Opposition Brief — Ortiz v. Texas

No. 02-1189 wal

me Ge THE Ot J]

IN THE w

SUPREME COURT OF THE UNITED STATES

RICARDO ORTIZ,

Petitioner,

¥,

THE STATE OF TEXAS,

Respondent.

On Petition for Wnit of Certiorari

to the Court of Criminal Appeals of Texas

RESPONDENT?’S BRIEF IN OPPOSITION

GREG ABBOTT GENA BUNN

Attorney General of Texas Assistant Attorney General

Chief, Capital Litigation Division

BARRY R. McBEE

First Assistant Atterney General *JOHN ANDREW HUTTON

Assistant Attorney General

JAY KIMBROUGH

Deputy Attorney General Capital Litigation Division

For Criminal Justice P. O. Box 12548, Capitol Station

Austin, Texas 78711

*Counsel of Record (512) 936-1600

ATTORNEYS FOR RESPONDENT

ie

CAPITAL CASE

QUESTIONS PRESENTED

Whether a Texas statute which permits the prosecution to

assert a challenge for cause to a prospective capital juror

where “the juror has conscientious scruples in regard to the

infliction of the punishment of death” is facially invalid

under the Sixth Amendment where the state courts have

construed the statute as a basis for disqualification only to

the extent constitutionally permitted by Wainwright v.

Witt, 469 U.S. 412 (1985).

Whether the lower court erred by rejecting Petitioner’s

allegation that his trial attorney rendered ineffective

assistance of counsel when he did not object to the

prosecution’s challenges for cause to thirteen prospective

jurors who indicated that they opposed the death penalty in

all circumstances.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................... i

TABLE OF CURIOS 6 bia ie ee eee ewes il

TABas OF AU Tepe CO 6 os cen obsess bwwueeeeeen V

STATEMENT OF THE CASE ....................... ]

I. SONY TS gon 5k i ee eee l

a Venire member Reid ................... 3

ae Venire member Bonilla ................. 3

» Venire member Berlit .................. 4

4, Venire member Reta ................... 5

5. Venire member Lopez .................. 5

6. Venire member Herrick ................ 7

7. Venire member Escamilla ............... 7

8. Venire member Cortinas ................ 8

u Venire member Estala ................... 9

10 Venire member Portillo ................. 9

11. Venire member Gallegos ............... 10

12. Venire member Palomo ................ 11

13 Venire member Caballero .............. 11

Il. ee Ce eee 12

RTE | kx ke ce cea cbenndteeeeeee ee 13

I. The Questions Presented For Review Are

Unworthy Of The Court’s Attention. ........... 13

liiiliieieaiiieien

-111-

TABLE OF CONTENTS, CONTINUED

Page

II. The Texas Statute Permitting The Prosecution

To Challenge A Prospective Capital Juror For

Cause Where The Juror’ Voices

“Conscientious Scruples” Against The Death

Penalty Is Not Unconstitutional. ............... 4

A. Under the Court of Criminal Appeals’

construction of Article 35.16(b)(1), a

prospective capital juror may only be

disqualified from service based on

“conscientious scruples” where the

juror’s views on capital punishment

would prevent or substantially impair

the performance of her duties............. 15

B. This Court may not consider Ortiz’

allegation that prospective jurors in his

case were improperly excluded under

Witt because the lower court’s

disposition of the claim was based on

an adequate and independent state

procedural ground. ..................... 19

Ii]. The Lower Court Correctly Declined To Find

That Ortiz’? Trial Attorney Had Rendered

Ineffective Assistance Of Counsel Based On

The Record Presented During Direct Appeal. ..... 21

A. The Strickland Standard................. 22

-iv-

TABLE OF CONTENTS, CONTINUED

Page

B. Ortiz has_ failed to demonstrate

that his attorney’s performance fell

below an_ objective standard of

POROUS nn kc eect e ta esewness 23

eee eT eT ee oe ere Terre Ter 26

-\-

TABLE OF AUTHORITIES

Cases Page

Adams v. Texas, 448 U.S. 38 (1980) ................. 15,17

Bell v. Cone, 122 §. Ct. 1843 (2002) .... 02... cece ccens 22

Clark v. State, 881 S.W.2d 682 (Tex. Crim. App. 1994) .... 17

Coleman v. Thompson, 501 U.S. 722 (1991) ........... 20,21

Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998) ..... 20

Cuevas v. State, 742 §.W.2d 331 (Tex. Crim. App. 1987) .. 18

Ex parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1998) 24

Ex parte Goodman, 816 S.W.2d 383 (Tex. Crim. App. 1991) 24

Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997) .. 24

Fisher v. Texas, 169 F.3d 295 (Sth Cir. 1999) ............ 20

Haley v. Cockrell, 306 F.3d 257 (Sth Cir. 2002) .......... 20

Harris v. Reed, 489 U.S. 255 (1989) .......0......0005. 20

Herb v. Pitcairn, 324 U.S. 117 (1945) ........0....00005. 20

Holberg v. State, 38 S.W.3d 137 (Tex. Crim. App.),

cert. Gented, S34 U8. S72 GOT) 2. eee neces 18

Houston v. Hill, 482 U.S. 451 (1987) .................. 18

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TABLE OF AUTHORITIES, CONTINUED

Cases Page

Jackson v. Johnson, 194 F.3d 641 (Sth Cir. 1999)......... 20

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998) .. 24

Lambrix v. Singletary, 520 U.S. 518 (1997) ........ 19,20,21

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) .... 24

McFarland v. State, 928 S.W.2d 482

(Fa. CO FO 5 ses cs oe chet saws saan 18

Michigan v. Long, 463 U.S. 1032 (1983) ............. 20,21

Nix v. Whiteside, 475 U.S. 157 (1986) ................06. 22

Penry v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985) ... 17

Ramos v. State, 934 S.W.2d 358

eee FO rere eee 12,18

Robinson v. State, 16 S.W.3d 808 (Tex. Crim. App. 2000) .. 24

Sharp v. Johnson, 107 F.3d 282 (Sth Cir. 1997) .......... 20

Smith v. Cockrell, 311 F.3d 661 (Sth Cir. 2002) .......... 20

Sochor v. Florida, 504 U.S. 527 (1992) .............. 20,21

Strickland v. Washington, 466 U.S. 668 (1984)...... 22,23,25

Styron v. Johnson, 262 F.3d 438 (Sth Cir. 2001),

cert. denied, 534 U.S. 1163 (2002) ................. 20

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TABLE OF AUTHORITIES, CONTINUED

Cases Page

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .. 24

Wainwright v. Sykes, 433 U.S. 72 (1977) ..........05... 20

Wainwright v. Witt, 469 U.S. 412 (1985) ............. passim

White v. State, 610 S.W.2d 504 (Tex. Crim. App. 1981) ... 17

Witherspoon v. Illinois, 391 U.S. 510 (1968) ......... passim

(Terry) Williams v. Taylor, 529 U.S. 362 (2000)........ 22,23

United States v. Cofske, 157 F.3d 1 (1st Cir. 1998) ........ 23

United States v. Jake, 281 F.3d 123 (3d Cir. 2002) ........ 23

United States v. King, 119 F.3d 290 (4th Cir. 1997) ....... 23

United States v. Rivas, 157 F.3d 364 (5th Cir. 1998) ...... 23

United States v. Neuhausser, 241 F.3d 460 (6th Cir. 2001),

cert. denied, 534 U.S. 879 (2001) ............... 23

United States v. Evans, 272 F.3d 1069 (8th Cir. 2001),

cert. denied, 535 U.S. 1029 (2002) .............. 23

United States v. Rewald, 889 F.2d 836 (9th Cir. 1989) ..... 23

United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) .. 23

United States v. Griffin, 699 F.2d 1102 (11th Cir. 1983) ... 23

ee ee ee

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TABLE OF AUTHORITIES, CONTINUED

Cases Page

United States v. Richardson, 167 F.3d 621 (D.C. Cir. 1999) 23

Wolfe v. State, 917 S.W.2d 270 (Tex. Crim. App. 1996) ... 18

Constitutions, Statutes and Rules

Sh. i Ag MU WE tes on ck sc eee kecastdarscvan passim

TEX. CRIM. PROC. CODE ANN. art. 35.16(b)(1)

SP CD 6% 6.6 8 68 6 a6 aehee 0 eb ee 6048404 es passim

TEX. PENAL CODE ANN. § 12.31(b) (Vernon 1974)... 15,17,18

ee AU, WE as uence keke oe cae 2 eee eee 13

és

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Petitioner Ricardo Ortiz was convicted and sentenced to

death by a Texas jury for the capital murder of fellow jail inmate

Gerardo Garcia. The Texas Court of Criminal Appeals affirmed

Ortiz’ conviction and death sentence on direct appeal, and he now

seeks certiorari review from this Court. In particular, Ortiz alleges

that the Texas statute governing challenges for cause to

prospective capital jurors who harbor “conscientious scruples”

against the death penalty is facially unconstitutional in light of this

Court’s decisions in Witherspoon v. Illinois, 391 U.S. 510 (1968),

and Wainwright v. Witt, 469 U.S. 412 (1985). He also complains

that his trial attorney rendered ineffective assistance of counsel

when he did not object to the prosecution’s challenges for cause to

thirteen prospective jurors who indicated that they opposed capital

punishment and could not return a death sentence. However, as

discussed below, the Court of Criminal Appeals correctly

concluded that Ortiz’ arguments were without merit. Ortiz does

not present a compelling reason for this Court to review his claims

and certiorari review should be denied.

STATEMENT OF THE CASE

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

County Jail of a massive heroin overdose. The evidence adduced

at trial established that the heroin had been involuntarily-injected

into Garcia by Ortiz, who was a high-ranking member of the Texas

Syndicate prison gang, because Ortiz believed that Garcia had

implicated him in various bank robberies. According to one

witness, Ortiz indicated that he used heroin to kill Garcia in order

to make his death look like a suicide.

I. Jury Selection

Jury selection for Ortiz’ trial began on April 20, 1999. 11

RR 6.' Prior to individual voir dire examination by the parties, the

trial court addressed the assembled venire and discussed various |

questions included on the juror questionnaires. Jd. at 6-97. |

Among other things, the trial court inquired whether any of the |

jurors opposed the death penalty in all cases:

I am now 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 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 punishment 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.

... Iam 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

RR” refers to the “Reporters Record” of transcribed trial

proceedings, preceded by volume number and followed by page numbers.

3

convicted of capital murder? Yes or no?

If you have answered the proceeding

question yes, come up to the bench now.

Id. at 65-66. Twenty venire members came forward in response

to the court’s question and nineteen of those were ultimately

excused from jury service based on the prosecution’s challenge for

cause. /d. at 66-81. Of those nineteen, defense counsel only

raised an objection to the disqualification of two prospective

jurors. Jd. at 77-80.

Of the seventeen jurors excused for cause where defense

counsel did not object, Ortiz cites the testimony of the following

thirteen venire members in his petition for writ of certiorari.

a Venire member Reid

[Defense counsel]: Mr. Reid.

THE COURT: Yes, sir.

[Juror]: In regards to the question you just asked

THE COURT: Yes.

[Juror]: — about the death penalty, I checked on

the yes.

THE COURT: You have conscientious scruples

regarding —

[Juror]: Yes.

THE COURT: Anybody want to ask him any

questions? Take your seat, sir.

State challenge?

[Prosecutor]: Yes.:

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THE COURT: All nmght. Court grants the

challenge. Next person.

11 RR 66-67.

y Be Venire member Bonilla

[Juror]: 57, Elizabeth Bonilla. I think only God

has a right to take someone’s life.

THE COURT: You have conscientious scruples

against infliction of the death penalty in all cases?

Anybody want to ask questions?

[Defense counsel]: No questions.

[Prosecutor]: No.

THE COURT: Take your seat, ma’am.

[Prosecutor]: Challenge.

THE COURT: Court grants the State’s challenge.

11 RR 67.

3. Venire member Berlit

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

do have reservations to the death penalty.

THE COURT: What do you mean by

“reservations?

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

Europe, and I believe that an appropriate

punishment would be life in prison.

THE COURT: The question not really is that. Do

you believe the death penalty unjustified in all

cases?

[Juror]: Yes. Yes, sir.

A.

THE COURT: Questions?

[Prosecutor]: State challenges.

THE COURT: State’s challenge is granted.

11 RR 69.

4. Venire member Reta

[Juror]: Number 127, Diana Reta.

[Prosecutor]: 127, Judge.

[Juror]: And I answered yes to conscientious

scruples in regard to the death penalty.

THE COURT: Is this a religious conviction or —

[Juror]: It’s just a moral, personal —

THE COURT: You’re opposed to the death

penalty in all cases?

[Juror]: Yes, sir.

THE COURT: Questions, State?

[Prosecutor]: No, Your Honor.

THE COURT: Defense?

[Defense counsel]: No questions, Your Honor

THE COURT: Next person.

[Prosecutor]: State is going to challenge that

juror.

THE COURT: Granted.

11 RR 69-70.

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5. Venire member Lopez

[Juror]: 132. Yvonne Lopez.

THE COURT: Ms. Lopez, what is your statement

to the Court?

[Juror]: I would have a problem with the death

penalty.

THE COURT: Anybody would have a problem

with it.

[Juror]: Personally, I would havea problem. Yes,

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

God takes away life.

THE 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

{Jurorj: Yes.

THE COURT: - any and all cases?

[Juror]: Most probably in all cases.

THE COURT: In all cases?

[Juror]: I think so. I’ve never been faced with it,

but | think I would have a problem.

THE COURT: It’s not a question of having a

problem. I’m not trying to —

[Juror]: I answered.

THE 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

a

of what the facts might show?

[Juror]: Yes.

THE COURT: Questions?

[Prosecutor]: No questions.

[Prosecutor]: No.

[Defense counsel]: No questions.

THE COURT: Take your seat.

[Prosecutor]: State challenges. Judge, State

challenged that last juror.

THE COURT: Allright. Granted. I’ve forgotten

the name.

11 RR 70-72.

6. Venire member Herrick

[Juror]: Jeffery Herrick, 123.

THE COURT: Mr. Herrick, you have — I’m not

going put [sic] words in your mouth.

[Juror]: I’m opposed to the death penalty based

on my convictions as a Quaker.

THE COURT: Is that in any and all cases?

[Juror]: Yes.

THE 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.

-8-

THE COURT: Have your seat, sir.

[Prosecutor]: | Move to challenge him, Your

Honor.

THE COURT: Granted.

11 RR 72-73.

Fe Venire member Escamilla

[Juror]; 56, Robert Escamilla.

THE COURT: Yes, sir.

[Juror]: I don’t believe in the death penalty.

THE COURT: You don’t believe it’s justified in

any case?

[Juror]: No, sir.

[Prosecutor]: No questions.

[Defense counsel]: No questions.

[Prosecutor]: He answered affirmatively.

THE COURT: He said he didn’t believe it was

justified tn any case.

[Prosecutor]: We have no questions.

[Prosecutor]: State challenges.

THE COURT: Granted.

11 RR 74.

8. Venire member Cortinas

[Juror]: Dolores Cortinas, juror 97. Sir, I do not

believe in the death penalty.

THE COURT: You do not believe in the death

-9.

penalty for any case whatsoever?

[Juror]: No, sir.

[Prosecutor]: No questions, Your Honor.

[Defense counsel]: No questions.

THE COURT: You may take your seat.

[Prosecutor]: State challenges.

THE COURT: All right. Granted.

11 RR 74-75.

9. Venire member Estala

[Juror]: Andre Estala, number 11. And I do have

a conscientious scruple about this.

THE COURT: What is your statement about the

death penalty?

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

THE COURT: In any kind of case whatsoever?

[Juror]: That’s correct.

THE COURT: You believe it’s never justified?

[Juror]: Never justified. |

[Prosecutor]: No questions, Your Honor.

[Defense counsel]: No questions.

THE COURT: You may return to your seat.

[Prosecutor]: State moves to challenge.

THE COURT: Granted.

11 RR 75-76.

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10. Venire member Portillo

[Juror]: Jorge Portillo, 154.

THE COURT: You are Jorge Portillo. What is

your statement on the death penalty?

[Juror]: I don’t believe it’s nght.

THE COURT: Never justified under any

circumstances?

[Juror]: Two wrongs do not make a nght, sir.

[Prosecutor]: No questions.

[Defense counsel]: No questions.

THE COURT: You may take a seat.

[Prosecutor]: State challenges.

THE COURT: All right.

[Prosecutor]: Is that granted — I’m sorry — on the

last juror?

THE COURT: Granted.

11 RR 76.

11. Venire member Gallegos

[Juror]: Rose Gallegos, number 112.

THE COURT: Make your statement as regards

the death penalty, Mrs. Gallegos.

[Juror]: As a practicing Catholic, I do not believe

in the death penalty.

THE COURT: You don’t believe it is justified in

any case whatever?

[Juror]: No, sir.

oj].

[Prosecutor]: No questions.

[Defense counsel]: No questions, Your Honor.

THE COURT: Take your seat, please, ma’am.

[Prosecutor]: State will challenge.

THE COURT: You do challenge?

[Prosecutor]: Yes.

THE COURT: Granted.

11 RR 76-77.

12. Venire member Palomo

[Juror]: Number 142.

THE COURT: You are Ms. Palomo?

[Juror]: Yes. I oppose the death penalty. |

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

only one that’s supposed to —

THE COURT: You’re opposed to the death

penalty, no matter the circumstances?

[Juror]: Yes. Yes.

[Prosecutor]: No questions.

[Defense counsel]: No questions, Your Honor.

THE COURT: Take your seat, please, ma’am.

[Prosecutor]: State challenges this juror.

THE COURT: Granted.

11 RR 77.

13. | Venire member Caballero

[Juror]: Adriana Caballero, 108.

2.

THE 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.

THE COURT: You think that the death penalty

should never be inflicted in any case whatsoever,

regardless of the facts?

[Juror]: Yes.

[Prosecutor]: No questions.

[Defense counsel]: No questions.

THE COURT: You may take your seat.

[Prosecutor]: State would challenge, Your Honor.

THE COURT: Granted.

11 RR 80-81.

Il. Disposition Below

On appeal to the Court of Criminal Appeals, Ortiz argued

for the first time that a Texas statute permitting disqualification of

capital jurors who have “conscientious scruples in regard to the

infliction of the punishment of death for crime” was facially

unconstitutional under the Sixth Amendment. See Appeal Brief

at 69-73, Ortiz v. State, No. 73,692 (Tex. Crim. App. filed June

25, 2001). In particular, he complained that the statute was

inconsistent with this Court’s decisions in Witherspoon v. Illinois,

391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412

(1985). Jd. However, the state court rejected this facial challenge,

noting that it had previously held that the statute provided a means

for disqualification ‘“‘only to the extent constitutionally permitted

by Witt.’” Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002)

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

0%.

1996)). The court therefore found that, “[hjaving already

narrowed the scope of the statute to what is constitutionally

permissible, we perceive no further basis for complaint.” /d.

Ortiz also contended that, in his case in particular, the

thirteen jurors cited above were impermissibly excused from jury

service in violation of Witherspoon and Witt. See Appeal Brief at

73-77, Ortiz, supra. However, the Texas court concluded that

these allegations were not preserved for appellate review because

“{a] party must object to the granting of a challenge for cause

before he can complain of that action on appeal.” Ortiz, 93

S.W.3d at 88 (footnote omitted). It therefore declined to reach the

merits of Ortiz’ constitutional complaint.

In an apparent attempt to circumvent the procedural bar,

Ortiz also argued that his trial attorney’s failure to object to the

prosecution’s challenges for cause to the excused venire members

constituted ineffective assistance of counsel. See Appeal Brief at

119-24, Ortiz, supra. However, the Court of Criminal Appeals

declined to find a Sixth Amendment violation on the record

presented. Ortiz, 93 S.W.3d at 88-89. The court noted that it was

“possible for counsel to have legitimate reasons for declining to

object” to the prosecution’s challenges. /d. at 89. Because the

record was silent regarding why counsel chose not to object to

disqualification of the thirteen venire members cited by Ortiz, the

court stated that it would “defer to counsel’s decisions and deny

relief on an ineffective assistance claim on direct appeal.” Jd.

ARGUMENT

I. The Questions Presented For Review Are Unworthy Of

The Court’s Attention.

The Rules of the Supreme Court provide that review on

writ of certiorari is not a matter of right, but of judicial discretion,

and will be granted only for “compelling reasons.” Sup. CT.R. 10.

In the instant case, Ortiz fails to advance a “compelling reason” for

this Court to review his case, and none exists. Indeed, the opinion

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issued by the lower court involved only a proper and straight-

forward application of established constitutional principles.

Moreover, this Court does not have jurisdiction to review those

arguments which the Texas court found were defaulted pursuant

to an adequate and independent state procedural bar. The petition

therefore presents no important question of law to justify the

exercise of this Court’s certiorari jurisdiction.

Il. The Texas Statute Permitting The Prosecution To

Challenge A Prospective Capital Juror For Cause

Where The Juror Voices “Conscientious Scruples”

Against The Death Penalty Is Not Unconstitutional.

In Ortiz’ first question presented for review, he complains

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

is facially unconstitutional under the Sixth Amendment. See

Petition at 17-23. As noted above, that statute permits the

prosecution to challenge a prospective capital juror for cause

where “the juror has conscientious scruples in regard to the

infliction of the punishment of death for crime.” TEX. CRIM.

Proc. CODE ANN. art. 35.16(b)(1) (Vernon1996). According to

Ortiz, this law effectively disqualifies jurors who voice only

general objections to the death penalty and is therefore

inconsistent with this Court’s decisions in Witherspoon v. Illinois,

391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412

(1985). He also argues that the trial court applied the defective

statute to his case and improperly excused several qualified jurors.

However, as discussed below, Ortiz’ facial challenge to

Article 35.16 must fail because the Texas courts have construed

the statute to permit venire members to be disqualified only to the

degree constitutionally allowed by Witt. Furthermore, to the extent

Ortiz seeks review of the manner in which the statute was applied

to the jurors in his case, the Court of Criminal Appeals found his

claims to be procedurally defaulted under the Texas

contemporaneous objection rule. This Court therefore does not

have jurisdiction to consider Ortiz’ “as applied” challenge. For

23.

these reasons, certiorari review should be denied.

A. Under the Court of Criminal Appeals’

construction of Article 35.16(b)(1), a

prospective capital juror may only be

disqualified from service based on

“conscientious scruples” where the juror’s

views on capital punishment would prevent or

substantially impair the performance of her

duties.

Ortiz’ facial constitutional challenge to Article 35.16(b)(1)

relies entirely on this Court’s decisions in Witherspoon and Witt.

In Witherspoon, this Court was faced with an Illinois statute which

permitted a prospective capital juror who indicated “that he [had]

conscientious scruples against capital punishment, or that he

opposed the same,” to be challenged for cause. 391 U.S. at 512.

Pursuant to the statute, the State was routinely allowed to excuse

jurors who expressed such reservations without specifically

inquiring into whether those scruples would compel them to vote

against the death penalty. /d. at 515. The Court determined that

such a practice was improper and held “that a sentence of death

cannot be carried out if the jury that imposed or recommended it

was chosen by excluding veniremen for cause simply because they

voiced general opposition to the death penalty or expressed

conscientious or religious scruples against its infliction.” /d. at

521-22 (footnote omitted).

In Adams v. Texas, 448 U.S. 38 (1980), the Court further

clarified the standard to be used for assessing the propriety of a

challenge for cause. That case involved the former Texas statute

which prescribed that “‘[a] prospective [capital] juror shall be

disqualified from serving as a juror unless he states under oath that

the mandatory penalty of death or imprisonment for life will not

affect his deliberations on any issue of fact.’” /d. at 42 (quoting

TEX. PENAL CODE ANN. § 12.31(b) (Vernon 1974)). The Adams

Court concluded that the Witherspoon line of cases established

-16-

“the general proposition that a juror may not be challenged for

cause based on his views about capital punishment unless those

views would prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his oath.”

Id. at 45. However, the Court went on to hold that the Texas

statute at issue had been applied to the petitioner’s case in such a

way as to exclude jurors who were qualified to serve under

Witherspoon. Id. at 49-51. In particular, the state courts had

interpreted the statute so broadly that the prosecution had excluded

venire members “who stated that they would be ‘affected’ by the

possibility of the death penalty, but who apparently meant only

that the potentially lethal consequences of their decision would

invest their deliberations with greater seriousness and gravity or

would involve them emotionally.” Jd. at 49 (footnote omitted).

The Court found that this expansive application of the statute

could not be squared with the Sixth Amendment. /d. at 50.

In Wainwright v. Witt, this Court further refined the

standard that had been “simplified” in Adams for evaluating a

challenge for cause. Witt, 469 U.S. at 421. The Court summarized

the governing rule as follows:

Thf[e] standard [for determining when a

prospective juror may be excluded for cause

because of his or her views on capital punishment]

is whether the juror’s views would “prevent or

substantially impair the performance of his duties

as a juror in accordance with his instructions and

his oath.” We note that, in addition to dispensing

with Witherspoon’s reference to “automatic”

decisionmaking, this standard likewise does not

require that.a juror’s bias be proved with

“unmistakable clarity.” This is because

determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results

- in the manner of a catechism. What common

sense should have realized experience has proved:

«] 7.

many veniremen simply cannot be asked enough

questions to reach the point where their bias has

been made “unmistakably clear”; these veniremen

may not know how they will react when faced with

imposing the death sentence, or may be unable to

articulate, or may wish to hide their true feelings.

Despite this lack of clarity in the printed record,

however, there will be situations where the trial

judge is left with the definite impression that a

prospective juror would be unable to faithfully and

impartially apply the law. . . . [T]his is why

deference must be paid to the trial judge who sees

and hears the juror.

Id. at 424-26 (internal footnotes omitted).

Turning to the instant case, it is apparent that the Texas

statute passes constitutional muster. After Adams was decided, the

Court of Criminal Appeals narrowed its construction of section

12.31(b) of the Penal Code so that it “[could not] be used . . . to

exclude jurors on grounds broader than those permitted by the

Supreme Court in Witherspoon v. Illinois.” Penry v. State, 691

S.W.2d 636, 656 (Tex. Crim. App. 1985); see also Clark v. State,

881 S.W.2d 682, 686 (Tex. Crim. App. 1994); White v. State, 610

S.W.2d 504, 508 (Tex. Crim. App. 1981). The state courts

concluded that Adams did not declare section 12.31(b) facially

unconstitutional, but simply admonished the State because the

statute had been applied too broadly.” Clark, 881 S.W.2d at 686;

Penry, 691 S.W.2d at 656; White, 610 S.W.2d at 508.

Nevertheless, in 1991, the Texas Legislature deleted the language

confronted by the Adams Court. Clark, 881 S.W.2d at 685 n.1.

In Adams, the Court specifically noted that “the State could,

consistently with Witherspoon, use § 12.31(b) to exclude prospective jurors

whose views on capital punishment are such as to make them unable to follow

the law or obey their oaths. But the use of § 12.31(b) to exclude jurors on

broader grounds based on their opinions concerning the death penalty is

impermissible.” Adams, 448 U.S. at 48-49.

-18-

Article 35.16(b)(1) then became the only statutory basis for

excluding prospective capital jurors who opposed the death

penalty. As with section 12.31(b), the Court of Criminal Appeals

has consistently interpreted the “conscientious scruples” provision

of this statute to permit a venire member to be disqualified from

service in a capital case only where the juror’s views would

“prevent or substantially impair the performance of his duties as

a juror in accordance with his instructions and his oath.” Holberg

v. State, 38 S.W.3d 137, 141 (Tex. Crim. App.), cert. denied, 534

U.S. 972 (2001) (citing Witt, 469 U.S. at 424); see also Ortiz, 93

S.W.3d at 88; Ramos v. State, 934 S.W.2d 358, 366 (Tex. Crim.

App. 1996); McFarland v. State, 928 S.W.2d 482, 509 n.24 (Tex.

Crim. App. 1996); Wolfe v. State, 917 S.W.2d 270, 275-76 (Tex.

Crim. App. 1996); Cuevas v. State, 742 S.W.2d 331, 334 (Tex.

Crim. App. 1987). Thus, the statute is coextensive with this

Court’s opinions in Adams and Witt. If a juror is qualified to serve

under the constitutional standard articulated in those cases, he is

likewise qualified to serve under Texas law. See Ramos, 934

S.W.2d at 365; McFarland, 928 S.W.2d at 509 n.24. Put another

way, a juror cannot be disqualified under Article 35.16(b)(1) ifhe

is acceptable under Adams and Witt. Ortiz, 93 S.W.3d at 88;

Ramos, 934 S.W.2d at 365. Because the Texas courts have

tethered the statute’s requirements to the constitutional standards

announced by this Court, it survives a facial constitutional

challenge.’ Ortiz’ argument to the contrary is therefore without

merit and undeserving of certiorari review.

*Citing Houston v. Hill, 482 U.S. 451 (1987), Ortiz maintains that the

Article 35.16(b)(1) is simply “not susceptible to a narrowing construction.”

Petition at 21. However, contrary to Ortiz’ argument, it is completely

reasonable for the Court of Criminal Appeals to define “conscientious scruples”

as denoting views that would “prevent or substantially impair” a juror in the

performance of his duties. After all, the phrase “conscientious scruples” is

hardly self-defining. See Witherspoon, 391 U.S. at 515 n.9 (noting of a statute

that permitted jurors to be excused based on “conscientious scruples” that

“(w]hat matters is how [the phrases employed in this area] might be understood

— or misunderstood — by prospective jurors”).

|

-19-

B. This Court may not consider Ortiz’ allegation

that prospective jurors in his case were

improperly excluded under Witt because the

lower court’s disposition of the claim was based

on an adequate and independent state

procedural ground.

Although Ortiz repeatedly characterizes the argument

included in his petition as a “facial” challenge to the

constitutionality of Article 35.16(b)(1), he also contends that the

Statute was improperly utilized to exclude thirteen prospective

jurors in his case who were qualified to serve under Witherspoon

and Witt. See Petition at 17-23. Ortiz seems to imply that the

Court of Criminal Appeals simply ignored this additional

complaint. See, e.g., id. at 19 (“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”). However, a simple

reference to the lower court’s decision reveals that the court

declined to consider the merits of Ortiz’ “as applied” claim

because of an independent state procedural default. The Texas

court found that with regard to the thirteen jurors cited by Ortiz,

“Ortiz did not object to the trial court’s actions in granting the

State’s challenges.” Ortiz, 93 S.W.3d at 88. For this reason, the

court concluded that Ortiz had forfeited his claims:

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. . . .

Id. This holding precludes independent review of Ortiz’

constitutional allegations by this Court.

It is well settled that “this Court ‘will not review a question

of federal law decided by a state court if the decision of that court

rests on a state law ground that is independent of the federal

question and adequate to support the judgment.’” Lambrix y.

- -20-

Singletary, 520 U.S. 518, 522-23 (1997) (quoting Coleman v.

Thompson, 501 U.S. 722, 729 (1991)); see also Harris v. Reed,

489 U.S. 255, 262 (1989) (holding that an adequate and

independent state procedural default will bar federal habeas review

of a claim absent a showing of cause and prejudice). This is so

because the Court “in fact lack[s] jurisdiction to review such

independently supported judgments on direct appeal: Since the

state-law determination is sufficient to sustain the decree, any

opinion of this Court on the federal question would be purely

advisory.” Lambrix, 520 U.S. at 523 (citing Herb v. Pitcairn, 324

U.S. 117, 125-26 (1945)); see also Sochor v. Florida, 504 U.S.

527, 533 (1992) (noting and applying rule that “this Court lacks

jurisdiction to review a state court’s resolution of an issue of

federal law if the state court’s decision rests on an adequate and

independent state ground”); Michigan v. Long, 463 U.S. 1032,

1041 (1983) (“If the state court decision indicates clearly and

expressly that it is alternatively based on bona fide separate,

adequate, and independent grounds, we, of course, will not

undertake to review the decision”).

Ortiz does not contest that the Texas contemporaneous

objection rule constitutes an adequate and independent state

procedural ground. Indeed, as the Fifth Circuit has repeatedly and

correctly emphasized, this aspect of Texas law is firmly

established and regularly followed by the state courts. Smith v.

Cockrell, 311 F.3d 661, 683 (Sth Cir. 2002); Haley v. Cockrell,

306 F.3d 257, 262 n.8 (Sth Cir. 2002); Styron v. Johnson, 262 F.3d

438, 453 (Sth Cir. 2001), cert. denied, 534 U.S. 1163 (2002);

Jackson v. Johnson, 194 F.3d 641, 652 (Sth Cir. 1999); Fisher v.

Texas, 169 F.3d 295, 300 (Sth Cir. 1999); Corwin v. Johnson, 150

F.3d 467, 473 (Sth Cir. 1998); Sharp v. Johnson, 107 F.3d 282,

285-86 (Sth Cir. 1997); see also Wainwright v. Sykes, 433 U.S. 72,

88 (1977) (noting the important function served by a state’s

contemporaneous objection rule). This Court may therefore not

undertake review of this aspect of the lower court’s decision and

a

certiorari review should be denied.’

III. |The Lower Court Correctly Declined To Find That

Ortiz’ Trial Attorney Had Rendered Ineffective

Assistance Of Counsel Based On The Record Presented

During Direct Appeal. -

In an apparent attempt to circumvent the state procedural

bar, Ortiz argues that his trial attorney rendered ineffective

assistance of counsel when he did not object to the prosecution’s

challenges for cause to the thirteen prospective jurors cited above. ©

See Petition at 23-26. He maintains that the record from voir dire

reveals that his lawyers “clearly were unfamiliar with the decisions

‘Even if Ortiz’ allegations were not jurisdictionally barred, they are

without any substantive merit. The record reveals that the trial court specifically

advised jurors that its inquiry was meant to identify whether any of the

assembled venire members “believe[d] that the death penalty should never be

inflicted in any case, regardless of what the evidence might be.” 11 RR 65-66.

All of the jurors identified in Ortiz’ petition came forward in response to the

court’s question and expressed unwavering Opposition to imposing capital

punishment. /d. at 67-81. Twelve of the jurors explicitly confirmed that they

would oppose the death penalty in any circumstance. /d. Only one juror, Andy

Reid, simply answered “yes” to the court’s question as to whether he had

“conscientious scruples” regarding the death penalty. /d. at67. However, Reid

was the first venire member questioned by the court, immediately after the court

had explained that by “conscientious scruples” it meant to reveal only those

jurors who “believe[d] that the death penalty should never be inflicted in any

case, regardless of what the evidence might be.” The court was plainly in the

best position to evaluate each venire member’s demeanor and responses and to

find those individuals unable to follow the law. See Witt, 469 U.S. at 424-26.

In these circumstances, and absent any objection or questions from the defense,

this Court must defer to the conclusions of the trial court.

*To the extent that Ortiz’ Sixth Amendment claim is an attempt to show

“cause and prejudice” for the state default, this argument is inappropriate in the

context of a direct appeal. Although cause and prejudice may excuse a state

procedural default on federal habeas corpus review of a state criminal

conviction, see, e.g., Coleman, 501 U.S. at 750-51, no such excuse is available

to a defendant seeking review by this Court through direct appeal of the state

court’s judgment. See Lambrix, 520 U.S. at 523; Sochor, 504 U.S. at 533;

Long, 463 U.S. at 1041.

a.

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

that Article 35.16(b)1 was unconstitutional on its face.” /d. at 24.

Ortiz argues that by failing to object to the exclusion of the various

venire members, the prosecution was able to successfully stack the

jury with “those who possessed the unwavering view that

imposition of a death sentence was necessary in the event

Petitioner’s guilt were proven.” Jd. at 26. However, as discussed

below, the venire members excused for cause were properly

challengeable under Witt. Counsel was therefore not ineffective

for failing to make a frivolous objection to their dismissal.

Moreover, because the record on direct appeal is silent regarding

why counsel did not challenge the disqualifications, the Court of

Criminal Appeals correctly concluded that Ortiz had presented

insufficient evidence to overcome the presumption that counsel’s

tactics constituted reasonable professional assistance.

A. The Strickland Standard

To prevail on a claim of ineffective assistance of counsel,

a defendant bears the burden of satisfying the two-pronged test set

forth in Strickland v. Washington, 466 U.S. 668 (1984).

Specifically, Strickland requires a defendant to show both (1) that

counsel rendered deficient performance, and (2) that counsel’s

actions resulted in actual prejudice. /d. at 687; see also Bell v.

Cone, 122 S. Ct. 1843, 1850 (2002); (Terry) Williams v. Taylor,

529 U.S. 362, 390 (2000). Failure to meet either element of the

Strickland test will defeat an ineffective assistance of counsel

claim, making it unnecessary to examine the other prong.

Strickland, 466 U.S. at 687.

To establish deficient performance under Strickland, a

defendant must show that, in light of all the circumstances as they

appeared at the time of the conduct, “counsel’s representation fell

below an objective standard of reasonableness,” i.e., “prevailing

professional norms.” /d. at 688-90; see also Nix v. Whiteside, 475

U.S. 157, 165 (1986). This Court has admonished that judicial

scrutiny of counsel’s performance “must be highly deferential,”

a.

with every effort made to avoid “the distorting effect of

hindsight.” Strickland, 466 U.S. at 689-90. Accordingly, there is

a “strong presumption” that the challenged conduct “falls within

the wide range of reasonable professional assistance,” and the

defendant is required to overcome the presumption that counsel’s

actions “might be considered sound trial strategy.” Id. at 689.

Even if counsel’s representation was deficient, the

defendant must also affirmatively prove prejudice that is “so

Serious as to deprive [him] of a fair trial, a trial whose result is

reliable.” Jd. at 687. To meet this requirement, he must show that

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” /d. at 694; see also (Ti erry) Williams, 529 U.S. at

393-95. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at

694.

B. Ortiz has failed to demonstrate that his

attorney’s performance fell below an objective

standard of reasonableness.

The Texas courts have repeatedly indicated that ineffective

assistance of counsel claims are generally disfavored on direct

appeal.° In particular, the state court has explained that in order to

defeat Strickland’s presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly

*Texas is not alone in this conclusion. Virtually every federal circuit

court has also indicated that ineffectiveness claims should be brought in a

collateral attack rather than on direct appeal. See, e.g., United States v. Cofske,

157 F.3d 1, 2 (1st Cir. 1998); United States v. Jake, 281 F.3d 123, 132 n.7 (3d

Cir. 2002); United States v. King, 119 F.3d 290, 295 (4th Cir. 1997); United

States v. Rivas, 157 F.3d 364 (Sth Cir. 1998); United States v. Neuhausser, 241

F.3d 460, 474 (6th Cir. 2001), cert. denied, 534 U.S. 879 (2001); United States

v. Evans, 272 F.3d 1069, 1093 (8th Cir. 2001), cert. denied, 535 U.S. 1029

(2002); United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989); United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); United

States v. Griffin, 699 F.2d 1102, 1107-09 (11th Cir. 1983); United States v.

Richardson, 167 F.3d 621, 626 (D.C. Cir. 1999).

-24-

founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.”” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). However, “[iJn the

majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s

actions.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001) (footnote omitted); see also Robinson v. State, 16 §.W.3d

808, 813 n.7 (Tex. Crim. App. 2000) (“W]e are mindful that only

in rare cases will the record on direct appeal be sufficient for an

appellate court to fairly evaluate [an ineffective assistance] claim’’)

(citation omitted); Thompson, 9 S.W.3d at 813 (“Rarely will a

reviewing court be provided with the opportunity to make its

determination on direct appeal with a record capable of providing

a fair evaluation of the merits of a claim involving such a serious

allegation’”’) (footnote omitted); Ex parte Torres, 943 S.W.2d 469,

475 (Tex. Crim. App. 1997) (“In most cases, the record on direct

appeal is inadequate to develop an ineffective assistance of

counsel claim’’). The Texas courts have therefore concluded “that

a post-conviction writ proceeding. . . is the preferred method for

gathering the facts necessary to substantiate such a Sixth

Amendment challenge.”’ Robinson, 16 S.W.3d at 810 (citations

omitted); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex.

Crim. App. 1998) (noting that because record on direct appeal is

usually insufficient to adequately reflect failings of trial counsel,

appellate court will not apply general doctrine that forbids raising

a claim on habeas review after it was rejected on appeal).

In the instant case, the Court of Criminal Appeals plainly

concluded that, by relying solely on the transcript from voir dire,

Of course, where a ineffective assistance of counsel claim may be

adequately resolved from the trial record, Texas appellate courts will address

the claim in the first instance. See Robinson, 16 S.W.3d at 813 n.7. Indeed,

where a state habeas petitioner attempts to assert a claim during post-conviction

proceedings that is based entirely on the record that is amassed during direct

appeal, his allegations are generally considered procedurally defaulted. See,

e.g., Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998); Ex parte

Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App. 1991).

28.

Ortiz had presented insufficient evidence to overcome the “strong

presumption” of reasonable assistance by trial counsel:

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 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’ ineffective

assistance claims.

Ortiz, 93 S.W.3d at 88-89 (internal footnotes omitted). This

judgment is patently reasonable. In the absence of a full factual

record, a court may not presume that counsel’s actions in these

circumstances were deficient.’ See Strickland, 466 U.S. at 689

(emphasizing that a “strong presumption” exists that challenged

conduct “falls within the wide range of reasonable professional

assistance”).

Counsel could have had any number of legitimate, strategic

reasons for not objecting to the disqualification of the jurors

identified by Ortiz. For instance, counsel could have quite

reasonably concluded that all thirteen jurors were challengeable

‘Ortiz incorrectly asserts that the Court of Criminal Appeals abandoned

Strickland’s objective inquiry in favor of an analysis of counsel’s subjective

motivations. See Petition at 25. Rather, the lower court specifically stated that

it only required evidence of counsel’s decisionmaking where “there is at least

the possibility that the [challenged] conduct could have been legitimate trial

strategy.” Ortiz, 93 S.W.3d at 88. In other words, unless counsel reveals

otherwise, the court properly assumes that an attorney’s performance is not

deficient where legitimate, strategic reasons could exist for an attorney's

actions.

-26-

under Witt.’ In fact, prior to the questioning initiated by the trial

court, the presiding judge specifically advised the venire panel that

his question regarding “conscientious scruples” was meant to

identify only those jurors who, “whether for religious or

philosophical or any other reason . . . believe that the death penalty

should never be inflicted in any case, regardless of what the

evidence might be.” 11 RR 65-66 (emphasis added). All thirteen

jurors responded to this invitation and affirmed their unwavering

opposition to the death penalty. Jd. at 67-81. Although the

individual inquiries were brief, in the context of the court’s

examination end for the reasons apparent to both the parties and

the court at trial, counsel could have reasonably concluded that the

jurors were legitimately excused under this Court’s Sixth

Amendment precedent. Concomitantly, counsel could have

concluded that some or all of the thirteen venire members would

not have made favorable jurors for other reasons. The lower court

therefore correctly concluded that Ortiz had failed to overcome the

presumptions imposed by Strickland. Because there is nothing in

the record to support a finding that counsel was deficient,

certiorari review should be denied.

CONCLUSION

For the foregoing reasons, the State respectfully requests

that the petition for wnt of certiorari be denied.

*Ortiz speculates that his attorney was not familiar with this Court’s

decisions in Witherspoon and Witt. See Petition at 24. However, this

suggestion is belied by the record. Trial counsel specifically objected to the

trial court’s decision to grant the State’s challenge for cause regarding two

jurors who initially wavered regarding whether they could personally impose the

death penalty. See 11 RR 77-80. With one of the jurors, counsel specifically

tried to rehabilitate her answer by asking whether, in an appropriate case, she

could ever “make the proper findings so that the death penalty would be

imposed[.]” /d. at 78. Clearly, counsel was familiar with the fact that jurors

were required to have more than generalized objections to the death penalty

before they could be excused for cause.

* Counsel of Record

x. 2

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

BARRY R. McBEE

First Assistant Attorney General

JAY KIMBROUGH

Deputy Attorney General

for Criminal Justice

GENA BUNN

Chief, Capital Litigation Division

Assistant Attorney General

~*JOHN ANDREW HUTTON

Assistant Attorney General

State Bar No. 24012878

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1600

(512) 320-8132 (Fax)

Attorneys for Respondent