EX PARTE SANCHEZ v. << (2025)

Rehearing denied.

DISSENTING OPINION

Ralph Weldon Petty was compensated by the district courts in Midland County for work performed on habeas applications in addition to being paid as a prosecutor in the Midland County District Attorney's Office. Judge John Hyde had been the one to seek this arrangement in 2002, and it was later determined in Ex parte Young that, while performing duties as a prosecutor, Petty also worked as a paid judicial clerk for Judge Hyde in connection with habeas applications.¹ In Ex parte Lewis, this Court determined that, even though Petty did not perform work in connection with that defendant's habeas application, his work at the defendant's trial and his work in general as Judge Hyde's law clerk violated the defendant's due process right to a fair and impartial judge.²

Late last year, this Court uncritically followed Lewis and granted relief in Applicant's case, even though a different judge presided over Applicant's trial and even though Petty's involvement in Applicant's case was more limited than his involvement in Young or Lewis. Two facts make this case different from Young and Lewis and persuade me that we should deny Applicant relief or at least grant rehearing and reconsider this case. First, the judge who presided over Applicant's case has provided a sworn affidavit stating that she never employed Petty as her law clerk and had no ex parte conversations with him, and the habeas trial court found those statements credible. Second, other than possibly ghost-writing some of the State's pleadings and motions, Petty's involvement in Applicant's case was limited to participating at the guilt-stage jury-charge conference, and the trial judge ruled against Petty's arguments on the only contested issues that were litigated.

I. BACKGROUND

A. Trial Record

Applicant was charged with aggravated assault. Petty's name does not appear on any motions or pleadings written by the State. At Applicant's trial, Petty's only appearance was at the guilt-stage jury-charge conference.

At the jury-charge conference, Petty introduced himself as an assistant district attorney, talked about working with the Defense to prepare the guilt-stage jury charge, and asked defense counsel whether he was requesting the submission of the lesser-included offense of deadly conduct. Defense counsel confirmed that he was.

Petty then objected to the submission of deadly conduct and said that the State had filed a written objection. He pointed out that aggravated assault can be proven with a “reckless” culpable mental state. He stated that the only element of “reckless” aggravated assault that is not also an element of deadly conduct was that the victim suffered serious bodily injury. Petty argued that the evidence indisputably showed that the victim suffered serious bodily injury, and so, no evidence showed that Applicant was guilty only of deadly conduct. Consequently, Petty concluded that Applicant was not entitled to submission of the lesser-included offense. Petty cited and discussed a Dallas Court of Appeals decision in support of this conclusion.

The trial court then asked, “Are you actually telling me that you want me to grant your objection?”

Petty acknowledged that it was a “perilous adventure” for the prosecutor to ask a trial court to deny a requested lesser-included offense. He nevertheless maintained that Applicant was not entitled to it.

The trial court asked for feedback from defense counsel. Defense counsel began by contending that deadly conduct was a lesser-included offense of aggravated assault. Petty interjected that he agreed with that proposition. Defense counsel then discussed the defendant's testimony and talked about a presumption of recklessness for the deadly-conduct offense when an actor knowingly points a firearm at or in the direction of another. He also argued that the “serious bodily injury” element of aggravated assault did not prevent deadly conduct from being a lesser-included offense.

The trial court interjected, “Okay. I can short-circuit this. I'm going to overrule the State's objection, and we are ready to read the Charge.” Petty asked the trial court to note his objection, and the trial court responded, “I have signed it, and I have overruled it. You can write on it.”

Petty then pointed to another issue in the jury charge. If deadly-conduct were submitted, then the definition of “knowingly” had to be expanded to include nature-of-conduct language—to account for deadly conduct—in addition to the result-of-conduct language that applied to aggravated assault. Defense counsel agreed that the definition should be expanded and said he had no objection to Petty's proposed wording.

The trial court then asked, “[D]oes the presumption of recklessness apply to the recklessness in aggravated assaults?” Petty responded, “No,” and the trial court suggested inserting into the jury charge language limiting the presumption of recklessness to the deadly-conduct offense. Defense counsel agreed. Petty expressed uncertainty about how the presumption should be charged but ultimately said he would have to tailor the presumption solely to the deadly-conduct offense to comply with the trial court's instructions. The trial court said, “I think that's the safe thing to do.” Petty reiterated that the definition of “knowingly” needed to be expanded to account for deadly conduct, and the trial court and defense counsel both agreed.

Petty then said, “However, you know, the State must object to it being included in the Court's Charge.”

The trial court responded, “That's fine. Your objection is overruled. Would you go do it please?”

When Petty came back, he lodged another objection. This time Petty sought to have the presumption of recklessness expanded beyond the offense of deadly conduct to apply to recklessness with respect to aggravated assault as well. The trial court overruled that objection. Petty did not participate any further in the trial.

B. Habeas Record

The judge who presided at Applicant's trial, Robin Darr, provided an affidavit in which she swore that Petty never worked for her, that she had no improper ex parte conversations with him in any case, and that she always perceived him to be working for the District Attorney's Office:

I never individually or as Judge of the 385th District Court employed Mr. Ralph Petty as a judicial law clerk, de facto or otherwise. Mr. Petty did not perform any legal research or writing for me. I never had an permissible ex parte communication with Mr. Petty regarding any matter pending in court. Specifically, I never discussed orally or in writing with Mr. Petty, any of the writs of habeas corpus to which Mr. Petty responded on behalf of the State. Mr. Petty delivered every document to me on every writ of habeas corpus in his role as the Midland County Assistant District Attorney. The description of Mr. Petty as my law clerk or as providing legal work for me or the 385th District Court is a mischaracterization of the facts.

Judge Darr described herself coming to the bench in 2004 and relying upon statements from Judge Hyde that Petty was paid by the County because “he spent personal time working on the writs.” She further stated that Petty never performed any work for her in connection with Applicant's first habeas application and that his work on that habeas application was as a representative of the State. Judge Darr acknowledged that she had approved an invoice for Petty's work on Applicant's first habeas application, but she said that the invoice was solely for his work as a prosecutor and that he was not paid by her court but by Midland County's District Court's budget.

Also, the two prosecutors who tried Applicant's case provided affidavits saying that Petty's participation in the case was limited to possibly helping with or drafting pleadings or motions and in representing the State at the guilt-stage jury-charge conference. One of the trial prosecutors stated that Petty did not sit at counsel table.

In its findings of fact, the habeas trial court found Judge Darr's affidavit “credible and persuasive.”³ The habeas trial court also found that “Judge Robin Darr never thought or understood that Petty worked directly for the district court judges rather than as an advocate for the district attorney's office.”⁴ Indeed, the habeas court also made the following findings regarding Judge Darr:

39. Judge Robin Darr never understood Petty to work as her employee or clerk. She never employed Petty in any manner.

40. Judge Robin Darr understood that the work Petty performed was always as an advocate on behalf of the district attorney's office.

41. Judge Robin Darr never assigned work to Petty.

42. Judge Robin Darr became aware of Petty's representation of the State in writ applications only when Petty filed a document in the matter in his role as a Midland County assistant district attorney.

* * *

50. Petty had no impermissible ex parte communications with Judge Robin Darr.5

II. ANALYSIS

A. Young, Lewis, and the Present Case

This Court's prior opinion in Young sets out that, in 2002, Judge Hyde sought an opinion from the Midland County Attorney on whether Petty could receive payment for work on habeas matters in addition to his salary as a prosecutor.⁶ Judge Hyde passed away in 2012, so it was not possible to question him about his professional relationship with Petty or any conversations that he might have had with Petty in the connection with the habeas applications in the Young and Lewis cases.⁷ Because Young is not published, I limit my discussion of that case for the factual background it provides and focus on Lewis.

In Lewis, this Court remarked that the State and the habeas trial court had confirmed that Petty was employed as Judge Hyde's paid judicial clerk while Petty was also acting as a prosecutor at the defendant's trial.⁸ Finding this set of facts to be a denial of due process,⁹ the Court concluded:

The undisputed facts establish that the trial court allowed his paid judicial law clerk to represent one of the parties appearing before him in a contested legal matter. This undisclosed employment relationship between the trial judge and the prosecutor appearing before him tainted Applicant's trial.10

The concurring opinion in Lewis pointed out that Petty's participation in the proceedings was substantial and included contested hearings at which the State received favorable rulings.¹¹ Petty represented the State at two pretrial conferences, filed a response to the defendant's motion in limine, examined witnesses and presented argument in opposition to the defendant's motion to suppress, and filed a motion for leave to amend the indictment.¹² Judge Hyde denied the motion to suppress and granted in part the State's motion to amend the indictment.¹³

However, in granting relief in the present case, this Court perfunctorily cited Lewis and said, “[T]he Court has since decided that the appearance of impropriety entitled applicants in this situation to relief.”¹⁴ But the present case differs from Lewis in two important respects.

B. No Employment Relationship

First, the present case involves a different judge than the one in Lewis. The judge in Applicant's case—Judge Darr—has sworn that Petty was never employed as her judicial clerk, never did legal work for her, and interacted with her only as a representative of the State. And the habeas trial court found those statements by Judge Darr to be credible and made a number of other findings that support a conclusion that there was no employment relationship between Petty and Judge Darr. Although this Court is the “ultimate factfinder” in an Article 11.07 habeas proceeding, we “ordinarily defer[ ] to the habeas court's fact findings, particularly those related to credibility and demeanor, when those findings are supported by the record.”¹⁵ Here, the habeas court's findings are supported by the record. If this Court is going to ignore supported-by-the-record findings in an Article 11.07 habeas proceeding, it should explain why. As it is, I see no reason to ignore those findings. If this Court is dissatisfied with a credibility finding made solely on the basis of Judge Darr's affidavit, it could remand the case to the habeas court to conduct a live evidentiary hearing.¹⁶

C. Any Presumption of Bias Rebutted

Second, the present case differs from Lewis because Petty's involvement was more limited, and on the only contested issues he spoke on, he lost. Although Petty might have ghost-written some pleadings or motions for the State, his name appears on none of them, and there is no reason to think he communicated to Judge Darr that he worked on them. That leaves the jury-charge conference. Petty made two objections: (1) he objected to the submission of the lesser-included offense of deadly conduct, and (2) having lost on that issue, he objected to not extending the presumption of recklessness in the deadly-conduct context to the offense of aggravated assault. Judge Darr ruled against him on both objections. Moreover, the tenor of Judge Darr's comments displays her being incredulous about, not deferential to, Petty's arguments.

Even if Petty had been Judge Darr's judicial clerk, I would not treat a conflict of interest created by such employment exactly the same as the judge herself having a conflict from dual roles. The Texas Constitution prohibits a judge from sitting on a case on which the judge has previously been counsel.¹⁷ By its wording, that provision does not apply to a judge's judicial clerk having previously been counsel on the case. Likewise, due process prohibits a judge from sitting on a case on which the judge had previously acted as a prosecutor.¹⁸ But if a judicial clerk who worked for a judge had previously worked on a case as a prosecutor, the judge would not automatically be disqualified if, at the very beginning, the judge screened the judicial clerk from any participation in the case.¹⁹ The possibility of proper screening shows that a judicial clerk's conflicts need not always be imputed to the judge.

What if proper screening has not occurred? The appropriate rule in that situation seems to me to be to infer a rebuttable presumption of bias on the part of the judge. Presuming bias but allowing the presumption to be rebutted would seem to best balance the State's interest in the finality of the conviction with the defendant's interest in a fair trial. To ensure that a defendant's right to a fair trial has not been infringed, any presumption of bias arising from a judicial clerk's conduct should be rebutted beyond a reasonable doubt. In the present case, I think the facts clearly satisfy that standard. Petty represented the State only at the jury-charge conference, there were only two contested issues at that conference, and, on both of those issues, he lost. This stands in contrast to the situation in Lewis, where Petty participated more extensively in the proceedings, obtained a favorable ruling on a suppression issue, and obtained a partially favorable ruling on a different issue. In the present case, it is obvious that Petty had no sway over the trial judge. Under the circumstances of Applicant's case, we can be confident beyond a reasonable doubt that Applicant was not deprived of a fair and impartial judge in violation of due process.

D. Disposition

I would grant the State's motion for rehearing. Because the Court does not, I respectfully dissent.

FOOTNOTES

1.   No. WR-65,137-05, 2021 WL 4302528, *4 (Tex. Crim. App. September 22, 2021) (not designated for publication).

2.   688 S.W.3d 351, 352 (Tex. Crim. App. 2024); id. at 353 (Richardson, J., concurring).

3.   Findings of Fact and Conclusions of Law, Finding of Fact 33.

4.   Id., Finding 38.

5.   Id., Findings 39-42, 50.

6.   Young, 2021 WL 4302528, at *2.

7.   See id.; Lewis, 688 S.W.3d at 356 (Richardson, J., concurring).

8.   Lewis, 688 S.W.3d at 351. The State agreed to relief in Lewis. Id.

9.   Id.

10.   Id. at 352.

11.   Id. at 354 (Richardson, J., concurring).

12.   Id.

13.   Id.

14.   Ex parte Sanchez, WR-84,588-03, 2024 WL 5153194, *1 (Tex. Crim. App. December 18, 2024) (not designated for publication) (citing Ex parte Lewis, 688 S.W.3d 351 (Tex. Crim. App. 2024)).

15.   Ex parte De La Cruz, 466 S.W.3d 855, 865 (Tex. Crim. App. 2015).

16.   See Ex parte Brown, 205 S.W.3d 538, 541 (Tex. Crim. App. 2006) (“We remanded the case to the trial court to conduct a live evidentiary hearing” on the habeas applicant's actual-innocence claim.”)

17.   Tex. Const. art. V, § 11.

18.   See Williams v. Pennsylvania, 579 U.S. 1, 4, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016); In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 (Tex. Crim. App. 1955).

19.   See United States v. Martinez, 446 F.3d 878, 883 (8th Cir. 2006).