State Ex Rel. Watkins v. CREUZOT

Craig of Texas ex rel. STATE

WATKINS, Relator, CREUZOT,

The Honorable John

Respondent. AP-76,594, AP-76,595.

Nos. Appeals Criminal of Texas.

July

Rehearing Oct. Denied Watkins, Atty., Appel- Dist.

Craig lant. O’Neil, Atty., Senior Lisa

Christina Staff Austin, McMinn, Atty., State’s C. State.

OPINION J., COCHRAN, opinion delivered the KELLER, P.J., Court in which ALCALA, JJ., WOMACK, JOHNSON and joined. Texas, through acting State of Watkins,

Craig District Attor- elected ney County, for a petition Dallas filed a prohibition writ to re- of mandamus quire the trial retrial pending this capital of a murder to vacate his order precluding seeking the State from Reed, the death Jonathan Bruce penalty. interest, filed a party defendant and real Penalty “Motion to Preclude the Death Delay by the State’s Because the Caused Constitutionally Misconduct has Made Impos- Adequate Sentencing Investigation evidentiary hearings, sible.” After several a knife snapping sheath closed with the said, Respondent granted maintenance; other. He “I’m with I —the — that motion. we Because conclude that came change to check and the air condi- legal does not have the filters,” tioner pointed and he toward the preclude the State from seek- bedroom ceiling. Kimberly looked into the ing statutorily punishment authorized bedroom and saw body pro- Wanda’s nude of death set out in Article 37.0711 under truding spread-eagle from beneath the circumstances, these we conditionally Reed, bed. As she turned toward grant relief. mandamus grabbed by her the throat with both hands and threw her to the living room floor on

I. stomach, her saying “Don’t move or I’ll break your f ... neck.” A. The Trial Kimberly heard rummaging Reed 1. Facts through the bedroom and then he returned jury convicted capital Reed of and gagged her with a Braniff uniform murder intentionally killing Wanda Wa- sash, belt, tied her hands with a leather during robbery aggravated dle or rape. and covered her head with an apron. He death, The sentenced him to her, then you asked “Do any money?” have granted but then Reed’s motion for new did, She indicated that she so he took $20 explanation. jury trial without A second from purse her and rummaged through him capital convicted murder in the apartment some more. Reed then re- again and once he was sentenced to death. Kimberly, turned to straddled her with his The evidence from that second trial2 legs, began choking and her with both his showed that Wanda Wadle shared a Dallas feigned hands. She unconsciousness. He friend, apartment with her sister and a finally stopped choking her and left. Kimberly Pursley. All three flight were Kimberly then ran screaming out of the attendants for Braniff. On November apartment help. to find neighbor One 1978, Kimberly came home lunch from a found lying Wanda naked on her back with with her father and noticed Wanda’s suit- her legs spread apart. neighbor The case near purse the front door and her bed, pulled Wanda out from under the lying on the sofa with its contents scat- plastic removed a bag and belt tered about. She concluded that Wanda neck, CPR, began around her and but had returned home sooner than expected days Wanda died nine later without re- flight. from her last Kimberly then heard gaining neighbors consciousness. Two had a male coming voice from behind a closed seen complex shortly Reed before Stay bedroom door: “Don’t come in here. attack, man, and maintenance who Thinking out there.” man was a attack, him had seen after the identified Wanda’s, said, friend of she worry, “Don’t Reed, as did Kimberly. I won’t come in.” Soon Reed opened bedroom door. Reed testified at trial presented an Kimberly leaning through saw him alibi punishment phase, defense. At the doorway with molding one hand on the presented types mitigating four 1. Tex.Code Crim. opin- 2. These facts are taken from this Court's 2(a)(1); § 37.071, Proc. art 69,- appeal. ion on direct Reed v. No. § Tex. Penal Code 12.31. 29, 1995) (not (Tex.Crim.App. March des- ignated publication). for law, (1) not order the State to do good in the he could prior conduct

evidence: they were free to exercise had a G.E.D. that because in which he earned prison “any reason whatev- college challenge their twenty-two hours of completed then (2) responded, credits; prosecutor of a of non- er.” history evidence (1) saying require law did not him to (including violent crimes evidence prior exercising a give any perempto- and director of reason that Reed was the leader (2) ry he “did exercise a string challenge; “pack juveniles” who committed being her because of a black twenty burglaries peremptory home of fifteen to (3) 1978) female”; which, the defendant was argued, it was demonstrated then asked judge the black. The trial defense unlikely that to be violent in he was (3) future; to him with caselaw from family provide back- counsel his turbulent jurisdiction” that “Texas or federal ground (including evidence that he did some school, Defense supported position. he the counsel finish went to high nineteen, provide authority then later step- did not or age at that his penitentiary during objected trial. He to the mother his father when Reed was the married to peremptory challenges State’s four oth- twenty-four, permanent and that he had (4) murder); well. venirepersons er black as home at the time of the and that, who said even if psychiatric experts Appeals: B. The 1983-2009 deviant, “sexually Reed anti-social had a disorder,” he would personality experience and After was convicted sentenced Reed between ages a violence “burnout” the death, to this Dur appealed to he Court. thirty forty. and ing pendency appeal, the of that the Unit decided Supreme ed States Batson 2. Jury Selection which the Kentucky,5 v. in Court held trial, peremptory not use chal During the 1983 Reed’s counsel juror’s the objected lenges solely on account of race prosecutor exercising per- to the jurors the against assumption African- or on that black as a emptory challenges five will prosecutor group impartially the unable to consid Americans.3 When struck venireperson, Osby, against the the er the case black defend very first Ms. State’s Thus, ant.6 the defendant prosecutor wanted the to state his once made defense so, prima showing facie of racial discrimina doing “believe[d] reason for because tion, required to strictly discriminatory it was for State was come for done trial ward with race-neutral reason racial told coun- for reasons.” that, challenge.7 with understanding of his But Batson did deal light sel assumption false that members taken from this of his race 3. These facts are Court's hearing. qualified ju- for a Batson group abatement order as are not serve as 69,292 (internal omitted). rors.”) (Tex.Crim.App. Nov. No. citation 1992) (not designated publication). 97-98, ("Once 7.Id. 106 S.Ct. years three trial was before This showing, prima facie defendant makes Court’s seminal Batson decision. to come burden shifts to State forward challenging explanation with a neutral U.S. jurors.... prosecutor may not black [T]he prima facie rebut the defendant's case of dis- stating merely ("The that he chal- crimination Equal Id. at Pro- jurors lenged defendant's race on guarantees the tection Clause defendant judgment assumption his intuitive race the State will not exclude members of his —that —or race, they partial jury account would be defendant be- from the venire on or on Reed’s situation because he was white and voir-dire transcript for the five challenged Batson, face, applied only persons.12 on its venire five, to the For each of the gave jurors exclusion of black in a race-neutral against reasons for strik juror, accepted a black defendant. This Court did not those reasons as being both credible and Batson claim until after address racially neutral. When the case returned decision, the 1991 Supreme Court Powers Court, to this we upheld the trial judge’s Ohio,8 ruling that a defendant had ruling rejected claims, Reed’s Batson standing object peremp raced-based along with points his other of error. tory challenges even when he was not of Thus, the same race jurors.9 as those After this Court affirmed Reed’s convic- white tion object defendants could to the and sentence in dis the Supreme certiorari criminatory Court denied jurors, exclusion of black 1996.13 Reed then an application black filed for a object post-convic- defendants could to the dis tion corpus writ of habeas convicting criminatory jurors.10 exclusion of white court, adopted and we the judge’s findings decisions, Based on these two new this of fact and denied relief in 1998.14 In appeal Court abated Reed’s in late 1992 1999, the United Supreme States and remanded it to the trial court to con again denied certiorari.15 Batson duct a retroactive hearing. By then —ten years after the trial —neither 1999, Later in petition Reed filed a for prosecutor nor judge the trial had writ of habeas corpus the federal dis- independent memory of the voir dire or trict court. He included his Batson claim jury selection.11 judge Both the trial judge the trial and this Court had prosecutor read and referred to the previously rejected on appeal. direct cause of their shared analysis race.... Nor proffered by of the prose- reasons prosecutor did, however, rebut the merely defendant’s case cution. The defense make a by denying discriminatory that he had a mo- supplemental post-abatement claim that the ’affirm[ing] good making tive or [his] faith in judge failing trial compa- erred in amake ”) (quoting individual selections.' Alexander v. analysis rable rejected which this Court itas Louisiana, 625, 632, 1221, 405 U.S. 92 S.Ct. preserved was not in the trial court. Id. at (1972)). 31 L.Ed.2d 536 However, 26-27. this Court did note that the prosecutor "indicated that there were not sin- 400, 8. 499 U.S. 111 S.Ct. 113 L.Ed.2d his, gle factors that stood alone in [his or (1991). prosecutor's], per- fellow decisions to exercise emptory strikes on the five veniremembers. at408-12, 9. Id. 111 S.Ct. 1364. explained He it was the combination of beliefs answers, including along how far he was 10. See id. dire, peremp- voir that led him to exercise 11. These facts are taken from this Court’s tory strikes. This mix of lend factors does not 69,- appeal opinion. direct Reed v. No. simplistic disparate analy- itself to treatment 29, 1995) (not (Tex.Crim.App. March des- sis.” Id. at 29 n. 8. ignated publication). Texas, 516 U.S. appeal opinion, 12. In our direct we stated: (1996). 133 L.Ed.2d 669 appellant "When called the trial court to the stand, the trial court admitted it did not read Reed, 38,174-01 (Tex.Crim. parte 14. Ex No. dire, the entire record of the voir that it had 16, 1998) (not App. Sept. designated publi- transcript reviewed the of the voir dire of cation). question.” Slip the five veniremembers op. at 24. The defense did not ask the trial Texas, judge to read the rest of the voir dire record 15. Reed v. any comparative and did not ask him to make some evidence potentially mitigating that relief judge recommended magistrate and, 19, 2003, unavailable. Some witnesses have February become be denied on filed records judge agreed. Reed a motion died and some from his childhood district argues was or disqualify magistrate, destroyed which have lost. Reed been that, abated unique Fifth Circuit later “in the factual circumstances granted, case, judge imposing for a federal district of no a death the case new this verdict satisfy exacting That stan- judge Reed’s claims. de- sentence could reconsider July reliability imposed by dard the federal all of Reed’s claims nied rights granted Appealabili- constitution.”20 His due but he a Certificate longer ty on the Batson claim. were violated because he could attorneys full defense and his mount a later, years Three the Fifth Circuit con provide could not effective assistance that, Dretke upon cluded based Miller-El v. because, diligent even with a inves- counsel ,16 an 2005 decision intervening tigation, they bring could not forward miti- Court, Reed was entitled to relief gating longer that no exists. evidence Batson claim.17 Miller-El allowed on his reviewing federal courts use a com hearings evidentiary After several about analysis the voir dire of all of parative unavailability of certain witnesses and jurors in a state- prospective analyzing records, granted though Batson claim even the state court signed fifty-two page motion. He order requested had been to do never that concluded: had not so and state court done so by all of the found Applying facts appeal.18 The Fifth Circuit noted direct above, legal Court to the conclusions although adding not relish “we do concludes Defendant’s chapter story new this unfortunate to team cannot conduct a constitu- defense thirty years more than after the crime investiga- tionally adequate mitigation we that the place, took conclude Constitu tion that the State must therefore affords to relief.”19 On right tion Reed a in precluded seeking death his 12, 2009, January Fifth Circuit ordered trial.21 that Reed be released or on the retried capital charges. 1978 murder legal authority, Reed For relied

upon unpublished ruling by purported II. Philadelphia trial court in Commonwealth motion, pretrial Pennsylvania v. But Reed at complains Wilson. Pennsylvania not be allowed to tached defendant’s should reconsideration, was ap the death in the retrial be- motion for which penalty seek judge after parently cause it was the State’s fault that it took filed the trial had thirty years originally orbit to denied defense motion to appellate play meantime, and, preclude capital-murder out in his in the retrial. We are itself favor Party Opposition by Response 20. Real in 16. 545 U.S. L.Ed.2d Interest at 20. Quarterman, v. F.3d 17. Reed 370-82 Findings 21. Trial Court’s of Fact and Conclu- Cir.2009). (5th Regarding Law the Defendant’s Mo- sions of Penalty the Death Miller-El, tions to Preclude at 241 & n. S.Ct. 19.Reed, 555 F.3d at 382. rulings further any appel- statutory provision

unable to find or is no to allow the State case, late in that but an unpub- appeal decisions pretrial such a advisory rul- Pennsylvania ruling lished trial court is not ing.” Article 44.01 simply “does not au- precedential authority any event. thorize the State to appeal from a pretrial ruling possible on a punishment issue that argues The State fails to any part dismiss of the actual legal grant lacked Reed’s indictment,”27 judge’s and the order in this preclude motion to the State from exercis case does not purport to any por- dismiss ing discretionary right its to seek the Thus, tion here, indictment. inas penalty death this retrial. The State Fine, Lykos v. we conclude that a writ of argues very also that this same due-pro prohibition mandamus or is an appropriate rejected cess claim was vehicle to propriety review the of Reed’s Fifth in one of previous Circuit pretrial motion and the trial judge’s or- The State appeals.22 federal further ar der.28 has, gues that the trial under State Fine,23 Lykos Texas ex rel. v. unlawfully Right B. A Clear to Relief upon adequacy mitiga ruled of Reed’s tried, tion case before he has been convict Fine, Lykos As in the defendant in a ed, or sentenced. pending capital-murder prosecution is at- tempting prevent the State from seek- Based upon filings that are before pretrial via a eviden- us, conditionally grant we the State man- tiary hearing ruling.29 Lykos As in prohibition damus and relief because it has Fine, seeking Reed is declaratory judg- (1) established both that it has no other trial, goes ment that he is if if (2) adequate legal remedy; and it has a guilty, found then it would violate his con- “clear right sought” to the relief and the rights stitutional for the State to even seek legal position merits of its are “beyond penalty the death as a sentence. Unlike dispute.”24 Fine, however, the situation in Lykos v. attacking Reed is not the constitutionality Adequate Remedy A. No at Law statute, of the Texas death-penalty either Here, Fine, facially applied. in or as His claim is Lykos as the based solely upon specific argues State it historical facts adequate unique that has no reme to him unrelated to dy at law to correct what it Article 87.071: He contends is a did legally erroneous and not obtain relief in the pre appellate unauthorized courts for and, trial advisory ruling thirty years, because of precluding lengthy this from seeking delay, this has lost access to certain wit- case.25 explained, As we have the nesses might and documents that have as- appeal ruling “cannot such a punishment because there sisted him in a mitigation case. Quarterman, 22. See Reed v. 504 F.3d 26. Id. (5th Cir.2007). 484-88 27. Id. at 914. (Tex.Crim.App.2011).

23. 330 S.W.3d 904 Id. at 916. Fine, Lykos 330 S.W.3d at 907.

25. See id. at 913. 29.Id. finally, The And if Mr. Reed’s had appeals Due-Process Claim completed the Supreme been before Court po The with problem legal Reed’s 2005, allowing in Miller-El fed- decision Supreme the States

sition United reviewing “compara- to make eral courts recognized due-process Court (or analysis” jurors though tive of all even preclude claim would a retrial so, availability trial was never to do preclude particular of a state asked ap lengthy delay ultimately after a on punishment) he could have obtained re- lack of peal. The Fifth noted this Circuit lief under that 2005 decision. rejected it constitutional when appellate attorneys Mr. Reed’s trial and There, claim in 2007. same pres- should be commended for both their process claimed that “he was denied due haul, diligence long cience and over but delay in the Texas extended Court it is because United States Su- his Appeals’

of Criminal resolution of direct app preme changed Court constitutional eal.”30 landscape years over the almost thirty course, Of if this Court had resolved his appeal his conviction Mr. Reed was appeal (say direct earlier in 1985 before ultimately a new obtained trial. Had decided), Batson was then his Batson appellate delay, worked without would have been rejected claim out Mr. Reed not be getting second Supreme ruling hand because that sum, of the apple. bite this is not an yet had not made new law. constitutional intentionally instance which the State And, appeal if Reed’s direct were not still ignored or flouted established law to ob- decided, pending the time Batson was tain a conviction. This is not a case in via a he also could not have obtained relief judge ignored then-existing which writ of corpus.31 later habeas Indeed, law. that he said Similarly, if this Court had resolved not have legal authority did to ask the appeal direct before the prosecutor to explain per- basis for his Powers, changed Court decision which (and he emptory challenges legally was underlying Batson rationale and focus 1983), correct in making that statement in ju- from the to the prospective defendant but invited counsel to him a defense show white rors allowed defendants to as- gave him authority.32 such sert a Batson claim when members of present exemplifies problems situation group racial are on the distinct struck parties race, try when /and a case of basis Reed not have been advantage aspect then-existing to take of under law to see that able that new undergo changes of Batson. law dramatic in the full- Quarterman, permits 30. Reed v. Fifth F.3d at 484. even Circuit law that me to exercising make the State its reasons for state Lane, 311-16, 288, Teague 31. See 489 U.S. challenge peremptory a ... Texas There are (de- (1989) 109 S.Ct. L.Ed.2d cases which that the can indicate Defense prior fendant whose conviction became final exercising establish that is chal- its to Batson decision could obtain relief lenges discriminatory in a manner and it corpus; habeas the "new” rule constitutional be error —I didn’t read all of but I those cases in applied set out is not to be retroac- Batson and, read a couple did of them for whatever tively corpus on habeas collateral attacks be- is, appeared value it those involve black procedural cause it is "bedrock not a ele- ment”). excluding jurors. defendant and black If the it, record I think is doesn’t show the evidence experienced The trial told defense course, is, Mr. Reed of white male.” any counsel: "I’m not aware of Texas law or But, fortunately ness of time. for Mr. State precluded has been from seeking the Reed, (or doggedly persevered with his any death specific other pun- appeals ishment) various state and federal until the delay based on in obtaining an changed sufficiently law that he was enti- ultimately Indeed, appeal.35 successful to a tled new trial.33 Court, Supreme in the context of a speedy claim, has stated that defendant “[a] But he is not entitled to more than relief with a appeal meritorious would bear the a new trial. As the Fifth in Circuit noted heavy showing burden of an unreasonable rejecting claim, Mr. due-process delay by prosecution caused in that Supreme “there is no Court decision hold- appeal, wholly or a unjustifiable delay by delay excessive in a direct appeal the appellate court.”36 is a violation of the Due Process of has not Clause shown that the delay United States Constitution.”34 In occasioned his ultimately motion and briefs to both the appeal trial court successful unjustifia- was Court, and to this Mr. Reed has not cited a ble. He prevailed precisely because of single Texas or federal case in which the delay.37 judge, rejecting 33. The federal district in delays Mr. appellant’s of arguably case have appellate Reed’s due claim based on necessary been to ensure that his conviction delay, delay helped, also noted that the had proper sentence are and not inhumane. hindered, him in his Batson claims. See Although the protects federal constitution citi- F.3d at abuses, against zens it does not and protect against cannot them those costs which Id. The Fifth Circuit did note that several necessary are and inherent in the exercise opined federal circuits have that “excessive rights guarantees.”). it Justice Thomas appellate delay” could violate the Due Pro- stated, "I am unaware support example, cess Clause. Id. at 486. For the American constitutional tradition or in Henderson, (2d Cody v. 936 F.2d Supreme precedent prop- [the Court’s] for the Cir.1991), stated, the Second Circuit osition that a defendant can avail himself of yet directly Court has not panoply appellate proce- and collateral addressed the issue of whether the Constitu- complain dures and then when his execution guarantees speedy appeal, tion criminal Florida, delayed.” Knight is 528 U.S. opportunity appeal provid- once an for an is (1999) courts, however, ed. The lower federal (Thomas, J., concurring). grappled question, have with the it is now clear in this circuit that substantial Hawk, 36. United States v. Loud delay appeal process in the state criminal 316-17, (1986) 88 L.Ed.2d ground justify sufficient the exercise of (" ’Having sought judicial jurisdiction. pro- federal the aid of the habeas Cody, nine-year realizing the court found that the cess and that a deliberateness delay decision, in the appeal employs resolution of the state reaching court (primarily reporter because the court failed to are defendants not now able to criticize the trial) transcript cogni- create a raised a very process they frequently which so called zable claim in corpus pro- a federal habeas ”) Auerbach, upon.' (quoting United States v. However, ceeding. remedy the normal 921, (5th Cir.1969)). 420 F.2d 924 due-process such a violation is an order re- quiring appeal the state court to resolve the 37. "speedy ap Courts that have considered a expeditiously. Id. at 721. peal” corpus issue on a writ of habeas have delay focused on whether the rendered the State, 35, (Tex.

35. See Bell v. 938 S.W.2d 53 person’s appeal nothing convicted "more Crim.App.1996) (capital retrial murderer’s See, meaningless e.g., than a ritual.” Chat re-sentencing twenty years and after on death Mancill, Amendment; man v. 280 Ga. 626 S.E.2d Eighth "any row did not violate delay delays 111 The in did not appellant's legiti have resulted Reed's case appeal "meaningless appellate mate entitlement the render his a benefits of ritual” be review prevailed. of his death The sentence. existence cause he 502 rely upon State the State and Reed Evidence Claim Both

2. Unavailable Azania,38 by a the Indiana Su- v. decision (1) he has suf argues pres- to the analogous is preme Court of his Sixth Amendment violation fered a Azania, defendant was ease. the ent because, investigative counsel’s function a murder. The capital of convicted they diligence, despite their remarkable the set aside recom- supreme court state miti possibly that some have determined juries of that Azania mendations two (2) available; gating longer evidence is no The tri- penalty. receive death should complete a inability mount that, his counsel’s given twenty- court then ruled al case, availability upon appellate delay in the Aza- present year defense based five speedy to a rights constitutional violates nia’s potential mitigating of all evidence if process would be violated (3) and due Amendment; feder and Eighth a death sentence.39 continued seek State al constitution demands consideration Court, in an Supreme inter- The Indiana evidence without evidence mitigating State,40 disagreed locutory appeal by the reliable youth childhood and no Reed’s delay nor and found “neither sentencing possible. verdict is from it that Azania suffer prejudice petition argues that its writ The State Thus, rights.”41 violates his constitutional It mitigation. “is not about the State could continue to seek may pre- is about whether trial court penalty. death-eligible for a clude the death ap- that Azania’s claim The Court noted That upon contingency.” offense based capital litiga- peared “novel” one that Reed contingency assumption tion, it two other state but noted murder, capital guilty be found

would rejected claims with courts had similar find, beyond would a reason- jury that a The Indiana little discussion.42 “ doubt, that he be a future able would still delay ‘may work to the noted ” that, danger, and because some witnesses capital especially in advantage,’ accused’s youth records from his childhood and that, held because litigation.43 court unavailable, hypothetical jury are delay occasioned Aza- most of was (which mitigation question not answer bore the burden of appeals nia’s with) forward and he made show- going favor. (Fla. (Ind.2007). v. also Rose 787 So.2d 38. 865 N.E.2d 2001) (rejecting capital-murder defendant’s a retrial claim that his death sentence on was 39. Id. at 996. punishment and unusual because cruel delay lengthy between his first death sentence apparently permits an Indiana law such later). years the retrial some interlocutory appeal by the court the State as it "on simply stated that the case was before appeal” (quoting Wingo, State’s without further discussion 43.Id. Barker jurisdiction. (1972)). Id. at See also of its S.Ct. 33 L.Ed.2d Lewis, (Ind.Ct.App. 883 N.E.2d explained appellate The court that the " 2008) (State's interlocutory appeal permitted litigation long capital 'takes so because R.App. 14). by Ind. P. effort afoot to slow it there is concerted down, legal system requires our because scrupulous Id. a death sentence review before ” (quot- can be carried Id. at 999-1000 out.’ State, ing Gallagher, Alex Kozinski & Sean Death: (citing v. 673 42. Id. at 999 Hitchcock State, Sentence, (Fla. 1996), 46 Case The Ultimate Run-On and Moore v. So.2d W. (1993)); (1995)). see 263 Ga. S.E.2d Res. L.Rev. affirmatively unavailable, that the State “hampered he may offer their former tes- ability” prosecute his those it appeals, timony.48 Reed argues many of his any delay records, would not attribute in the appel- records, school psychiatric late process the State.44 TYC records are longer no available sim- ply because of passage of so much Azania, Reed, like claimed time.49 But that would likely be true for twenty-five-year delay had resulted in the any sixty-year-old defendant in a capital- unavailability important mitigation wit- murder trial. The fact that Reed might But, noted, nesses.45 many as the court present be able to mitigation his the State’s witnesses were also now un- (if retrial) he guilty is found in the available, and the State bears the burden precisely the prefer form does proof guilt at the stage, and it must also not violate his rights.50 constitutional prove, beyond doubt, a reasonable ag- gravating during pun- circumstances evidentiary The hearings on Reed’s mo- phase. ishment While the unavailability of tion solely focused on evidence that Reed the defense witnesses “may says and evidence he cannot present, now not on what make it more difficult for Azania to defend evidence was still or available what evi- case, against the State’s we find that it dence is now available that did not exist at greater creates far difficulty for the State the time of the 1983 trial. Nor did those The Aza- proof.”46 meets its burden of hearings develop how certain “missing” nia court noted that the primary presented evidence could be “ ‘delay has said that is a two-edged sword. another form or through other witnesses. It is the Government that bears the bur- To the extent that judge’s factual of proving beyond den its case findings a reason- are based on those evidentiary able passage doubt. The of time may hearings, they incomplete are largely make it difficult or impossible for the Gov- hypothetical. ”47 carry ernment to out this burden.’ Furthermore, mitigation not all evidence present same is true in the case. equal. is created While evidence of child- significant mitigation difficulties,

Reed offered evi- hood a turbulent upbringing, and, dence the 1983 trial if youthful the witnesses psychiatric crimes and diagnoses who testified at that presently certainly are are relevant and admissible in 44. Id. 1003. 49. There evidence in this case that the intentionally destroyed these records in 45. Id. at 1006. Azania's counsel noted that they bad faith so that would not be available died, Azania's mother and his aunt had both Youngblood, Reed. See 488 U.S. Arizona prior spiritual as well as his advisor. 51, 57-58, "[M]any people with whom Mr. Anzania (1988) (holding "poten- that the destruction of community public worked in the around in- tially useful” evidence does not amount to a prior terest issues to his arrest cannot be due showing violation without a could, they found. Even if the value of their faith”). the State acted in "bad testimony concerning Mr. Azania’s achieve- substantially ments will be reduced because See Valle 109 S.W.3d passage of the of time.” Id. at 1008. ("The (Tex.Crim.App.2003) capi- fact that [the Id. at 1009. present tal-murder was not able to defendant] [mitigation] case in the form he desired (quoting Id. at 1010 United States v. Loud does amount to constitutional error when Hawk, 302, 315, prevented presenting he was not (1986)). L.Ed.2d 640 jury.”). substance of his defense to the 804(b)(1). 48. Tex.R. Evid. sixty-year-old society, heavy a to and that a of would be punishment phase the (should these Nei- of burden under circumstances. guilty), there be a verdict man ther an evidentia- Reed nor bear significance might pale evidence to that issue, and ry mitigation burden on the behavior, recent evidence of more be- the may compelling Reed mount most liefs, A man young and attitudes. with sixty-year-old for as a man who (such mitigation of crime as long record adolescent problems prior has overcome his and made had) may rely upon explain- have to Reed in the society some contribution to his rationale for that con- genesis the and of intervening years reflection.51 Given may hope jury sympa- and that the duct counsel, we diligence the of his resourceful incorrigibility. his An thize with older able, that he if do doubt would be may changed show he has his man necessary, mitigation to mount an effective danger to longer and is no others. spots case, jury appropri- and that a would make example, psychiatrists For testified ate for witnesses allowance records and trial, a “sexually the 1988 that even devi- longer that are no available.52 “anti-personality man with disorder” ant” experience a violence be- would “burnout” importantly, More the issue of ages thirty forty. of and tween adequacy mitigation of Reed’s case is past has available evidence of the now ripe for review. The thirty years may his which character ripeness pro held doctrine dramatically for the have altered better. “judicial tects until against interference rehabilitation, present of re- Evidence ... has been a[ ] decision formalized significant- and remorse be demption, by in a way its effects felt concrete ly powerful mitigation more evidence than parties.”53 whether challenging To decide forty of a childhood some to tales troubled adjudication, ripe an issue is for we must fifty years ago. oppor- Reed now has the “evaluate both fitness of the issues tunity persuade jury to he has judicial hardship decision and risen, ashes, like Phoenix from the withholding and parties of court consideration.” wholly person different than the become 54

man he was of the of Reed’s adequacy issue prove “fit” mitigation judicial It is State’s burden case is not deci- Here, future danger presented. capi- Reed would still constitute a sion before it is dence, pres- jury all of make an 51. Reed seems to assume that we believe will appropriate allowance fact that his ently his for the unavailable evidence from childhood mother, aunt, prior spiritual advisor youth mitigating, be but that is not And, course, living. Indeed, longer are Aza- of necessarily given his so. extensive opportunity presenting nia will have the youth, during quite criminal activities his it is remorse, testimony evidence of and the would, possible that the evidence unavailable spiritual current advisor and others as balance, aggravating rather than miti- accomplishments and contributions gating. things remembrance Sometimes incarcerated. while tea past is not all and madeleines. (internal omitted). Id. citations Azania, at 1009. 52. See 865 N.E.2d Gardner, 53. Abbott Laboratories 387 U.S. trial, 136, 148-49, penalty phase At a new we are confi- dent, (1967), Azania grounds will be able to assemble a on other ano overruled Calif Sanders, highly presentation credible those as- pects upbringing community of his in- L.Ed.2d mitigating volvement that are entitled weight. present If he Id. elects to this evi- 87 S.Ct. 1507. seeking pretrial tal-murder defendant is trial on the merits “[i]f criminal defen declaratory judgment any mitigation dant thinks that an action of the state might that he mount would necessari trial court is deprive about to him of a ly inadequate any pro and therefore federal right constitutional there is ev would, spective death sentence if it oc ery reason for his following proce state curred, Amendment, Eighth violate the the dure in making known objection.”58 his Amendment, Sixth and the Due Process Finally, the dissent argues that Reed’s assumptions simply Clause. “These are due-process claim analogous to that in jury not warranted before a has consid volving a pretrial challenge to an indict in present ered the evidence case and ment speedy-indictment based claim. rendered a verdict.”55 We put do not As Judge aptly points Keasler out in his cart before horse: “a defendant has concurring opinion, this situation is not wrongful claim of wrongful conviction or analogous to that situation. In United sentencing before he has even gone Marion,59 States v. Supreme trial.”56 adequacy efficacy noted that mitigation judged case cannot be [T]he Government concede[d] actually unless he has been convicted of Due Process Clause of the Fifth Amend- capital murder and sentenced to death.57 ment require dismissal of in- Any pretrial mitiga determination of that dictment if it were shown at trial that necessarily tion case is hypothetical and pre-indictment delay in this case unlikely fairly reality plays reflect as it prejudice caused substantial appel- out in an actual trial. we in explained As rights lees’ ato fair trial and that the Fine, Lykos v. delay anwas intentional device to gain A trial on the merits is “the main event” tactical advantage over the accused.60 system in our American justice which the prosecution pres two-pronged First, defense That is a test: ent evidence and battle do to reach a defense delay must show at trial that the did, presumptively fact, accurate and reliable re prejudice cause substantial particular trial;61 sult each right second, case. At that ato fair Fine, Lykos 55. See v. precluded 330 S.W.3d at 916. raising defendants were not 326, post-trial. that claim Id. at 92 S.Ct. 455 Id. at 917. ("Events of the trial demonstrate actual prejudice, present but at appellees’ time "[njeither (noting 57. See id. at 918-19 due-process speculative pre claims are judges judges nor on this Court sit as a mature.”); Lovasco, see also United States moral appropriateness over the 783, 431 U.S. n. S.Ct. penalty. We can determine (1977) ("the L.Ed.2d 752 District Court constitutionally whether it been imposed should have deferred action on the [defen by jury specific after a conviction and sen- pre-indictment motion to dant’s] [for dismiss tence.”). trial, delay] until after at which time it could (quoting 58. Id. at 919 Wainwright Sykes, prejudice have assessed to the [defendant] 72, 90, trial.”); light 53 L.Ed.2d events United States v. (1977)). Crouch, (5th 1996) (en 84 F.3d Cir. banc) (rejecting due-process pre-in- claim of 59. 404 U.S. delay brought dictment before trial on the merits; reported "We are aware of no federal appellate decision since Lovasco has sus Id. at 92 S.Ct. 455. pretrial preindictment tained a dismissal for Marion, delay Court denied re- where the statute of limitations had not run.”). pretrial setting, lief in the but noted changes the law predicted the the dramatic government show that defense must concerning challenges between peremptory its indictment for the intentionally delayed delay pre-indictment and 2005. advantage gaining a tactical purpose of addressing for or provide support cases only over It is after the the defendant.62 claim in a ruling due-process on Reed’s possible actual —not defendant has shown pretrial setting. adversely that af- potential prejudice or — defense, process that the fected his due sum, failed to Reed has offer adjudication.63 dis- ripe issue is for As authority lawful any legal or precedent above, any Reed has not cussed shown pretrial declaratory a support which would mit- prejudice actual substantive to his the State should forbid judgment that igation yet pre- because he not case in a seeking penalty den law, Second, as a of sented it. matter potentially capital-murder trial when some the State cannot demonstrate that are no longer witnesses useful records and intentionally purposely delayed ap- or the there is no un available.66 Because basis pellate purpose in this case for the process pretrial Texas a eviden- der law to conduct advantage him in gaining of a tactical over adequacy the tiary hearing to determine of Reed, State, It the retrial.64 was not mitigation capital-murder pro in a case appellate procedures, who those invoked ceeding, that we conclude showing been no that the there has to legal does not have conduct appellate faith declaratory State acted bad its make such a hearing such or Fine, persuasively argued Lykos v. is judgment. duties.65 It cannot be As in “[h]e have, have, acting beyond scope the of his lawful au- that could or should Crouch, (not Marion, & n. 65. See 84 F.3d at 1514 404 U.S. at S.Ct. 455. attempt catalogue that to all it need Lovasco, 431 U.S. at 97 S.Ct. 2044 possible “impermissible, purposes faith bad stating (explaining “proof Marion delay,” suggesting purpose but intentional process a due claim prejudice makes actual render evidence favorable to “harass" or ripe adjudication”). concrete included, the would be defense unavailable affirmatively strengthen delay while prejudice generally a (“proof See id. be). government's would not necessary a due but not sufficient element of claim, process process inqui due and ... ry delay Quinones, consider the reasons for the as must 66. Reed United States also cites accused.”); prejudice see well as Cir.2002), (2d proposition F.3d for the Crouch, ("[F]or prein- 84 F.3d at 1514 also determine, pre- in the trial court delay to violate the due dictment government setting, whether could accused clause it must substantial, cause the case, penalty. in that seek the But death prejudice, delay actual but upon a facial attack defendant mounted intentionally been undertaken must also have statute, obviating reli- federal death purpose gaining government for the upon evidentiary any pretrial ance factfind- advantage over the accused in some tactical ing. Id. Second Circuit at 58. The decided contemplated prosecution for some or pure legal question ripe was this purpose.”); impermissible, bad faith other precisely depend it did not review because (Tex. Spence v. 795 S.W.2d 749-50 might upon be introduced at facts (rejecting, Crim.App.1990) after trial and sen novo, Then, reviewing legal trial. issue de tencing, capital-murder claim of defendant's it trial court and held that the reversed the pre-indictment delay; defendant failed to government to seek the death was entitled prove delay designed "intentional was penalty. Id. at 70. give advantage him” the State a tactical over what harm he as a and failed to show result). suffered thority.”67 indictment delay in case caused sub- th[e] stantial prejudice to [the defendant’s]

Therefore, the State has demonstrated a rights to a fair trial delay and that the was right conditionally clear to relief. We an intentional gain device to tactical advan- writ grant a of mandamus68 and direct the tage over the accused.” Looking at the Creuzot, Respondent, Honorable John prejudice component, the Court observed April to vacate and withdraw his order of that “proof prejudice of actual makes a due 20, precluding seeking the State from process claim concrete ripe adjudi- for penalty in this case. The writ of cation ....”2 It necessarily follows then mandamus from this Court will issue proof that the delay was “an inten- Respondent if the fails to with comply this gain tional device to a tactical advantage Court’s directive. accused,” over the or some identifiable type misconduct, KEASLER, J., government of is also a concurring filed a prerequisite purposes for HERVEY, ripeness.3 of opinion in which MEYERS and JJ., joined. Applying analytical here, this framework the judge trial here had

PRICE, J., no discretion to filed a dissenting opinion. precluded hold State was from KEASLER, J., concurring. seeking the death penalty when retrying because, believe, I separately write I Jonathan Bruce for capital murder. majori- different reasons from those of the law, As a matter of there has been no ty, that the State has a clear right to the purposeful intentional or by misconduct relief it seeks. State, and in the any absence of such misconduct, among There is no conflict us as to the applicability of the death adequate remedy whether the State has an ripe was not for consideration.4 law; it does not. But I believe that the That Reed’s first conviction ultimately was overturned, right State has a clear to the relief sought after spending decades in here because the trial lacked appellate courts, state and federal because authority to enter a ruling precluding the the State violated Batson v. Kentucky5 seeking State from the death penalty during Reed’s 1983 trial is not a sufficient retrial. The the United basis for attributing by misconduct recognized States has process explained due State. As in majority’s opin ion, “require the dismissal of the extraordinary indict- in developments Batson, Ohio,6 ment if it were pre- shown at trial that the law in Powers v. Mil ry 67. 330 S.W.3d at 919. delay must consider the reasons for as accused.”). prejudice well as the to the conditionally grant 68. Because we a writ of mandamus, id.; 51, petition we dismiss the Youngblood, State's 4. See 488 U.S. Arizona 58, prohibition. (1988) a writ of 109 S.Ct. 102 L.Ed.2d 281 ("unless a criminal defendant can show bad Marion, 307, 324, part police, faith on the of the failure United States v. U.S. (1971). preserve potentially 92 S.Ct. 30 L.Ed.2d useful evidence does not law.”). process constitute a denial of due Lovasco, 783, 789, 2. United States v. (1977). 5. 476 U.S. 106 S.Ct. 90 L.Ed.2d 69 (1986). ("proof prejudice generally 3. See id. nec- is essary sufficiency but not a element aof due 6. 499 U.S. 113 L.Ed.2d claim, process inqui- and ... the due Dretke,7 important point it is out beginning Finally, 1986 and ler-El 2005, provided any the basis for the Reed ending is in the same situation as other to set aside Reed’s Fifth Circuit’s decision capital individual tried later life for mur- law, as it 2009. The stands conviction penal- der where the State seeks the death trial, now, was not in effect at Reed’s likely It ty. highly that those individu- reasonably it cannot be said problems als will confront the same cited should, could, change predicted or have by poten- or Reed—the loss destruction procedural posture in the law. Given the mitigating tial evidence from childhood due case, which negates of this intentional to the of time. passage But such realities purposeful misconduct have used never been to bar was not authorized exercise Thus, pursuing a sentence of death. on pretrial discretion motion to here, I under the circumstances cannot preclude application pen death prevented conclude that Reed would be alty. receiving sentencing from a fair hearing. the majority’s reasoning ap- Some of foregoing, on the the State has a Based pears strikingly what I similar to have said clear to conditional relief. right mandamus overly proposi- here.8 But there are broad that I do with and agree tions are not to resolve this case. There no

required PRICE, J., dissenting issue, categorically reason to hold this Fine,1 Lykos In rel. State ex this relating pre-indictment or an issue to de- right that the State a clear Court held had be lay, may litigated pretrial never to mandamus relief because the trial court future, In the there setting. may be a beyond scope of lawful “act[ed] [its] litigation in which is proper. case such authority”2 conducting pretrial hear- why we opinions This is should write on 37.071, to Article determine whether grounds possible. I the narrowest As Texas Section of the of Criminal Code stated, already lack have it is the Procedure,3 statute, capital sentencing our misconduct takes this out of the could in a manner operate constitutional as realm of matters in which the trial applied capital to the defendant Thus, may exercise his I discretion. also Fine, Today, authority case. on inappropriate discuss any find it to mat- Court likewise holds that the trial court prejudice.9 related to There is simply ters altogether authority grant capi- lacked mitigation reason to detail what evi- pretrial tal defendant’s motion. While I available opine dence is and to about the Fine, accepting dissented in even its au- that a accord strength jury may that evi- purposes thoritativeness for of stare deci- The more the majority says dence. sis, I find it distinguishable now issue, the merits the underlying about view, my facts of case. In this appears it the more in this court rule on judicial authority had the exercising purely case was func- why rely solely pretrial preclude This is I on defendant’s motion to tion. the fact ripe that the issue is death and the that it penalty, ruling consideration. made (Tex.Crim.App.2011). 7. 545 U.S. 1. 330 L.Ed.2d S.W.3d Id. at 919. Ante, Maj. Op. 8. See at 505-06. 37.071, generally, § id.

9. See at 503-06. art. Proc. Tex.Code Crim. manifestly does not seem so incorrect to prejudiced has his ability to investigate subject present me to be prohi- as mandamus or substantial mitigating evi- dence that once existed that Accordingly, respectfully bition relief. I rele- vant to persuade jury impose a life dissent. essence, sentence. In he asserts that the Fine, party the real in interest was him, delay in retrying which he maintains Green, Jr., capital John Edward defen- is attributable to the aggressively State for County. dant in Harris In a pretrial mo- opposing his Batson claim7 all years these tion, purported he raised a applied” “as appeal, deprived him of a legitimate challenge validity 37.071, to the of Article posture defensive punishment phase that, argued Section 2. He pro- under that of his capital retrial. Whatever the merits vision, people “innocent have been will claim, of his I fail to why see be” executed in Texas.4 In a hearing on court lacked the to entertain it in motion, began Green to develop testi- a pretrial context. mony to the effect that the type of evi- It seems to me that Reed’s claim is likely dence to be capital adduced perfectly almost analogous to a defendant’s trial was of a kind that has led to the pretrial challenge to an indictment on the conviction of innocent defendants across delay basis that by caused fail- State’s country.5 The Court held that such timely ure to investigate and initiate the evidence is irrelevant to an applied” “as charges against prejudiced ability him statute, challenge penalty to the death and defense, to mount an effective in violation that the trial authority court lacked the to rights of his under the Due Process Clause a hearing presentation hold for the of such of the Fourteenth Amendment.8 The irrelevant evidence.6 I do not believe this Supreme clearly United States Court has holding dispositive of the instant matter. before,9 recognized such claims as have party The real in interest here is Jona- we.10 It is true that Court Reed, than capital Bruce another defen- question has so far reserved whether dant. He purport challenge does not to presented such claims be and dis- the constitutionality of Article 37.071 in posed pretrial of in a context.11 But the Instead, any way, shape or form. he ar- that, Fifth acknowledged Circuit has while gues that passage twenty-seven of might such claims best be carried over to years from the time he recently was most degree prejudice, any, so that the if convicted and to sentenced death until his by pre-indictment caused delay might presently retrial evident, scheduled after relief in become more certainly trial courts post-conviction federal habeas proceedings authority have the to entertain such claims Fine, Marion, 307, Lykos supra, 4. State ex rel. v. at 906. 9. See United States v. 404 U.S. 455, (1971); 92 S.Ct. 30 L.Ed.2d 468 United Lovasco, 2044, Id. at 912. States v. 431 U.S. 97 S.Ct. (1977); United States v. Gouv eia, 180, 192, 467 U.S. Id. at 919. (1984). L.Ed.2d 146 Kentucky, 7. Batson v. State, Spence 10. See 795 S.W.2d 749-50 L.Ed.2d 69 ( 1990); Tex.Crim.App. Ibarra v. 1999). XIV, (Tex.Crim.App. S.W.3d generally § 8. U.S. Const. amend. 1. See George Schmolesky, E. Dix & John M. Lovasco, supra, 11. United n. States Texas Practice: Criminal Practice and Proce (3d ed.2011). through §§ 28:33 28:38 97 S.Ct. 2044. dure pretrial setting, in a and in a does not mean a trial might appropri- pretrial setting ately grant extraordinary cases.12 relief to at- court lacks all make the view, my Judge the author- Creuzot had today goes con- tempt. on to motion, ity to Reed’s analogous entertain clude that “there is no basis in Texas law Clause, Due to predicated on the Process pretrial hearing to evidentiary to conduct preclude imposition adequacy mitigation of a determine the on delay. account of excessive capital-murder proceeding[.]”15 case in a But the Due Process Clause of the Four- asserts, Today as confidently the Court certainly binding teenth Amendment is on self-evident, if these were propositions Texas, I fathom why pro- cannot due mit- adequacy efficacy of Reed’s “[t]he in a cess does authorize trial court igation be judged case cannot unless to capital proceeding murder entertain actually capital mur- been convicted as in the claim such context of death[,]” der and to and that sentenced pretrial motion when it has been held to “[a]ny pretrial of that miti- determination pretrial litigation authorize of a motion to necessarily gation hypothetical case is prosecution an entire criminal dismiss unlikely fairly reality plays reflect as it alleg- prejudice the basis defense all out an actual trial.”13 It is not at me, matter, categorical edly pre-indictment caused clear as a inordinate “adequacy efficacy” delay. miti- of Reed’s gation never in the gauged case can mandamus/prohibition In order obtain evidentiary hearing course of a pretrial relief, the meet require State must two Judge such as here. Creuzot conducted First, ments. it must demonstrate that it may question And we likelihood while adequate remedy has no at law.16 I have that such a pretrial hearing typically will here, it so doubt has done for reasons suffice to accurate lay foundation for an second, explained the Court in Fine.17 But a capital determination whether defendant must also show that prevented marshaling has been an duty court has a to its ministerial rescind mitigation effective death ie., order, right the State has clear to penalty, say, categor- I not think we do can I the relief it seeks.18 This do not believe ically, impossible any it is more — State has Deciding shown. whether than the categorically Fifth Circuit could presents the instant case circumstances so say, process the context of a claim due extraordinary justify pre actually as to predicated pre-indictment delay, on cluding seeking State from prejudice simply can never be determined proceeding penalty requires judicial, without first trial.14 That it the exercise of a ministerial, will prove prejudice say— difficult assess not a I function. cannot often Crouch, Majority 12. v. opinion, United States 84 F.3d 15. at 506. (C.A.5 1996). Horner, See also State v. Young E.g., 16. State v. ex rel. Sixth Judicial (Tex.App.-Dallas S.W.2d Appeals, Court District 236 S.W.3d Crouch); d) pet. (citing ref Dix & Schmole Levario, v. (Tex.Crim.App.2007); Simon 28:38, sky, supra, (such § claims are (Tex.Crim.App.2009). S.W.3d appropriate pretrial "seldom resolution dismiss”). motions to Fine, supra, Lykos 17. ex rel. at 912-16. Majority opinion, 13. at 505. Young 18. State ex rel. v. Sixth Judicial District Levario, Appeals, supra; Simon v. Crouch, supra. supra. United States v.

5H today and the Court does not convince Mary HORN, Hugh Coleman, Ron Judge glaringly

me—that Creuzot was so Mar chant, Mitchell, Andy Bobbie J. manifestly wrong a due find Eads, Capacities presented violation the facts to him their on as Denton County way Judge there one rationally could and Commissioners of County, short, Ih judicial exercise his function.19 Denton Texas and Eric D. Stanley, though might Appellants, we take the view that he was motion, so, grant mistaken to if it was a of law. mistake “While trial court GIBSON, Appellee. Al duty upon

has a ministerial to rule a mo- properly timely tion that is presented No. 02-10-00300-CV. ruling, general to it for a it has no duty way ministerial to ‘rule a certain Texas, Appeals Court of ”20 Here, that motion.’ the trial court had Fort Worth. motion, to rule on Reed’s Aug. duty he had no deny ministerial it. reasons,

For I deny these Rehearing Overruled Nov. applications State’s for mandamus and

prohibition relief. Because the Court in- relief, grants

stead I respectfully dissent. suggest 19. The Court is mistaken to precedent could find no clear Court it, Judge judicial supporting required Creuzot’s determination was as is to overcome the necessarily extraordinary dictated or circumscribed deference that federal courts Quarterman, opinion pay judgments Fifth must to state court Circuit’s Reed v. under the (C.A.5 2007). Judge 504 F.3d AEDPA. Creuzot owed 484-88 See Ma- no such defer- jority opinion, (declaring judicial entity deciding ence to at other that the Fifth question “rejected the distinct of whether Circuit Reed’s due same claim in 2007”). Circuit, process rights by allowing would be violated argued In the Fifth now, seek some twelve-year delay that the from the time of his twenty-seven years since was last convict- 1983 trial until this Court’s resolution of his ed and sentenced to death. appeal direct in 1995 violated due prejudiced that it appeal somehow the direct grant The Fifth Circuit declined to Young 20. State ex rel. v. Sixth Judicial District itself. Appealability respect Certificate of with Appeals, supra (quoting State ex rel. claim, (Tex. this as a matter of federal Curry Gray, habeas cor- 726 S.W.2d Levarlo, pus review Crim.App.1987)); under the Antiterrorism and Effec- supra, Simon v. (AEDPA), (same). Penalty tive Death Act because it

Case Details

Case Name: State Ex Rel. Watkins v. CREUZOT

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 27, 2011

Citation: 352 S.W.3d 493

Docket Number: AP-76,594, AP-76,595

Court Abbreviation: Tex. Crim. App.