WR-78,113-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/17/2015 1:08:55 PM
Accepted 7/17/2015 1:36:47 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
RECEIVED
COURT OF CRIMINAL APPEALS
EX PARTE § 7/17/2015
ABEL ACOSTA, CLERK
§
HUMBERTO GARZA, § TEXAS COURT OF CRIMINAL APPEALS
§ NO. WR 78,113-01
APPLICANT §
§
____________________
RENEWED MOTION
FOR ORDER TO CLERK OF CONVICTING COURT TO
TRANSMIT TO THE COURT OF CRIMINAL APPEALS
FILINGS OMITTED FROM THE RECORD OF THIS CASE,
AND MOTION FOR THE COURT TO ABATE PROCEEDINGS
PENDING COMPLETION OF THE RECORD.
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:
On April 15, 2015, Applicant Humberto Garza III, through counsel, filed a
“Motion for Order to Clerk of Convicting Court to Transmit to the Court of
Criminal Appeals Filings Omitted from the Record of this Case,” of which a copy
is attached. That Motion has never been ruled upon. The Clerk of the Convicting
Court has, nonetheless, almost entirely remedied the deficiencies in the record of
this capital habeas corpus case noted in that previous motion.
However, there remains one significant omission from the record: This is a
case in which Applicant’s counsel filed multiple sealed and ex parte pleadings
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which in many instances concerned requests for funding for expert and
investigative services. Those materials were not transmitted to this Court with the
rest of the record, and have still not been transmitted despite that being requested
in Applicant’s previous motion.
Moreover, in a capital habeas corpus case, the Clerk of a Convicting Court
is required, pursuant to TEX. CODE CRIM. PROC. Art. 11.071 § 9, to “ ... transmit
to: (1) the Court of Criminal Appeals a copy of ... (G) the sealed materials such as
a confidential request for investigative expenses[.]”
In addition to the provision of such materials to this Court being a statutory
mandate, the sealed materials may well be relevant to the disposition of
Applicant’s case: The Convicting Court’s failure to provide timely and adequate
funding with which Applicant could develop his case had a significant detrimental
impact upon his ability to present his Grounds for Relief, see, e.g., “Applicant’s
Objections to, and Motion for Withdrawal of, the Convicting Court’s Findings of
Fact and Conclusions of Law and recommendation of Denial of Relief,” at p. 35-
39. This Court’s fair and independent determination of Applicant’s case therefore
requires the relevant pleadings and other materials to be available for review.
Undersigned counsel has made efforts to ensure the completion of the
record in this case, including traveling to the Court of Criminal Appeals twice to
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review the record, liaising with the Clerk of the Convicting Court and with this
Court’s General Counsel, and filing the previous motion for transmission of the
omitted filings. Since those efforts have not yet resulted in the completion of the
record, Applicant respectfully requests this Court to order the Clerk of the
Convicting Court immediately to transmit to it the above-mentioned documents as
required by TEX. CODE CRIM. PROC. Art. 11.071 § 9. Applicant also respectfully
requests that this Court abate its review of this case until the record is complete,
lest its decision be formed on the basis of a record that is incomplete through no
fault of the Applicant.
CONCLUSION AND PRAYER.
Applicant respectfully requests that the Court of Criminal Appeals order the
Clerk of the Convicting Court immediately to transmit to it the above-mentioned
documents as required by TEX. CODE CRIM. PROC. Art. 11.071 § 9, and to abate
the proceedings pending the completion of the record.
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Respectfully submitted,
___________________________
HILARY SHEARD
Texas Bar # 50511187
7301 Burnet Road, # 102-328
Austin, TX 78757
Phone: (512) 524 1371
Fax: (512) 646 7067
HilarySheard@Hotmail.com
Counsel for Humberto Garza III, Applicant.
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CERTIFICATE OF SERVICE
I certify that on July 17, 2015, a copy of the foregoing pleading was served
electronically via www.efileTexas.gov on:
Theodore C. Hake, Esq.
Assistant Criminal District Attorney
Hidalgo County Courthouse
100 N. Closner, Room 303
Edinburg, Texas 78539.
Ted.Hake@da.co.hidalgo.tx.us
Michael W. Morris, Esq.
Assistant Criminal District Attorney
Office of the District Attorney
Hidalgo County Courthouse
100 N. Closner
Edinburg, TX 78539
Michael.Morris@da.co.hidalgo.tx.us
____________________________
Hilary Sheard.
WR-78,113-01
.. COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/15/2015 1:42:56 PM
Accepted 4/15/2015 2:16:14 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
RECEIVED
COURT OF CRIMINAL APPEALS
EXPARTE § 4/15/2015
ABEL ACOSTA, CLERK
§
HUMBERTO GARZA,§ TEXAS COURT OF CRIMINAL APPEALS
§ NO. WR 78,113-01
APPLICANT §
§
MOTION FOR ORDER TO CLERK OF CONVICTING COURT
TO TRANSMIT TO THE COURT OF CRIMINAL APPEALS
FILINGS OMITTED FROM THE RECORD OF THIS CASE.
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:
Applicant was convicted of capital murder and sentenced to death on March
24, 2005, in the 370'h Judicial District Court of Hidalgo County, Texas, Judge Noe
Gonzalez presiding. An application for writ of habeas corpus was filed on July
19, 2007. After an evidentiary hearing on August 6 and 7, 2014, and the
submission of proposed Findings of Fact and Conclusions of Law by the parties on
September 30, 2014, the convicting court issued Findings ofFact and Conclusions
of Law on February 12, 2015.
Applicant subsequently, on March 20, 2015, filed in the convicting court
his "Objections To, and Motion for Withdrawal Of, the Convicting Court's
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Findings of Fact and Conclusions of Law and Recommendation of Denial of
Relief." He simultaneously filed an Advisory in the Court of Criminal Appeals
explaining that the Objections had been filed in the convicting court, and provided
copies of the Objections in question.
The clerk of the convicting court thereafter prepared and transmitted to the
Court of Criminal Appeals documents required by TEX. CODE CRIM. PROC. Art.
11.071 § 9 (f). These were filed on Aprill, 2015. Undersigned counsel has
checked the documents as transmitted and filed, and notes the following
omissions, where documents were. filed in the convicting court, but are not
contained in the record now present in the Court of Criminal Appeals. 1
Motion for Approval of Reasonable Attorney Fees and Expenses, filed on
June 3, 2005;
Ex parte Confidential Motion to be Filed under Seal, filed on June 3, 2005;
Letter and Voucher sent to Judge Gonzalez, filed on June 14, 2005;
Motion for Approval of reasonable Attorney Fees and Expenses, filed on
June 14, 2005;
Order signed by Judge Gonzalez, filed on June 23, 2005;
Order signed by Judge Gonzalez on October 4, 2005;
1
In most instances the existence of these filings can be ascertained from the docket sheet
filed with the record. However. some ofthe items are not reflected on the docket sheet, even
though undersigned counsel is in possession of file-stamped copies of those items.
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Letter from Hon. John E. Wright, filed on September 26, 2005;
Attorney Fees Expense Claim Fonn, filed on February 11, 2013;
Letter to Hon. Theodore C. Hake concerning codefendants from Hilary
Sheard, filed on September '13, 2013; 2
Ex parte letter to the 3 70th District Court, filed on December 10, 2013;
Letter to Hon. Theodore C. Hake from Hilary Sheard, filed on May 12,
2014;
Supplemental Exhibit Volumes 1 and 2, filed on May 28, 20 14;
Supplemental Exhibit Volume 3, filed on August 5, 2014;
State's Proposed Order Containing Findings ofFact, Conclusions of Law
and a Recommendation, filed on September 30, 20 14;3
Applicant's Objections, filed on March 20, 2015.
Applicant further notes that, although the existence of multiple sealed
filings in this case is reflected by the inclusion in the record as transmitted of the
cover sheets to those filings, there is no indication with the record as filed that the
2
Two separate letters were sent simultaneously to Assistant District Attorney Theodore C.
Hake by undersigned counsel, and copies of both were provided for the court file. Only one
letter is reflected on the convicting court's docket sheet and in the record.
3
While the convicting court in large part simply adopted these State-drafted Findings of
Fact and Conclusions of ~aw, the court did amend and edit some sections before issuing its
actual Findings of Fact and Conclusions of Law, as explained in Applicant's Objections filed on
March 20,2015. The Court of Criminal Appeals will not be able to analyze the differences
between the two documents- an analysis which, as explained in Applicant's Objections, is
necessary as part of the Court's independent review of the case- without having both documents
before it.
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contents of those sealed filings have actually been transmitted to the Court of
Criminal Appeals.
In addition to the above, the clerk of the convicting court has not provided
undersigned counsel with the documents required by TEX. CODE CRIM. PROC. Art.
11.071 § 9 (f)(2) other than in electronic scanned form by e-mail.
TEX. CODE CRIM. PROC. Art. 11.071 § 9 (f) creates a statutory requirement
for the transmission of the record in a capital habeas corpus case to the Court of
Criminal Appeals. Moreover, state habeas counsel has an obligation to ensure that
there is a complete record available concerning every issue raised. See, e.g., State
Bar of Texas: Guidelines and Stan.dards for Texas Capital Counsel: Standing
Committee on Legal Services to the Poor in Criminal Matters Adopted by the
State Bar Board of Directors, reprinted in 69 TEX. B. J. 966, 971 (2006), Guideline
12.2.6.a - Duties of Post-Trial Counsel.
In this case, the items omitted from the record transmitted to the Court of
Criminal Appeals include 3 volumes of exhibits filed on behalf of Applicant, and
Objections to many aspects of the convicting court's conduct of the case. It is
therefore necessary, in order for Applicant to receive a comprehensive and
independent review of his grounds for relief, for the missing items to be provided
to the Court of Criminal Appeals as soon as possible.
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CONCLUSION AND PRAYER.
Applicant respectfully requests that the Court of Criminal Appeals order the
Clerk of the Convicting Court to transmit to it the above-mentioned documents as
required by TEX. CODE CRIM. PRO.C. Art. 11.071 § 9 (f) as soon as possible, and to
provide to counsel for the Applicant the documents requ ired by TEX. CODE CRIM.
PROC. Art. ll.071 § 9 (g)(2). Applicant also specifically requests that the Court
of Criminal Appeals order all sealed fil ings be transmitted to it by the Clerk of the
Convicting Court, if that has not already been done.
Respectfully submitted,
HILARY SHEARD
Texas Bar # 505 11187
7301 Burnet Road,# 102-328
Austin, TX 78757
Phone: (512) 524 1371
Fax: (512) 646 7067
HilarySheard@Hotmail.com
Counselfor Humberto Garza Ill, Applicant.
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CERTIFICATE OF SERVICE
I cettify that on April 15, 20 15, a copy of the foregoing pleading was served
electronically via www.efileTexas.gov on:
Theodore C. Hake, Esq.
Assistant Criminal District Attorney
Hidalgo County Courthouse
I 00 N. Closner, Room 303
Ed in burg, Texas 7853 9.
Ted.Hake@da.co.hidalgo.tx.us
Michael W. Morris, Esq.
Assistant Criminal District Attorney
Office of the D istri ct Attorney
Hidalgo County Courthouse
I 00 N. Closner
Edinburg, TX 78539
Michael.Morris@da.co.hida lgo.tx.us
Hilary Sheard.