsnnvnsens 14-15, 18-19, 21, 23-24, 26

te

Long v. State, 742 S.W.2d 302 (Tex.Crim.App. oo 16

Rabb v. State, 730 S.W.2d 751 (Tex.Crim. App. 1987)......... 16

Ramos v. State, 934 S.W.2d 358 (Tex.Crim.App. 1996)....... 15

Rose v. State, 752 S.W.2d 529, (Tex.Crim. App. 1988)......... 16

€

Statutes and Rules

TEX CODE CRIM. PROC. Art. 35.16(b)1......... 1, 14-19, 22-24

U.S. CONST. amend. V1.............:cccccsceseeeeeeeeeseeserseseeeees 2,14

U.S. CONST. amend. XIV, Section 1................::::eeee 2,14

l

OPINIONS BELOW

The opinion of the highest state court entered in the case

appears at Appendix A to this petition, and has been designated

for publication, but is not yet reported.

BASIS FOR JURISDICTION

The highest state court decided this case on September

25, 2002. A copy of that decision appears at Appendix A. A

timely motion for rehearing was thereafter denied on November

13, 2002. A copy of the order denying rehearing appears at

Appendix B. The jurisdiction of this Court to review the

judgment rendered in this case is invoked pursuant to 28 U.S.C.

Section 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article 35.16(b)1 of the Texas Code of Criminal

Procedure provides:

(b) A challenge for cause may be made by the State for

any of the following reasons:

(1) That the juror has conscientious scruples in regard

to the infliction of the punishment of death for crime,

in a capital case, where the State is seeking the death

penalty.

2

U.S. Constitution, Amendment VI, provides in pertinent

part as follows:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district where the crime shall have

been committed....

U.S. Constitution, Amendment XIV, Section 1, provides

in pertinent part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property without due process of

law...

STATEMENT OF THE CASE ~

During the voir dire stage of Petitioner’s death penalty

trial, the trial court informed the venire panel that he was going

to ask the prospective jurors “...some questions about [their]

convictions regarding the death penalty.” RR 3, 65. The tral

court then asked the members of the venire panel to place a

check mark by their “yes” or “no” answer to the following

question:

Do you have conscientious scruples in regard to the

infliction of death for a person convicted of capital

murder? Yes or no? If you have answered the

preceding question yes, come up to the bench now.

RR 3, 66

3

Those prospective jurors who checked “yes” in response to the

conscientious scruples question were thereafter brought up to

the bench individually, where the following exchange occurred

(RR 3, pp. 66-81):

1. Prospective Juror Reid (No. 38):

Def. Counsel: Mr. Reid.

Trial Court: Yes, sir.

Juror: In regards to the question you just

asked- —

Trial Court: Yes.

Juror:— about the death penalty, I checked on

the yes.

Trial Court: You have conscientious scruples

regarding —

Juror: Yes.

Trial Court: Anybody want to ask him any

questions? Take your seat, sir? State

challenge?

Prosecutor: Yes.

Trial Court: All right. Court grants the

challenge. Next person.

4

Prospective Juror Bonilla (No. 57):

Juror: 57, Elizabeth Bonilla. I think only God

has a right to take someone’s life.

Tnal Court: You have conscientious scruples

against the infliction of the death penalty in ail

cases? AnylLody want to ask questions?

Def. Counsel: No questions.

Prosecutor: No questions.

Trial Court: Take your seat, ma’am.

Prosecutor: Challenge.

Trial Court: Court grants the State’s

challenge.

Def. Counsel: Ms. Bonilla’s number was what?

Prosecutor: 57.

Trial Court: Next person.

Prospective Juror Berlit (No. 83):

Juror: Chris Berlit, B-E-R-L-I-T, number 83.

I do have reservations to the death penalty.

Trial Court: What do you mean by

“reservations”?

Juror: I’ve been born, raised and educated in

OE TO ye eT Ee

5

Europe, and I believe that an appropriate

punishment would be life in prison.

Trial Court: The question is not really that.

Do you believe the death penalty unjustified in

all cases?

Juror: Yes. Yes, sit

Trial Court: Questions?

Prosecutor: State challenges.

Trial Court: State’s challenge is granted.

Prospective Juror Reta (No. 127):

Juror: Number 127, Diana Reta.

Prosecutor: 127, Judge.

Juror: And I answered yes to conscientious

scruples in regard to the death penalty.

Trial Court: Is this a religious conviction or—

Juror: It’s just a moral, personal —

Trial Court: You’re opposed to the death

penalty in all cases?

Juror: Yes, sir.

Trial Court: Questions, State?

6

Prosecutor: No, Your Honor.

Trial Court: No, Your Honor.

Def. Counsel: No questions, Your Honor.

Trial Court: Next person.

Prosecutor: State is going to challenge that

~ juror —

Trial Court: Granted.

Prospective Juror Lopez (No. 132):

Juror: 132. Yvonne Lopez.

Trial Court: Ms. Lopez, what is your

statement to the Court?

Juror: I would have a problem with the death

penalty.

Trial Court: Anybody would have a problem

with it.

Juror: Personally, I would have a problem.

Yes, I’m a Catholic, and only God gives life,

and only God takes life away.

Trial Court: I’m just trying to tell you, it’s a

problem for anybody. But do you have

conscientious scruples against the death

penalty in —

Juror: Yes.

Trial Court: — any and all cases?

Juror: Most probably in all cases.

Trial Court: In all cases?

Juror: I’ve never been faced with it, but I

think I would have a problem.

Trial Court: It’s not a question of having a

problem. I’m not trying to —

Juror: I answered.

Trial Court: I’m not trying to contradict you.

Anybody that has any sensibility would have a

problem with the issue. The question is, are

you opposed to the death penalty in all cases,

regardless of what the facts might show?

Juror: Yes.

Trial Court: Questions?

Prosecutor: No questions.

Prosecutor: No.

Def. Counsel: No questions.

Trial Court: Take your seat. :

Def. Counsel: State challenges. Judge, State

8

challenged that last juror.

Trial Court: All right. Granted. I’ve

forgotten the name.

6. Prospective Juror Herrick (No. 123):

Juror: Jeffrey Herrick, 123.

Trial Court: Mr. Herrick, you have -- I’m not

going to put words in your mouth.

Juror: I’m opposed to the death penalty based

on my convictions as a Quaker.

Trial Court: Is that in any and all cases?

Juror: Yes.

Trial Court: Questions?

Prosecutor: I think he’d been previously

excused.

Prosecutor: No, he was not.

Juror: No, I just asked for permission to come

in late.

Trial Court: Have your seat, sir.

Prosecutor: Move to challenge him, Your

Honor.

Trial Court: Granted .

9

Prospective Juror Escamilla (No. 56):

Juror: Number 56, Robert Escamilla.

Trial Court: Yes, sir.

Juror: I don’t believe in the death penaity.

Trial Court: You don’t believe it’s justified in

any case?

Juror: No, sir.

Prosecutor: No questions.

Def. Counsel: No questions.

Prosecutor: He answered affirmatively?

Trial Court: He said he didn’t believe it was

justified in any case.

Prosecutor: We have no questions.

Prosecutor: State challenges.

Trial Court: Granted.

Prospective Juror Cortinas (No. 74):

Juror: Dolores Cortinas, juror 97. Sir, I do

not believe in the death penalty.

Trial Court: You do not believe in the death

penalty for any case whatsoever?

10

Juror: No, sir.

Prosecutor: No questions, Your Honor.

Trial Court: You may take a seat.

Prosecutor: State challenges.

Trial Court: All right. Granted.

5. Prospective Juror Estala (No. 11).

Juror: Andre Estala, number 11. And I do

have a conscientious scruple about this.

Trial Court: What is your statement about the

death penalty?

Juror: I don’t believe in it, sir, in any degree.

Tnal Court: In any kind of case whatsoever?

Prosecutor: That’s correct.

Trial Court: You believe it’s never justified?

Juror: Never justified?

Prosecutor: No questions, Your Honor.

Def. Counsel: No questions.

Trial Court: You may return:to your seat.

Prosecutor: State moves to challenge.

10.

11.

11 ‘

Trial Court: Granted.

Prospective Juror Portillo (No. 154).

Juror: Jorge Portillo, 154.

Trial Court: You are Jorge Portillo. What is

your statement on the death penalty?

Juror: I don’t believe it’s right.

Trial Court: Never justified under any

circumstances?

Juror: Two wrongs do not make a right, sir.

Prosecutor: No questions.

Trial Court: You may take a seat.

Prosecutor: State challenges.

Trial Court: All nght.

Prosecutor: Is that granted — I’m sorry on

the last juror.

Trial Court: Granted.

Prospective Juror Gallegos (No. 112):

Juror: Rose Gallegos, number 112.

Trial Court: Make your statement as to the

death penalty, Mrs. Gallegos.

Juror: As a practicing Catholic, I do not

believe in the death penalty.

Trial Court: You don’t believe it is justified in

any case whatsoever?

Juror: No, sir.

Prosecutor: No questions.

Def: Counsel: No questions.

Trial Court: Take your seat, please, ma’am.

Prosecutor: State will challenge.

Trial Court: You do challenge?

Prosecutor: Yes.

Trial Court: Granted. Come up please,

ma’am.

Prospective Juror Palomo (No. 142):

Juror: Number 142. °

Trial Court: You are Ms. Palomo.

Juror: Yes. I nee the death penalty. I

believe that the Lord gives us life, and he’s the

only one that’s supposed to --

Trial Court: You’re opposed to the death

13

penalty, no matter what the circumstances?

Juror: Yes. Yes.

Prosecutor: No questions.

Def. Counsel: No questions, Your Honor.

Trial Court: Take your seat, please, ma’am.

Prosecutor: State challenges this juror.

Trial Court: Granted.

Prospective Juror Caballero (No. 108):

Juror: Adriana Caballero, 108

Trial Court: Make your statement as to what

— make your statement. What is your belief

about the death penalty?

Juror: I am strongly opposed to the death

penalty.

Trial Court: You think that the death penalty

should never be inflicted in any case

whatsoever, regardless of the facts?

Juror: Yes.

Prosecutor: No questions.

Def. Counsel: No questions.

14

Tnal Court: You may take your seat.

Prosecutor: State would challenge, Your

Honor.

Tnial Court: Granted.

On direct appeal to the Texas Court of Criminal

Appeals, Petitioner asserted that the trial court had deprived

him of a fair and impartial jury, as guaranteed him by the Sixth

and Fourteenth Amendments to the United States Constitution,

by striking several prospective jurors from the venire panel

pursuant to Article 35.16(b)1 of the Texas Code of Criminal

Procedure, which Petitioner challenged as unconstitutional on

its face. Citing Witherspoon v. Illinois et al., 391 U.S. 510, 88

S.Ct. 1770 (1968) and its progeny, Petitioner contended that

Article 35.16(b)1 deprived him of a fair trial because it enabled

the State to challenge for cause the above-listed jurors solely

because they had conscientious scruples in regard to the

infliction of death for a capital offense. Petitioner based his

analysis on the wording of Article 35.16(b)1, which states:

(b) A challenge for cause may be made by the State for

any of the following reasons: .

(1) That the juror has conscientious scruples in regard

to the infliction of the punishment of death for crime,

in a capital case, where the State is seeking the death

penalty.

15

Petitioner contended that Article 35.16(b)1 was facially

unconstitutional because its wording was essentially identical to

the Illinois statute declared unconstitutional in Witherspoon,

supra, which provided: “In trials for murder it shall be a cause

for challenge of any juror who shall, on being examined, state

that he has conscientious scruples against capital punishment, or

that he is opposed to the same.” Witherspoon, 391 U.S. at 512;

88 S.Ct. at 1772.

The Texas Court of Criminal Appeals rejected

Petitioner’s second ground of error, stating:

Ortiz initially claims that Article 35.16 is

unconstitutional on its face, in violation of Wainright

v. Witt, and any challenges granted_pursuant to that

statute must be deemed invalid. However, we have

already held that Article 35.16 “is a ground for

disqualification only to the extent constitutionally

permitted by Witt.” Having already narrowed the

scope of the statute to what is constitutionally

permissible, we perceive no further basis for

complaint. See Opinion, App. A, pp.16-17(footnote

numbering omitted).

To support its holding, the Court of Criminal Appeals

cited its earlier decision in Ramos v. State, 934 S.W.2d 358

(Tex.Crim.App. 1996). Jd., at fn. 15. In Ramos, the appellant

attacked Wainright v. Witt, supra, as unconstitutional and

complained of the trial court’s exclusion for cause of five

16

prospective jurors opposed to the death penalty. In the course

of overruling the appellant’s constitutional challenge to Witt, the

Court of Criminal Appeals noted: “The Texas statute [Article

35.16(b)1] is a ground for disqualification only to the extent

constitutionally permitted by Witt.” Id., at 366.

Petitioner did not challenge the constitutionality of

Article 35.16(b)1 until the filing of his first appeal to the Court

of Criminal Appeals. In his brief, Petitioner cited the following

decisions of the Texas Court of Criminal Appeals as authorizing

him to raise for the first time on appeal a facial challenge to the

constitutionality of Article 35.16(b)1: Rose v. State, 752 S.W.2d

529 (Tex.Crim.App.1988), Long v. State, 742 S.W.2d 302

(Tex.Crim.App.1987) and Rabb v. State, 730 S.W.2d 751

(Tex.Crim.App.1987). The Court of Criminal Appeals did not

dispute Petitioner’s authority on this point or suggest that error

had been waived. Instead, it held (as noted above) that because

it had previously narrowed the scope of Article 35.16(b)1,

nothing was presented for review.

The Court of Criminal Appeals further rejected

Petitioner’s assertion that his trial counsel had rendered

ineffective assistance by failing to object to the exclusion of those

prospective jurors who had check marked “yes” to the question

17

question of whether they had conscientious scruples in regard

to the infliction of the death penalty in a capital case. The court

reasoned that where trial “counsel’s reasons for his conduct do

not appear in the record, and there is at least the possibility that

the conduct could have been legitimate trial strategy, it would

defer to trial counsel’s decisions and deny relief on an

ineffective assistance claim on direct appeal.” See Opinion,

App. A, pp. 17-18. After concluding that trial counsel’s reasons

for not objecting to these prospective jurors (13 of them) did

“not appear in the record,” it then determined that Petitioner’s

trial counsel’s failure to object to the exclusion of these

prospective jurors could have been based on legitimate reasons.

See Opinion, App. A, at pp. 17-18.

REASONS FOR GRANTING PETITION

The Texas Court of Criminal Appeals’ refusal to

consider Petitioner’s challenge to the constitutionality of Article

35.16(b)1 of the Code of Criminal Appeals irreconcilably

conflicts with numerous decisions of this Court. Understanding

the nature of the conflict first requires identifying the effect of

the Court of Criminal Appeals’ holding. The Court of Criminal

Appeals did not dispute Petitioner’s claim that Article 35.16(b)1

was unconstitutionally applied in his case or that several

18

prospective jurors were excused from the venire panel solely

because they admitted to having conscientious scruples in

regard to the infliction of death for a person convicted of a

capital offense. Nevertheless, it held that Petitioner had

presented nothing for review because it had narrowed the scope

of the statute by declaring in a previous decision that Article

35.16(b)1 was “a ground for disqualification only to the extent

constitutionally permitted by Witt.”

The Court of Criminal Appeals accordingly made no

attempt to determine whether Article 35.16(b)1 had been

properly applied in Petitioner’s case. If it had, it would have

concluded that the trial court had misapplied the statute by

allowing the State to challenge for cause several prospective

jurors solely because they had conscientious scruples in regard

to the infliction of death for a person convicted of a capital

offense. The trial court’s decision to apply Article 35.16(b)1 to

the letter was therefore deemed irrelevant.

Granting review of this petition is necessary since

Article 35.16(b)1 has been applied in a manner which wholly

disregards this Court’s decision in Witherspoon v. Illinois et al,

391 U.S. 510, 88 S.Ct. 1770 (1968), a case directly on point.

19

In Witherspoon, this Court declared unconstitutional a statute

essentially identical to Article 35.16(b)1 because it excluded

“veniremen for cause simply because they voiced general

objections to the death penalty or expressed conscientious or

religious scruples against its infliction.” /d., 391 U.S. at 521-

522; 88 S.Ct. at 1776-1777. The Court of Criminal Appeals’

analysis also disregards this Court’s decision in Wainright v.

Witt, 469 U.S. 412; 105 S. Ct. 844 (1985), which held that a

prospective juror could only be excluded where that prospective

juror’s views on capital punishment would “prevent or

substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.” Jd., 469 U.S. at

424; 105 S.Ct. at 852.

The conflict created between the Court of Criminal

Appeals’ decision and this Court’s decisions arises from the

purported narrowing construction the Court of Criminal

Appeals says it has applied to Article 35. 16(b)1. The problem

with such an analysis is evident: Despite what it says, the Court

of Criminal Appeals did not apply a narrowing construction to

Article 35.16(b)1 in Petitioner’s case. When faced with un-

refuted evidence that the trial court had excluded several

prospective jurors under Article 35.16(b)1 solely because they

20

had conscientious scruples with regard to application of the

death penalty, the Court of Criminal Appeals did nothing to

correct the error. Prospective jurors like Reid and Bonilla (the

first two jurors called up) were summarily challenged and

excluded from the venire panel merely because they gave an

affirmative response to the conscientious scruples question

submitted to them by the trial court. Other prospective jurors

(such as Berlit, Herrick, and Escamilla) were excluded solely

because they were in general opposed to the death penalty, not

because their views prevented or substantially impaired them

from performing their duties as jurors in accordance with the

jurors’ instructions and oath (as required by Wainright v. Witt,

supra.) Accordingly, no attempt was made in Petitioner’s case

by either the trial court or the Court of Criminal Appeals to

apply a narrowing construction to Article 35.16(b)1, although

the Court of Criminal Appeals claims otherwise.

The situation resembles that which occurred in Godfrey

v. Georgia, 446 U.S. 420, 100 S.Ct. 1759 (1980) and Maynard

v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853 (1988). In both

cases, this Court rejected claims by Georgia and Oklahoma

courts that they had applied a narrowing construction to the

aggravating circumstance portion of the death penalty statutes

21

under scrutiny in these cases once it realized that no such

narrowing construction had in fact been applied to these

statutes.

The consequence of allowing the Court of Criminal

Appeals’ holding to go undisturbed is easy to see. At the state

court level, Article 35.16(b)1 will be forever insulated from

federal « onstitutional challenge because of the purported

narrowing construction the Court of Criminal Appeals claims to

have given the statute in its 1996 decision. Henceforth, any

federal constitutional challenge to Article 35.16(b) will be

rejected, irrespective of whether Witherspoon error has

occurred, simply because the Court of Criminal Appeals says it

has given the statute a narrowing construction. Not only does

such a holding undermine Witherspoon and Witt, supra, but it

purports to place Article 35.16(b)l, a statute admittedly

unconstitutional on its face, completely beyond the reach of the

federal courts.

A second problem with the Court of Criminal Appeals’

narrowing construction analysis is that Article 35.16(b)1 is not

susceptible to a narrowing construction. In Houston v. Hill,

482 U.S. 451, 107 S.Ct. 2502 (1987) and several other

22

decisions, this Court has recognized that federal courts should

not adopt a narrowing construction to a state statute unless the

statute is “fairly subject to an interpretation which will render

unnecessary or substantially modify the federal constitutional

question.” Jd., 482 U.S. 468; 107 S.Ct. at 2513. See also

Stenberg v. Carhart, 530 U.S. 914, at 944, 120 S.Ct. 2597, at

2616 (2000)(refusing to adopt narrowing construction to a state

statute “unless such a construction is reasonable and readily

apparent”); and Boos v. Barry, 485 U.S. 312, at 330, 108 S.Ct.

1157, at 1168-1169 (1988)(applying same rule).

Stated another way, where “the naked question,

uncomplicated by [ambiguous language], is whether [a state

statute] on its face is unconstitutional,” federal courts should

not hesitate to exercise properly invoked jurisdiction. See

Houston v. Hill, 482 U.S. at 468-470; 107 S.Ct. at 2513-2514.

Therefore, just as there was no ambiguity in the ordinance

declared unconstitutional in Hill, there is no ambiguity or

uncertainty regarding the meaning of Article 35.16(b)1 of the

Texas Code of Criminal Procedure. The statute unequivocally

states that any prospective juror who has conscientious scruples

in regard to the infliction of the punishment of death in a capital

case is subject to challenge for cause. No narrowing

23

construction can fairly be applied since Article 35.16(b)1 allows

for no exception to the exclusion of prospective jurors who

have conscientious scruples in regard to the infliction of death

as a penalty in a capital case. By its plain meaning and express

language, the statute irreconcilably conflicts with Witherspoon

and Witt and should be declared unconstitutional on its face. In

this regard, it bears noting that the State of Texas has failed to

assert an adequate and independent state ground so as to

preclude federal review of Petitioner’s claim that Article

35.16(b)1 is unconstitutional. See Michigan v. Long, 463 U.S.

1032, 103 S.Ct. 3469 (1983). Instead, the Court of Criminal

Appeals’ decision rests solely upon federal law.

Granting review of this petition is also necessary for

another reason. The Court of Criminal Appeals’ holding that it

may have been a legitimate trial strategy for Petitioner’s trial

counsel to fail to object when the trial court struck (at the

State’s request) 13 prospective jurors solely because of the way

these jurors answered the conscientious scruples question

conflicts with important decisions of this Court. The flaw in the

Court of Criminal Appeals’ analysis can only be understood

within the context of the voir dire record. Every prospective

juror in Petitioner’s case who checked “yes” to the question of

24

whether he or she had conscientious scruples in regard to the

infliction of death for a person convicted of a capital offense

was challenged by the State and struck for cause pursuant to

Article 35.16(b)1. The pattern was the same with each juror.

Neither counsel for the State nor Petitioner’s trial counsel

attempted to pick or choose among those jurors who answered

the conscientious scruples question affirmatively.

One-by-one, every prospective juror who stated that he

or she had conscientious scruples was called up to the bench

and struck for cause (at the request of the State) without

Petitioner’s trial counsel lodging the necessary Witherspoon

objection. The reason Petitioner’s trial counsel failed to object

is apparent: They clearly were unfamiliar with the decisions of

this Court in Witherspoon and Witt, and therefore did not realize

that Article 35.16(b)1 was unconstitutional on its face. The

reason the State’s prosecutors objected to those prospective

jurors who had conscientious scruples in regard to the infliction

of death for a capital offense was also apparent. They realized

that by excluding every prospective juror on the venire panel

who had conscientious scruples in regard to the infliction of the

death penalty, the State would be assured of a death penalty if

Petitioner were convicted.

25

The Court of Criminal Appeals’ determination that it

might have been a legitimate trial strategy for Petitioner’s trial

counsel to sit idly by while each of these prospective jurors were

called up, challenged by the State, and then struck for cause is

disingenuous at best. More fundamentally, this holding

disregards the Court’s ruling in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052 (1984), which defined the test used

today for ascertaining whether effective assistance of counsel

has been rendered. In Strickland, this Court concluded that in

order to establish that a defendant’s attorney has rendered

ineffective assistance of counsel, a showing must be made that

counsel’s representation “fell below an objective standard of

reasonableness.” /d., 446 at 687-688; 104 S.Ct. at 2064. See

also Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029

(2000)(where this Court applied the same “objective standard

of reasonableness” test in determining whether effective

assistance of counsel had been rendered).

These and other decisions establish that the Texas Court

of Criminal Appeals erred in applying a subjective standard to

Petitioner’s ineffective assistance claim. By any objective

measure, the decision of Petitioner’s trial counsel to allow these

prospective jurors to be excluded for cause solely because they

26

had conscientious scruples in regard to the infliction of the death

penalty must be viewed as deficient. No competent counsel

would have permitted the State to remove every prospective

juror with conscientious scruples, so that the only jurors left on

the venire panel would be those who possessed the unwavering

view that imposition of a death sentence was necessary in the

event Petitioner’s guilt were proven.

The Court of Criminal Appeals’ refusal to view

Petitioner’s ineffective assistance claim objectively, combined

with its refusal to entertain Petitioner’s Sixth and Fourteenth

Amendment challenges to Article 35.16(b)1, has dealt a “death

blow” to Witherspoon in Texas. It is now arguably impossible

for any death penalty defendant in Texas to object to a trial

court’s decision to exclude a prospective juror from a venire

panel solely because that juror has conscientious scruples in

regard to the infliction of death for a capital offense.

Witherspoon error is now considered a legitimate trial strategy

by the Texas Court of Criminal Appeals, and the misapplication

of Article 35.16(b)1 is said to present nothing for Texas courts

to review, even if application of the statute results in obvious

and plain Witherspoon error.

27

CONCLUSION

For the reasons outlined above, it is respectfully requested

that this Petition for Writ of Certiorari be granted.

Respectfully submitted,

/s/ James D. Lucas

James D. Lucas

Counsel of Record for Petitioner

303 Texas Avenue, Suite 806

El Paso, Texas 79901

Tel. (915) 532-8811

INDEX TO APPENDICES

APPENDIX A - ORTIZ OPINION. ...000000....cccccccccccceceees 1-42

APPENDIX B - ORDER DENYING MOTION

PUR BRRINUMMUIE OOD... .cccsccsecssncssesseseneerenes 43

la

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.73,692

RICARDO ORTIZ, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM EL PASO COUNTY

Keasier, J., delivered the unanimous opinion of the

Court. Keller, P.J., and Womack, J., filed concurring

opinions.

OPINION

Ricardo Ortiz was convicted of capital murder by

committing murder in the course of retaliation or attempted

retaliation.’ Pursuant to the jury’s answers to the special issues

set forth in Texas Code of Criminal Procedure, Articles 37.071

§§2(b) and 2(e),” the trial judge sentenced appellant to death.’

' Tex. PEN. CODE §19.03(a)(2).

2 Unless otherwise indicated all future references to Articles

(continued...)

2a

Direct appeal to this Court is automatic.’ Ortiz raises thirteen

points of error, contending that the trial judge erred in various

respects. We find his arguments meritless and affirm the trial

court’s judgment.

L SUFFICIENCY OF THE EVIDENCE

A. The evidence

1. The autopsy

On August 17, 1997, Gerardo Garcia died in the El Paso

County Jail of a heroin overdose. Dr. Juan Contin, the Chief

Medical Examiner of El Paso County, conducted the autopsy.

Contin found that Garcia died of “acute jarcotism,” caused by

morphine (a byproduct of heroin) found in his body. The

concentration of morphine in Garcia’s blood was 523 ng/ml —

a level that was three times higher than the average when

compared to 76 deaths due to acute narcotism that had been

investigated by Contin’s office from January 1995 to September

1997. Contin found a single fresh needle mark on one of

(...continued)

refer to the Code of Criminal Procedure.

3 Art. 37.071, §2(g).

+ Art. 37.071, §2(h).

3a

Garcia’s arms but observed no needle track marks. In Contin’s

opinion, the absence of track marks meant that Garcia was not

a heroin addict. A sheriff's detective found a syringe in the

section of the jail in which Garcia was confined.

2. Mario Hernandez

At trial, two witnesses testified that the heroin overdose

was involuntary — forced upon Garcia by Ortiz because Ortiz

believed that Garcia had revealed Ortiz’s role in some bank

robberies. Mario Hernandez was in the same section of the jail

as Garcia when he died. He testified that this particular section

was known as the “Texas Syndicate tank” because it was set

aside specifically to contain those associated with the Texas

Syndicate. Mario was not a member of the Texas Syndicate but

was placed in the tank because his cousin was a member. Mario

had not known Garcia or Ortiz before meeting them in the

Texas Syndicate tank. According to Mario, Ortiz was the “tank

boss,” meaning he exercised de facto authority over the other

inmates in the tank because of his status with the Texas

Syndicate. Ortiz controlled what inmates requested from the

jail commissary and he dealt with jailers on behalf of the other

inmates.

4a

When Garcia was brought into the tank, Mario saw

Ortiz “freak.” Mario overheard a conversation between Ortiz

and Garcia in which Ortiz expressed great concern that Garcia

had been caught for some bank robberies. Ortiz and Garcia

argued about whether Garcia’s capture was the result of being

“snitched off’ by Garcia’s girlfriend or Ortiz’s wife. Mario also

overheard more than ten phone calls made by Ortiz in which

Ortiz attempted to sell a trailer to get money to purchase heroin.

Ortiz remarked that he wanted to bring heroin into the jail.

Ortiz later succeeded in procuring heroin during visiting hours.

Mario knew when Ortiz had obtained the heroin because Ortiz

and another inmate were high on heroin when they returned

from the visitor’s booth. As a heroin addict, Mario could

recognize when other people were high on the drug.

On August 17, Ortiz and several other inmates called

Garcia into one of the individual cells within the tank — cell

number five. Mario explained that he was seated at a table in

the tank’s day-room about five feet away from the doorway of

that cell and could see inside. He then described seeing the

following sequence of events: Garcia was sitting on a bunk bed

in cell number five. Ortiz handed another inmate some heroin.

This other inmate dissolved the heroin into water and placed it

Sa

into a syringe. The syringe containing heroin was handed to

Ortiz. Ortiz then injected the heroin into Garcia, who did not

look like he wanted to be injected. Almost immediately, Garcia

began shaking from what appeared to Mario to be

“overdosing.”

Ortiz noticed that Mario and another inmate not

involved in the encounter had witnessed the events. Ortiz

brought them heroin, and they injected themselves with it. He

told them that Garcia had overdosed, that Garcia was stingy

with the heroin and did it all, and that they were not to say

anything about the incident.

On cross-examination, Mario admitted that he did not

actually see the heroin exchange hands before it was “cooked.”

Defense counsel showed Mario a sketch of the floor plan of the

. tank. This sketch was prepared by a detective several days after

the murder. Defense counsel asserted that the sketch showed

that Mario was not really seated at the day-room table closest

to cell number five but was actually seated at a table further

away. However, Mario explained that he did not draw the

sketch himself, and that, while he signed it, the sketch was

inaccurate in some respects, including placing Ortiz and Garcia

in the wrong locations.

6a

On redirect, Mario explained that he could not really see

the sketch while the detectives were drawing it, and he

reiterated that he had an unobstructed view into cell number five

from his seat at the day-room table. Finally, Mario testified that

a photograph admitted as State’s Exhibit 14 fairly and

accurately depicted the view he had into cell number five; that

photograph shows an unobstructed view into the cell.

3. Hector Hernandez

Hector Hernandez testified that he was not a member of

the Syndicate but was a prospect Ortiz was trying to bring into

the organization. Hector testified that he was in the Syndicate

tank at the time of the incident in question and that Ortiz ran the

tank. Hector heard Ortiz say that Garcia had snitched him out

and was going to have to die. Initially, Ortiz planned to stab

Garcia but later decided to overdose the victim ins*ead, to make

t look like a suicide. Ortiz told Hector that some heroin had

been obtained through a visit, and Ortiz planned to use three

“dimes” of heroin to kill Garcia. Three days before Garcia died,

Ortiz said he was going to kill Garcia. Although Hector was

not a heroin user, he used heroin the night of the murder

because Ortiz told him to. In addition, Ortiz told Hector to lie

about the incident by saying the heroin belonged to Garcia.

7a

Hector also testified that he was afraid of Ortiz, that he knew

both Garcia and Ortiz, and that Garcia was not a heroin user.

On cross-examination, Hector testified that Garcia

indicated several times that he wanted to commit suicide

because of the crimes he committed. Hector also testified that

he had a deal with the State to testify but was told to say there

was no deal. On redirect, Hector testified that no one told him

that he had to testify in exchange for not being arrested. He

further testified that he would be killed if he were incarcerated

and that he testified earlier to having a deal because he was

frightened of Ortiz. Hector also testified that his pending

charge was due to an attempt to bring drugs into jail on Ortiz’s

orders.

4. Law enforcement witnesses

Louie Carreon, a detective with the El] Paso Police

Department, testified that Ortiz offered to give information on

a bank robbery in exchange for help regarding a parole

revocation warrant.

Thomas Lott, a special agent for the FBI, testified that

an ex-girlfriend of Garcia told the police that she believed that

Garcia was involved in some bank robberies, that Garcia and

Ortiz had counted money in her living room, and that Garcia

8a

had sold a vehicle to Ortiz. Law enforcement agents picked up

Garcia, and he was identified by bank tellers in a photo lineup.

While Garcia was being detained at the police station, Ortiz was

brought near the area in which Garcia was located so that he

could observe Garcia with law enforcement agents and be led

to believe that Garcia was talking to the police. Special Agent

Lott showed Ortiz a document indicating that Ortiz was a

witness against Garcia and indicated that Garcia would know

this. In reality, however, Garcia never cooperated with the

authorities.

James Nance, a sergeant with the El Paso County

Sheriff's Department, testified as an expert on prison gangs.

Nance testified that Ortiz was the highest ranking member of

the Texas Syndicate in El Paso that he was aware of. Given his

high rank, Ortiz would automatically become a tank boss of any

Texas Syndicate section, and he could even be able to order the

death of someone in the tank.

5. Defense witnesses

The defense presented some testimony about Garcia’s

desire to commit suicide. Yvonne Chavira, a former girlfriend

9a

of Garcia,’ testified that Garcia said he would kill himself if he

were placed in jail again. During cross-examination, Chavira

~ admitted that she had previously told lies to the authorities

about Garcia. Doctor John Buscemi read a notation in a jail

medical record that indicated Garcia felt suicidal at age 15.

Alino Hernandez, a detention division commander for the E]

Paso Sheriff's Department, testified that a 1990 screening form

contained a “yes” answer to the question of whether Garcia had

ever attempted or seriously considered committing suicide.

However, a 1993 form said “no,” a January 1994 form had “no”

checked but “yes” circled, an August 1994 form had “no”

circled accompanied with a question mark, and the latest form,

in 1997, simply had “no” checked.

Finally, the defense attempted to impeach Hector’s

testimony through the testimony of his attorney, Donna Snyder.

Snyder testified that Hector told her he had a deal with the State

to “have a clean record and have a chance at a new life.” But

he expressed concern because it was his understanding that, if

asked about it on the stand, he should testify that there was no

* Some testimony by other trial witnesses indicates that she

is the same ex-girlfriend that reported Garcia to the police, but no

testimony was elicited from her concerning her report.

10a

deal. On cross-examination, the prosecutor showed Snyder a

document filed in the clerk’s office. This document stated that

Hector would not be arrested and jailed for the drug possession

case so long as he was a potential witness against Ortiz. The

document also said that Hector was being housed as an out-of-

state witness during the pendency of the trial, after which he

would be returned to his originating state where his probation

would resume. Snyder testified that the document did not seem

consistent with what Hector had told her.

B. Legal sufficiency — retaliation — “prospective witness”

In his fourth point of error, Ortiz claims the evidence is

legally insufficient because the State failed to prove that Garcia

was a prospective witness. He argues that the State did not

establish that Garcia was likely to be a witness for the State.

We disagree because the statute does not require that a person’s

testimony be “likely” in order for that person to be a

prospective witness. On the contrary, we have held that a

“prospective witness” is any “person who may testify in an

official proceeding.”* Formal proceedings need not be

6 Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App.

1993).

lla

initiated.”’ Any person who is involved in an offense with a

defendant, who sees the defendant committing an offense, or

who hears the defendant discuss committing an offense is a

“prospective witness” in the prosecution of that defendant

because he “may” testify.

Ortiz complains that this interpretation changes the

statute from “prospective witness” to “potential witness.” He

explains that the word “prospective” means “likely to become”

whereas “potential” means “something that can develop.” But

“prospective” is also defined as pertaining to a prospect, and

“prospect” as a “possibility.”* While “prospective” can mean

something different than “potential,” it can also be synonymous

with “potential.” The Legislature’s decision to use the word

“prospective” does not prevent the statute from applying to

situations in which “prospective” becomes synonymous with

“potential.”

Ortiz also argues that Garcia was not a prospective

witness because he had a Fifth Amendment right to remain silent

-_

* WEBSTER’S 3° NEW INTERNATIONAL DICTIONARY 1821

(1966).

12a

and there is no evidence that the State offered him immunity for

his testimony. But whether a person will eventually testify does

not affect whether he is, before trial, a prospective witness. It

is impossible to know, until the moment of trial, who will

actually testify ina case. A prosecutor may engage in extensive

meetings with a witness with the intention of calling him at trial,

only to change his mind at the last minute. On the other hand,

a prosecutor may believe initially that a witness has nothing to

offer his case, but decide at the last minute to use his testimony.

And, many times, the prosecutor himself will not know whether

any given person will be available at the time of trial or be

willing to testify. The phrase “prospective witness”

encompasses all of these possibilities.

Finally, Ortiz argues that our conclusion nullifies

subsection (a)(2) of § 36.06 because anybody found guilty

under (a)(1) would necessarily be guilty under (a)(2).

Subsection (a)(1) of § 36.06 prohibits harming or threatening to

harm another in retaliation for his service as a public servant,

witness, prospective witness, or informant. Subsection (a)(2)

prohibits harming or threatening to harm another to prevent or

delay his service as a public servant, witness, prospective

witness, or informant. Ortiz claims that under our

13a

interpretation, “[t]here would be no point to even enact” (a)(2)

because anyone who could be prosecuted under (a)(2) could

also be prosecuted under (a)(1).

We disagree because the statutory overlap which Ortiz

recognizes exists regardless of whether “prospective” is defined

as “likely” or “may.” Moreover, it exists only with regard to the

phrase “prospective witness” and not public servant, witness, or

informant —'the other options in the statute. In interpreting

statutes, we seek to avoid redundancies,’ but we also endeavor

to give effect to the whole statute, including each word and

phrase.'® And the mere fact that a defendant can be prosecuted

under two different subsections of a statute does not necessarily

“nullify” either section of the statute, as Ortiz claims.

We conclude that the evidence was sufficient for a

rational trier of fact to conclude that Garcia was a “prospective

witness” and that Ortiz harmed him “in retaliation for or on

account of” this fact. He was a prospective witness because he

° Badgett v. State, 42 S.W.3d 136, 139 (Tex. Crim. App.

2001).

"0 Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim. App.

1999).

l4a

had been involved in a robbery with Ortiz and had already been

identified by one of the robbery victims. Certainly, Garcia

possessed information which could have been relevant at Ortiz’s

trial such that Garcia may have testified at that tnal. In

addition, a rational trier of fact could conclude from this

evidence that Ortiz acted in “retaliation” because Ortiz knew

that Garcia had been involved in the robbery with him. A

rational jury could conclude that Ortiz harmed Garcia because

he might testify against him. We overrule Ortiz’s fourth point of

error.

C. Factual sufficiency — murder

In point of error eleven, Ortiz contends that the evidence

is factually insufficient to prove that he murdered Garcia. In

conducting a factual sufficiency review, we view the evidence

in a neutral light and set aside the verdict only if the evidence

supporting guilt is so obviously weak, or the contrary evidence

so overwhelmingly outweighs the supporting evidence, as to

render the conviction clearly wrong and manifestly unjust."’

While a reviewing court has some authority to disregard

11 Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.

2000).

1Sa

evidence that supports the verdict, it must be appropriately

deferential so as to avoid substituting its own judgment for that

of the fact finder.'* The reviewing court should not

substantially intrude upon the jury's role as the sole judge of the

weight and credibility of witness testimony."

Ortiz contends that the evidence is factually insufficient

because Mario’s testimony that he saw Ortiz inject Garcia with

heroin is not credible and should be disregarded. In support of

this contention, Ortiz argues that a sketch of the jail shows that

Mario could not have had an unobstructed view of the crime.

He also points out that Mario admitted to not seeing everything

that occurred in cell number five during the incident in question.

Finally, Ortiz contends that Mario’s credibility is undermined by

his extensive criminal history and admitted heroin addiction.

As discussed above, Mario testified that the jail sketch

was inaccurate in some respects. And while he admitted that he

did not see the heroin exchange hands before it was cooked, he

maintained that he saw the heroin being cooked, saw the syringe

'2 Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App.

2000), cert. denied, 532 U.S. 944 (2001).

13 Id

l6a

being passed to Ortiz, and saw Ortiz inject Garcia with the

contents. Although Mario had a criminal history and was a

heroin addict, his credibility was a matter for the jury to decide.

After reviewing the evidence in a neutral light, we find that the

evidence in support of the conviction is not so weak as to

render the conviction clearly wrong and manifestly unjust.

Point of error eleven is overruled.

I. VOIR DIRE

In points of error two, three, nine, ten, and thirteen,

Ortiz complains about the trial court’s granting of State's

challenges for cause against prospective jurors who had

conscientious scruples about the death penalty. Ortiz initially

claims that Article 35.16 is unconstitutional on its face, in

violation of Wainwright v. Witt,“ and any challenges granted

pursuant to that statute must be deemed invalid. However, we

have already held that Article 35.16 “is a ground for

disqualification only to the extent constitutionally permitted bv

Witt.”’’ Having already narrowed the scope of the statute to

14 469 U.S. 412 (1985).

1S Ramos v. State, 934 S.W.2d 358, 366 (Tex. Crim. App.

(continued...)

17a

what is constitutionally permissible, we perceive no further basis

for complaint.

Ortiz next contends that a number of jurors were

excused in violation of Witt. With one exception — the subject

of point of error three — Ortiz did not object to the trial court’s

actions in granting the State’s challenges. A party must object

to the granting of a challenge for cause before he can complain

of that action on appeal.'* Because Ortiz failed to object, his

complaints were not preserved with respect to all the challenges

except for the complaint raised in point of error three, which we

shall discuss below.

Ortiz also argues that counsel’s failure to object in these

instances constitutes ineffective assistance. If counsel’s reasons

for his conduct do not appear in the record and there is at least

the possibility that the conduct could have been legitimate trial

strategy, we will defer to counsel’s decisions and deny relief on

(...continued)

1996).

'6 Ladd v. State, 3 S.W.2d 547, 562 (Tex. Crim. App. 1999),

cert. denied, 529 U.S. 1070 (2000); Purtell v. State, 761 S.W.2d 360,

365 (Tex. Crim. App. 1988), cert. denied, 490 U.S. 1059 (1989).

18a

an ineffective assistance claim on direct appeal.'’ Counsel’s

reasons for failing to object do not appear in the direct appeal

record. And it is possible for counsel to have legitimate reasons

for declining to object to a trial court’s granting of a State’s

challenge for cause.'* Accordingly, we deny relief on Ortiz’s

ineffective assistance claims. Points of error two, nine, ten, and

thirteen are overruled.

We now turn to point of error three, in which an

objection was made. Ortiz claims that venire member Deporto

was excused in violation of Witt. During general voir dire, the

trial court addressed the subject of conscientious scruples

against the death penalty, eventually asking jurors who had such

scruples to approach the bench:.

I am going to ask you some questions about

your convictions regarding the death penalty.

Be assured that I am not now assuming that you

will find the defendant guilty of capital murder

or of any other crime in this case. Nevertheless,

it is necessary to learn your state of mind about

'7 Thompson v. State, 9 S.W.2d 808, 813-814 (Tex. Crim.

App. 1999).

'8 See Butler v. State, 872 S.W.2d 227, 242 (Tex. Crim.

App. 1994), cert. denied, 513 U.S. 1157 (1995).

19a

capital punishment in general, to determine

whether you have an open mind as regards what

might be a just and proper sentence in a Capital

case if the defendant in that case is found guilty

as charged.

So I am asking about your state of mind

regarding capital murder in general. I am not

asking in this next question what you think

would be a just penalty in this case or any

particular case. I’m not at this time even asking

you about your opinion as regards the death

penalty in a retaliation capital murder case. And

I am most especially not asking what you might

think would be a just verdict in this case — in this

particular case. / am asking, rather, whether ‘for

religious or philosophical or any other reason

you believe that the death penalty should never

be inflicted in any case, regardless of what the

evidence might be.

In answering this next question, keep in

mind that the circumstances and motives for the

commission of crimes, including capital murder,

are unlimited. Place a check mark by your

answer, yes or no. Do you have conscientious

scruples in regard to the infliction of death for a

person convicted of capital murder? Yes or no?

If you have answered the proceeding [sic]

question yes, come up to the bench now.

(Emphasis added). Deporto was one of the prospective jurors

who responded to the trial court’s invitation. After Deporto

20a

introduced herself at individual voir dire, the following

exchange occurred:

[DEPORTO]: I have seen other murder cases

and have agreed with the death penalty, but I

don’t feel I could bring a death penalty for

somebody, to put that pressure on me.

[COURT]: Ma’am, it’s not a question right now

of how you feel about your serving as a juror.

Right now, are you opposed to the death

penalty in all cases?

[DEPORTO]: No, sir.

[COURT]: Could you ever, sitting as a juror, no

matter -- no matter what the evidence showed,

vote to inflict the death penalty?

[DEPORTO]: No, sir.

[COURT]: Anybody want to ask a further

question.

Neither the State nor the defense accepted the trial court’s

invitation to ask additional questions. The State then

challenged for cause, the trial court granted the State’s

challenge, and Ortiz objected.

Initially, we address the State’s contention that Ortiz

2la

failed to preserve error because he did not obtain a ruling on his

objection. The State relies upon Texas Rule of Appellate

Procedure 33.1, which requires, among other things, that the

record show “the trial court...ruled on the...objection...either

expressly or implicitly.” We have held that an objection after a

challenge for cause is sustained is by itself sufficient to preserve

error.'? We see no reason to depart from our prior precedent to

impose a requirement that a ruling be obtained on an objection

leveled immediately after a challenge for cause is granted. So

long as the objection is made immediately after the Challenge is

granted, the discharge of the prospective juror from service is

tantamount to an adverse ruling on the objection.

We turn to the merits. Under Witt, a prospective juror

may be excused for cause if her views about the death penalty

would substantially impair the performance of her duties as a ~

juror in accordance with her instructions and oath.” Ortiz

contends that Deporto’s negative answer to the trial court’s

question, “Could you ever, sitting as a juror, no matter — no

'° Barefield v. State, 784 S.W.2d 38, 41 (Tex. Crim. App.

1989), cert. denied, 497 U.S. 1011 (1990).

20 469 U.S. at 424.

22a

matter what the evidence showed, vote to inflict the death

penalty?” was correct because, at that point in the trial, she had

not even found Ortiz guilty. Ortiz’s contention is that the

question as worded asks the juror if he can answer the special

issue in the State’s favor no matter what the evidence shows.

Ortiz concludes that, as a result, the record fails to show

substantial impairment. We disagree.

The trial court’s question to Deporto, asking whether

she could vote to inflict the death penalty, was not clearly

worded, and any answer to that question, in isolation, would be

inconclusive on the question of whether a prospective juror is

challengeable under Witt. However, the trial court had earlier

phrased the issue clearly and correctly (see italicized portion of

trial court’s statements), and the question directed specifically

at Deporto was asked in the context of a juror who had already

expressed doubt about her ability to personally assess the death

penalty. A prospective juror is challengeable for cause under

Witt if she could never personally impose the death penalty,

regardless of the facts of the case, even though she might

support imposition of the death penalty in the abstract or if

23a

someone else imposed it.”* Although the trial court’s question

to Deporto was ambiguous, the record in this case was

sufficient for the trial court to believe that Deporto could never

personally vote in a such a manner that the death penalty would

be assessed. The trial court did not abuse its discretion in

granting the State’s challenge for cause. Point of error three is

overruled.

iil. JURY CHARGE

A. Ex Post Facto violation / wrong version of statute

In his first point of error, Ortiz claims the trial court’s

retroactive application of the retaliation statute to his case

violated the ex post facto clause of the United States

Constitution. He explains that at the time that he allegedly

committed this offense, § 36.06 criminalized harming or

threatening to harm another for his “service” as a public servant,

witness, prospective witness, or informant. But by the time of

Ortiz’s trial, the statute had been changed to criminalize

harming or threatening to harm another for his “service or

status” as one of those named persons. At Ortiz’s trial, the

21 Robinson v. State, 851 S.W.2d 216, 227-228 (Tex. Crim.

App. 1991), cert. denied, 512 U.S. 1246 (1994).

24a

judge charged the jury with the amended definition of retaliation

rather than the definition in effect at the time of the offense.

Ortiz’s argument is misplaced. Both the federal and

state constitutions prohibit the promulgation of any “ex post

facto law.” This prohibition “bars application of a law ‘that

changes the punishment, and inflicts a greater punishment, than

the law annexed to the crime, when committed.”’” In both

provisions, the language is directed at the Legislature, not the

courts. In Jeppert v. State, we did not appear to appreciate

the distinction, but that failure was understandable in light of the

Supreme Court’s case in Bouie v. City of Columbia,” which

stated that due process prohibited the judiciary from achieving,

through construction of a statute, the exact same consequence

that would be prohibited by the ex post facto clause if the

Legislature had so acted. Recently, the Supreme Court held this

22 See United States Constitution, Article I, §10, Texas

Constitution, Article I, §16.

23 Johnson v. United States, 529 U.S. 694, 699 (2000),

quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798).

24 908 S.W.2d 217, 220 (Tex. Crim. App. 1005).

25 378 U.S. 347, 353-354 (1964).

EEE

25a

Statement to be dicta and clarified that the ex post facto clause

does not apply to the judiciary, and due process does not

incorporate all of the ex post facto clause’s strictures.2° In

holding that the protections are not coextensive, the Court

pointed to “important institutional and contextual differences

between legislating, on the one hand, and common law

decisionmaking, on the other.””” Indeed, the Supreme Court

has indicated that an ex post facto problem does not arise from

a trial court’s erroneous retroactive application of a statute, but

only if the statute itself has retroactive effect.”®

So in order to prevail on his ex post facto claim, Ortiz

would have to show that § 36.06 itself operates retroactively,”

rather than that the trial court retroactively applied it.

He does not do so. He does not even contend that § 36.06

as Rogers v. Tennessee, 532 U.S. 451, _,121 S. Ct. 1693,

1698-1700 (2001).

27 Id. at 1699.

28 Johnson v. United States, 529 U.S. 694, 701-702

(2000)(because new statute did not apply retroactively, no ex post

facto question arises; only question is whether the old statute

authorized the trial court’s action).

> id

26a

itself operates retroactively, and our review of the statute

confirms that it does not. We find no ex post facto violation in

this case.

Ortiz’s point of error could also be construed as arguing

that the trial court’s charge to the jury was erroneous because

it relied on the wrong version of the statute. With this

contention, we agree. The record reflects that the judge

charged the jury on the current version of § 36.06 rather than

the version in effect at the time of the offense.

Since Ortiz did not object to the charge on this basis, we

review this error for “egregious harm.”*° Egregious harm exists

when the defendant has been denied a fair and impartial trial.*’

The charge permitted the jury to convict Ortiz ifit found

that he had killed Garcia in retaliation for his “service or status”

as a prospective witness, but it should have only permitted

conviction for killing Garcia on account of his “service” as a

prospective witness. While this charge did broaden the scope

%® Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (op. on reh’g).

3 Id.

———CVCo eee

27a

of the offense, the facts of this case do not reflect that Ortiz

suffered egregious harm. As noted supra in point of error four,

the evidence demonstrated that Garcia was a prospective

witness against Ortiz because he had been involved in a robbery

with Ortiz and had already been identified by one of the robbery

victims. A rational trier of fact could conclude from this

evidence that Ortiz acted in “retaliation” because Ortiz knew

that Garcia had been involved in the robbery with him.

This evidence supports a conclusion that Ortiz murdered

Garcia due to either his status or his service as a prospective

witness. As explained in point of error four, some redundancies

exist in the statute with regard to the phrase “prospective

witness.” This is also true when the words “status” and

“service” are considered. With the other options in the statute

— public servant, witness, and informant — there is a clear

difference between that person’s status versus his service. But

with a “prospective witness,” the line is blurred, since the word

“prospective” denotes a future event. There is little difference

between a prospective witness’ status and his service. As a

result, we cannot conclude that Ortiz was egregiously harmed

by the erroneous charge. We overrule Ortiz’s first point of

error.

B. Requested suicide instruction

In point of error five, Ortiz contends that the trial court

erred in denying his request for an instruction in the jury charge

on suicide as a defense to the crime. Ortiz asked the trial court

to submit the following instruction to the jury: “If you find from

the evidence that the deceased, Gerardo Garcia, came to his

death by a wound inflicted by himself with his own hands, or

you have a reasonable doubt thereof, you will acquit the

defendant.” Ortiz contends that the trial court erred in refusing

the instruction because the accused has the right to an

instruction on any defensive issue raised by the evidence.

But a defensive instruction is not required when the

issue in question is not a statutorily-enumerated defense and

| merely serves to negate elements of the State’s case.** For this

reason, we have held that trial courts are not required to give

jury instructions on “independent impulse”® or “alibi.”** There —

*2 Solomon v. State, 49 S.W.3d 356, 369 (Tex. Crim. App.

2001); Giesberg v. State, 984 S.W.2d 245, 248-251 (Tex. Crim. App.

1998), cert. denied, 525 U.S. 1147 (1999).

33 Solomon, 49 S.W.3d at 369.

* Giesberg, 984 S.W.2d at 248-251.

ee EE

29a

is no suicide defense in the Penal Code (or in any other statute)

to the crime of capital murder, and the defense’s suicide theory

simply negates elements of the State’s case (i.e. whether Ortiz

killed Garcia as the State has alleged). The trial court did not

err in denying the instruction. Point of error five is overruled.

IV. EXCULPATORY EVIDENCE

In point of error six, Ortiz contends that the State

suppressed a secret deal with Hector in exchange for Hector’s

testimony.** Ortiz relies solely upon evidence in the trial record:

he did not raise the claim in a motion for new trial. The

evidence presented at trial does not prove that there was a deal

between Hector and the State; it shows merely that the State

took various measures to protect Hector’s safety so that he

would not be killed before he testified. And to whatever extent

that the evidence presented at trial might support the existence

of a deal, that evidence was before the jury. Ortiz fails to show

that the State suppressed exculpatory evidence. Point of error

six is Overruled.

°° See Brady v. Maryland, 373 US. 83 (1963)(due process

violated by the government’s suppression of exculpatory evidence);

Bagley v. United States, 473 U.S. 667 (1985)(Brady applies to

impeachment evidence).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

In points of error seven, eight, and twelve, Ortiz

contends that he received ineffective assistance of counsel at

trial. To succeed on an ineffective assistance claim, the

defendant must show: (1) counsel's performance was deficient

and (2) the deficient performance prejudiced his defense.* To

show deficient performance, the defendant must prove by a

preponderance of the evidence that his counsel's representation

fell below the standard of professional norms.*’ To demonstrate

prejudice, the defendant must show a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.*

A. Membership in gang

In point of error seven Ortiz contends that counsel

performed ineffectively by failing to object to evidence of

Ortiz’s affiliation with the Texas Syndicate and to the

prosecutor’s comments about this gang affiliation in opening

6 Strickland v. Washington, 466 U.S. 668, 687 (1984).

37 Id. at 688.

38 Id. at 694.

3la

statement and closing arguments. When an ineffective

assistance claim alleges that counsel was deficient in failing to

object to the admission of evidence, the defendant must show,

as part of his claim, that the evidence was inadmissible 2° Ortiz

claims the Texas Syndicate evidence was irrelevant under Texas

Rule of Evidence 402 and constituted impermissible character

evidence under Texas Rule of Evidence 404. We find that the

evidence was admissible and that the State’s comments, based

upon such evidence, were proper.

Ortiz complains about testimony relating to the Texas

Syndicate and Ortiz’s association therewith. The evidence can

be summarized as showing the following: (1) the Texas

Syndicate has conflicts with other gangs and must be segregated

in the jail system, (2) Ortiz is a high ranking member of the

Syndicate, (3) as a high ranking member, Ortiz controlled the

Syndicate tank, was the contact person with jail officials for all

members of the tank, controlled the exercise of jail privileges

including what items were ordered at the commissary,

conducted numerous meetings with other gang members, and

could have other inmates killed, and (4) Hector was a prospect

* See Jaubert v. State, 74 S.W.3d | (2002).

32a

being brought into the Syndicate by Ortiz.

Rule 404(b) provides in relevant part:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in

order to show action in conformity therewith.

It may, however, be admissible for other

purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident....“

Gang membership evidence is admissible under Rule 404(b)(and

Rule 402) if it is relevant to show a noncharacter purpose that

in turn tends to show the commission of the crime.*’

The testimony in question served a variety of

noncharacter purposes relevant to showing Ortiz’s guilt of the

crime. Conflicts between gangs explained why the Texas

Syndicate had its own tank. Ortiz’s status in the gang proved

a variety of things. First, his high ranking in a criminal gang

explained his ability to smuggle heroin into the jail and tended

” Tex. R. Evid. 404(b). Ortiz concedes that he was given

the proper notice of the State’s intent to offer this evidence.

*! See Vasquez v. State, 67 S.W.3d 229, 239-240 (Tex.

Crim. App. 2002); Medina v. State, 7 S.W.3d 633, 643-644 (Tex.

Crm. App. 1999), cert. denied, 529 U.S. 1102 (2000).

33a

to show that the heroin was Ortiz’s, not Garcia’s. Second,

Ortiz’s high ranking in the organization and his control over the

tank tended to prove his opportunity and ability to carry out the

crime. It explained Ortiz’s ability to gain the cooperation of

other inmates to restrain Garcia and force an injection of heroin

without leaving signs of a struggle. Third, the evidence tended

to rebut defense impeachment of the State’s witnesses. Ortiz’s

position in the Texas Syndicate explained inconsistencies in

Hernandez’s and Hector’s statements by showing that

statements favorable to Ortiz were motivated by their fear of

him. The evidence also tended to rebut the defense claim that

a secret deal existed between the State and Hector by explaining

why the State declined to incarcerate Hector and why Hector

testified on cross-examination that there was a deal. Point of

error seven is overruled. |

B. Attempt to smuggle heroin into the jail

Ortiz next contends that counsel performed ineffectively

by failing to object to evidence that Ortiz attempted to have

heroin smuggled into the El Paso County jail. But the State did

not introduce this evidence until after defense counsel used the

drug smuggling offense to impeach Hector’s credibility and to

argue that he had entered into a secret deal with the State. It

34a

was then that the State proved the connection between that

offense and Ortiz’s orders. Defense counsel’s use of the

extraneous offense to impeach Hector was clearly trial strategy.

Once that trial strategy was invoked, defense counsel could

have rationally believed that he was not in a position to prevent

the evidence of Ortiz’s involvement. Ortiz’s role gave a more

complete picture of the offense and helped explain why the

State was willing to unilaterally forego prosecuting Hector.

Moreover, the evidence showed a scheme or plan by

Ortiz to import heroin into the jail — which in turn tends to

substantiate the State’s theory that Ortiz killed Garcia with

heroin. In addition, the drug smuggling offense tended to show

Hector’s close association with Ortiz. While such evidence has

some tendency to show that Ortiz is a criminal generally, given

the legitimate purpose of the evidence, the trial judge did not

abuse his discretion in finding that the evidence was admissible

under R. 403.*? Point of error eight is overruled.

*2 Tex. R. Evid. 403 provides:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues,

(continued...)

35a

C. Hearsay

In point of error twelve, Ortiz contends that counsel

performed ineffectively by failing to object to hearsay

statements relayed by Special Agent Lott. Ortiz complains that

Lott relayed hearsay evidence from an ex-girlfriend of Garcia

and from a fingerprint examiner that connected Garcia to

several bank robberies.

Trial counsel’s reasons for failing to object do not

appear in the record. Arguably, the evidence was admissible to

show why Lott’s investigation focused upon Garcia and Ortiz.

When the State first introduced the statements from Garcia’s

ex-girlfriend, defense counsel objected on the basis of hearsay,

the objection was sustained, and the trial court gave the jury an

instruction to disregard. The State then asked Lott whether he

knew the statements were true (he did not) and whether the

statements had an impact on his investigation (they did).

Moreover, had defense counsel pursued a hearsay

objection on these topics, the State might have chosen to

(...continued)

or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative

evidence.

36a -

introduce the evidence directly through Ortiz’s ex-girlfriend and

the fingerprint examiner. Defense counsel might have believed

that such direct evidence would have a more powerful and

adverse effect on the jury than the evidence the State was —

content to offer. Point of error twelve is overruled.

The judgment of the trial court is affirmed.

DATE DELIVERED: September 25, 2002

PUBLISH

37a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 73,692

RICARDCO ORTIZ, Appellant

V.

THE STATE OF TEXAS

APPEAL FROM

EL PASO COUNTY

WOMACK, J., filed a concurring opinion.

I join the Court’s opinion, including its rejection of the

appellant’s insufficient-evidence argument. There is an

additional, historical support for the Court’s construction of the

term “prospective witness” in the retaliation statute. The term

was added in 1983 to cure a defect that this court had found in

1982.

In its original enactment in 1973, the offense of

retaliation was defined as conduct “in retaliation for or on

account of the service of another as a public servant, witness, or

38a

informant.”** Neither “witness” nor “informant” was defined,

possibly because the terms were not in the proposed penal code

of 1970, which limited the offense of retaliation to acts against

public servants or former public servants.“

In 1982 we decided that “the term ‘witness’ means ‘one

who has testified in an official proceeding,’ and does not

include a mere ‘prospective witness.’”“* We noted the comment

of drafters of the penal code.“ The comment was, “‘Witness’

is not defined, but presumably the term will be construed to

mean only one who testifies before an official proceeding, cf

Section 36.05; otherwise, location of the ‘witness’ part of the

offense in this chapter would be inappropriate.”*” We also

“Penal Code Act, 63d Leg., R.S., ch. 399, § 1, sec.

36.06(a), 1973 Tex. Gen. Laws 883, 948.

“See STATE BAR COMMITTEE ON REVISION OF THE

PENAL CODE, TEXAS PENAL CODE: A PROPOSED REVISION §

36.06 (Final Draft 1970).

‘SBenson v. State, 681 S.W.2d 708, 711 (1982) (on

original submission).

“Td, at 710.

“Seth R. Searcy & James R. Patterson, Practice

(continued...)

39a

compared the retaliation statute (section 36.06) with the

tampering-with-witness statute (section 36.05), which defined

the offense as acts toward “a witness or prospective witness.”

Our holding was made “[i]n light of the fact that the legislature

has, by statute, differentiated offenses against ‘witnesses’ only

and ‘witnesses and prospective witnesses.’”**

The next legislature eliminated the discrepancy between

the statutes. It did so by amending the retaliation statute to

protect “prospective witnesses,” just as the tampering statute

did.

We know, from legislative history, the reason for the

inclusion of “prospective witnesses” in the tampering statute:

“Note that the person whom the actor attempts to influence

(...continued)

Commentary, 4 VERNON’S ANNOTATED CODES: PENAL CODE

22, 23 (1974).

“*Benson, 661 S.W.2d at 710 (quoting Penal Code Act,

63d Leg., R.S., ch. 399, § 1, sec. 36.05(a), 1973 Tex. Gen.

Laws 883, 947).

“Td, at 711.

Act of June 19, 1983, 68th Legislature, R.S., ch. 558,

§ 4, 1983 Tex. Gen. Laws 3237, 3238.

40a

need not actually be a witness. Tampering with a prospective

witness creates a risk of interfering with an official proceeding

even if the person bribed or threatened has not been officially

called to offer evidence.”*' I think that the legislature amended

the retaliation statute for the same reason. To construe the

statute as this appellant proposes would be contrary to that

policy. The text of the statute does not make the appellant’s

proposal any more likely than the construction we have given it,

and our construction is in accord with the legislative history,

while his is not.

En banc.

Delivered September 25, 2002.

Publish.

*!STATE BAR COMMITTEE ON REVISION OF THE PENAL

CODE, supra note 2, § 36.05 Committee Comment. When the

committee’s proposals were enacted without substantive

change, as the tampering statute. was, the drafters’ comments

are the most important expression of the legislative history. See

Aguirre v. State, 22 §.W.3d 463, 471 (Tex. Cr. App. 1999).

4la

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.73,692

- RICARDO ORTIZ, Appellant

Vv.

THE STATE OF TEXAS

ON APPEAL _

ae ROM EL PASO =

KELLER, P.J., filed a concurring opinion.

CONCURRING OPINION

We have previously addressed the meaning of

“prospective witness.” In Morrow v. State, we held that the

retaliation statute does not require the initiation of official

proceedings for one to be a prospective witness.” Although the

Court does not disturb this holding, it should be noted that its

opinion today conflicts with some of the distinctions drawn by

Morrow between prospective witnesses and informants. The

52 862 S.W.2d 612, 613 (Tex. Crim. App. 1993).

42a

Court effectively disavows any suggestion in Morrow that a

certain level of cooperation or visibility is required for a person

with relevant information to become a prospective witness.

I agree with the Court’s analysis and join the Court’s

opinion.

KELLER,

Presiding Judge

Date filed: September 25, 2002

Publish

43a

OFFICIAL NOTICE FROM COURT OF

CRIMINAL APPEALS OF TEXAS a

P.O. BOX 12308, CAPITOL STATION

AUSTIN, TEXAS 78711

November 13, 2002

243®° DISTRICT COURT: 980D08993

RE: Case No. 73,692

STYLE: ORTIZ, RICARDO

On this day the Appellant’s Motion for Rehearing was

denied.

Troy C. Bennett, Jr., Clerk

James D. Lucas

303 TEXAS AVENUE

SUITE 806

EL PASO, TX 79901