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Court of Criminal Appeals of Texas.


NO. WR-78,123-01

Decided: February 08, 2017

RICHARDSON, J., filed a dissenting statement in which NEWELL and WALKER, JJ., joined.


Today this Court denies relief to Applicant on his habeas claims based on its own review of the record.1 This is a capital murder case, and it is undisputed that Applicant was not present at the time of the shootings. He was convicted and sentenced to death as a party. The trial court failed to conduct a live evidentiary writ hearing, and, although the trial court's findings were extensive, they contained several inaccuracies. It appears that habeas counsel did not seek an evidentiary hearing, and it is possible that an evidentiary hearing may not further enlighten the trial court's understanding and assessment of the facts beyond the affidavits and other evidence submitted to the trial court. However, the trial court has a statutory obligation to completely and thoroughly review an applicant's claims, and, particularly in a death penalty case, I believe that no stone must go unturned.2 Therefore, I believe we should remand this case to the trial court to conduct an evidentiary hearing, which would help resolve the factual discrepancies between the record and the trial court's findings. 3 For that reasons, respectfully, I dissent to this Court's decision to deny relief at this time.

Applicant was a sergeant in the Tri City Bombers (“Bombitas”) gang. One of his duties in the gang was to furnish firearms to its members. In this case, Applicant had delivered firearms to members of the Bombitas gang, knowing that the guns would be used to steal drugs from the occupants of a house in Edinburg, Texas. The members of the gang who went to the house killed six people. Applicant was convicted of capital murder under the law of parties and was sentenced to death.

It was undisputed that Applicant did not participate in, nor was even present at the time of, the killings of these six people. However, because Applicant was convicted under a theory of party liability, the State was not required to prove that he specifically intended to kill the victims in order to convict him for capital murder. Applicant admitted transporting weapons to the gang members who did the shootings; Applicant's fingerprints were found on a gun case that contained firearms that were linked to the murders; and, after the murders, Applicant had the guns returned to his home where he cleaned them and then left them with a friend with instructions to destroy them in the event that he was arrested. Applicant knew that the co-conspirators were arming themselves with weapons he had furnished to them, he knew that they were planning to take a large amount of drugs, and he admitted that he was a gang officer and that he knew some of his fellow gang members had committed murder in the past. The State proved that Applicant should have known the gang members were capable of murder based on a murder carried out by the same members a few weeks prior. The jury found that the murders were committed in furtherance of an unlawful purpose and that Applicant should have anticipated the killings as a result of the carrying out of the conspiracy. The jury found that Applicant participated in a conspiracy to commit an armed robbery that resulted in the deaths of six people. Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced Applicant to death.4 This Court affirmed the conviction and sentence.5

The trial court appointed writ counsel, who filed a “bare bones” initial writ application in 2007. However, because that writ application did not sufficiently present Applicant's claims,6 and in light of a conflict of interest between Applicant and his writ counsel, this Court dismissed that application and appointed new writ counsel in 2012.

In its Order Containing Findings of Fact, Conclusions of Law, and Recommendation, the trial court made 809 findings of fact, and 316 conclusions of law. As noted above, there are a number of findings and conclusions that the record does not appear to support or that otherwise appear to be erroneous.

Applicant raised among other things, multiple allegations that lead trial counsel rendered ineffective assistance. Applicant's counsel is deceased and was unable to provide an affidavit responding to Applicant's claims. His co-counsel furnished an affidavit that essentially refuted Applicant's claims. The trial court found this affidavit to be credible.

My concern is that a number of the trial court's findings of fact and conclusions of law are not supported by the record. Applicant is entitled to a full and fair review of his claims, especially given the nature of his punishment. An evidentiary hearing will allow the trial court to properly and fully address Applicant's claims as well as allow Applicant to cross-examine the former co-counsel.

Under these facts, this Court should require the trial court to conduct a thorough review of Applicant's claims which, in my opinion, necessitates an evidentiary hearing. Therefore, I believe this Court should have remanded this case back to the trial court so that it may conduct an evidentiary hearing and submit findings that are supported by the record. For these reasons, respectfully, I dissent.


1.   See Ex parte Reed, 271 S.W.3d 698, 727 (“When our independent review of the record reveals that the trial judge's findings and conclusions are not supported by the record, we may exercise our authority to make contrary or alternative findings and conclusions.”).

2.   Convicted death row inmates are entitled to “one full and fair opportunity” to seek collateral review. See Ex Parte Graves, 70 S.W.3d 103, 117 (Tex. Crim. App. 2002) (discussing the purpose of Article 11.071).

3.   When from the record it appears that there are “unresolved factual issues material to the legality of the applicant's confinement,” the court can hold an evidentiary hearing to resolve these issues. Tex. Code Crim. Pro. Art. 11.071, § 9(a).

4.   TEX. CODE CRIM. PROC. Art. 37.071, § 2(g).

5.   Medrano v. State, No. AP-75,320 (Tex. Crim. App. Nov. 26, 2008) (not designated for publication).

6.   Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011). In Medina, we held that, because the initial writ counsel (who coincidentally is the same attorney who filed the initial writ in this case) failed to file a cognizable writ application, this Court appointed new writ counsel and established a new filing date for the application to be filed in the convicting court.

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