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Trial Court No. 97-CR-3010-E
Court of Criminal Appeals No. 73,098
Ex parte
JOHN BALTAZAR,
Petitioner
In The 148TH DISTRICT COURT Of NUECES COUNTY , TEXAS
(Petitioner's Proposed)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW ON PETITION FOR WRIT OF HABEAS CORPUS
(ARTICLE 11.071, V.A.C.C.P.)
I.
BACKGROUND HISTORY OF CASE
Petitioner was convicted of the offense of capital murder, in the District of Nueces County, and assessed the death penalty for the offense of murder. See Section 19.03(a)(8, Penal Code. The conviction and sentence of the Petitioner are presently pending on appeal.
On June 10,1998, the Court of Criminal Appeals entered an order appointing Attorney at Law Roy E. Greenwood as counsel for applicant under the provisions of Article 11.071, V.A.C.C.P.
Petitioner's Petition For Writ Of Habeas Corpus was filed in a timely manner. The state subsequently filed its Answer in this matter, and this court, after reviewing the pleadings of the parties, entered an order on July 8,1999, ordering several persons to file affidavits with regard to the allegations made by petitioner in this case. On or about August 30,1999, the state obtained and filed these affidavits with this court. Thereafter, this court determined that there were no unresolved fact issues" that needed to be resolved in an evidentiary hearing, and entered an order on October 11, 1999, making such a determination. This court further then instructed the parties to submit proposed findings of fact and conclusions of law to this court on or before November 10,1999,
II.
PETITIONER'S HABEAS ALLEGATiONS
The habeas corpus application filed by petitioner raises the following grounds for habeas corpus relief, to wit:
GROUND FOR HABEAS RELIEF NO.1
THE PETITIONER WAS DEPRIVED OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHEN HE WAS SUBJECTED TO AND ILLEGAL ARREST AND SEARCH AND SEIZURE, AND WHERE CRUCIAL EVIDENCE WAS SEIZED PURSUANT TO THAT ARREST.
GROUND FOR HABEAS RELIEF NO.2
THE PETITIONER WAS DEPRIVED
OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHTS UNDER ARTICLE 1, SECTION 10, TEXAS
CONSTITUTION, WHEN HE WAS SUBJECTED TO AND ILLEGAL
ARREST AND SEARCH AND
SEIZURE, AND WHERE CRUCIAL EVIDENCE WAS SEIZED PURSUANT TO THAT ARREST.
GROUND FOR HABEAS RELIEF NO.3
PETITIONER WAS DENIED
THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, AS GUARANTEED BY THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
GROUND FOR HABEAS RELIEF NO.4
PETITIONER WAS DENIED
THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, AS GUARANTEED BY ARTICLE
I, SECTION 10, TEXAS CONSTITUTION.
GROUND FOR HABEAS RELIEF NO.5
EVIDENCE OF CO-DEFENDANT RAMSEY GONZALES' "NEGOTIATED DEAL" WITH THE STATE WAS SUPPRESSED FORM THE DEFENSE, IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
GROUND FOR HABEAS RELIEF NO. 6
EVIDENCE OF CO-DEFENDANT
RAMSEY GONZALES3 "NEGOTIATED DEAL" WITH THE STATE WAS SUPPRESSED FORM THE
DEFENSE, IN VIOLATION OF ARTICLES I, SECTION 10, AND ARTICLES 14 AND 19,
TEXAS CONSTITUTION.
GROUND FOR HABEAS RELIEF NO.7
PETITIONER WAS DENIED
DUE PROCESS OF LAW, UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, WHEN THE STATE FAILED TO CORRECT THE FALSE TESTIMONY OF RAMSEY
GONZALEZ, MADE BEFORE THE JURY, AFTER HE DENIED THAT HE HAD BEEN "CHARGED"
AT ANY TIME AS A PARTY IN THIS CASE, AND FURTHER DENIED RECEIVING - ANY
"DEALS" FROM THE REPRESENTATIVES OF THE STATE, WHERE IT WAS ALSO SHOWN
THAT THE WITNESS WAS ON "JUVENILE PROBATION", AND THUS SUBJECT TO REVOCATION
OF THAT PROBATION SHOULD HE NOT COOPERATE WITH THE STATE
BY TESTIFYING AGAINST
PETITIONER. SEE DAVIS VS. ALASKA, 94 $.CT. 1105 ;GIGLIO VS. UNITED
STATES, 405 U.S. 150.
GROUND FOR HABEAS RELIEF NO.8
PETITIONER WAS DENIED
DUE PROCESS OF LAW, UNDER ARTICLE I, SECTIONS 14 AND 19, TEXAS CONSTITUTION,
WHEN THE STATE FAILED TO CORRECT THE FALSE TESTIMONY OF RAMSEY GONZALEZ,
MADE BEFORE THE JURY, AFTER HE DENIED THAT HE HAD BEEN "CHARGED" AT ANY
TIME AS A PARTY IN THIS CASE, AND FURTHER DENIED RECEIVING ANY "DEALS"
FROM THE REPRESENTATIVES OF THE STATE, WHERE IT WAS ALSO SHOWN
THAT THE WITNESS WAS
ON "JUVENILE PROBATION", AND THUS SUBJECT TO REVOCATION OF THAT PROBATION
SHOULD HE NOT COOPERATE WITH THE STATE BY TESTIFYING AGAINST PETITIONER.
SEE DAVIS VS. ALASKA, 94 S.CT. 1105; GIGLIO VS. UNITED STATES, 405 U.S.
150.
GROUND FOR HABEAS RELIEF NO.9
THE APPLICATION OF THE DOCTRINE OF "TRANSFERRED lNTENT," UNDER SECTION 6.04 (B)(2), PENAL CODE, IN A CAPITAL MURDER PROSECUTION UNDER SECTION 19.03(8),PENAL CODE, DENIES PETITIONER DUE PROCESS OF LAW AND SUBJECTS PETITIONER TO CRUEL AND UNUSUAL PUNISHMENT, UNDER THE 5TH, 6TH, 8TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
GROUND FOR HABEAS RELIEF NO.10
THE APPLICATION OF THE DOCTRINE OD "TRANSFERRED INTENT," UNDER SECTION 6.04 (B)(2), PENAL CODE, IN A CAPITAL MURDER PROSECUTION UNDER SECTION 19.03(8),PENAL CODE, DENIES PETITIONER DUE PROCESS OF LAW AND SUBJECTS PETITIONER TO CRUEL AND UNUSUAL PUNISHMENT, UNDER ARTICLE I, SECTIONS 10,13,14, AND 19, TEXAS CONSTITUTION.
GROUND FOR HABEAS RELIEF NO.11
PETITIONER HAS BEEN DENIED
THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL, AS GUARANTEED UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
GROUND FOR HABEAS RELIEF NO.12
PETITIONER HAS BEEN DENIED THE EFFECTIVE ASSlSTANCE OF COUNSEL ON APPEAL, AS GUARANTEED UNDER ARTICLE I, SECTION 101 TEXAS CONSTITUTION.
GROUND FOR HABEAS RELIEF NO.13
TRIAL COUNSEL FOR PETITIONER,
GRANT JONES AND MICKEY KOLPACK HAD NOT BEEN QUALIFIED AND CERTIFIED AS
COMPETENT TO DO DEATH PENALTY TRIAL WORK, AS IS
REQUIRED BY THE PROVISIONS
OF ARTICLE 26.052, V.A.C.C.P. AND THE ORDERS OF THE ADMINISTRATIVE JUDGES
OF THE FIFTH JUDICIAL DISTRICT OF TEXAS, JUDGE DARRELL HESTER, THUS RENDERING
THE THESE ATTORNEYS PRESUMPTIVELY DISQUALIFIED, AS A MATTER OF LAW, TO
REPRESENT PETITIONER AT TRIAL, THUS VIOLATING ARTICLE I, SECTION 10, TEXAS
CONSTITUTION.
GROUND FOR HABEAS RELIEF - NO.14
TRIAL COUNSEL FOR PETITIONER,
GRANT JONES AND MICKEY KOLPACK HAD NOT BEEN QUALIFIED AND CERTIFIED AS
COMPETENT TO DO DEATH PENALTY TRIAL WORK, AS is
REQUIRED BY THE PROVISIONS
OF ARTICLE 26.052, V.A.C.C.P. AND THE ORDERS OF THE ADMINISTRATIVE JUDGES
OF THE FIFTH JUDICIAL DISTRICT OF TEXAS, JUDGE DARRELL HESTER, THUS RENDERING
THE THESE ATTORNEYS PRESUMPTIVELY DISQUALIFIED, AS A MATTER OF LAW, TO
REPRESENT PETITIONER AT TRIAL, THUS VIOLATING THE SIXTH AND FOURTEENTH
AMENDMENT GUARANTEES OF THE UNITED STATES CONSTITUTION.
III.
NO EVIDENTIARY HEARING NECESSARY
This court, having reviewed the petitioner's application for writ of habeas corpus, and the attachments and exhibits thereto, and the Respondent State of Texas' Reply to the petition, and having reviewed their attached exhibits, concludes that no evidentiary hearings are necessary, and this court has entered an order dated October 11,1999, advising the parties that no evidentiary hearing that will be scheduled in this case.
The petitioner has requested an evidentiary hearing, but this court hereby denies said request for an evidentiary hearing on these issues.
IV.
TRIAL COURT'S FINDINGS OF FACT
Issues Nos. 1 - 2
Petitioner contends that his constitutional rights to be free from an illegal arrest, search and seizure were violated, under State and Federal constitutional principles.
1. This court finds that
no objection was made during the trial on the grounds of illegal arrest,
search or seizure, and therefore, this complaint has been "waived" for
the purposes of habeas corpus review.
2. The Texas Court Of
Criminal Appeals will have, in this habeas corpus review, the entire statement
of facts and record reflecting the evidence concerning the validity of
this arrest, therefore, if the Court of Criminal Appeals wishes to determine
that he arrest and search of petitioner were invalid, they may do so as
part of their habeas corpus review under Article 14.071 , and there is
no need for this court to make a separate "finding of law" concerning the
validity of this search, because the court of criminal appeals is not bound
by any rulings on questions of law entered by this court.
Issue No.3 and 4.
Petitioner contends in these two complaints that he was deprived of the effective assistance of counsel at trial, as guaranteed by state and federal constitutional principles. this court finds that the following facts are evident from this record:
1. Even though the offense
occurred on September 27,1997, the attorneys for Petitioner, having been
appointed on Qctober 6,1997, agreed to go to Trial and began the jury selection
on February 2,1998, a period of time barely four (4) months from the date
of the appointment. No motion for continuance was requested.
2. Counsel at trial did
not request the services of investigator in this case, even though there
were numerous witnesses mostly of Hispanic origin to be interviewed for
their testimony.
3. Counsel at trial did
not request the appointment of any expert witnesses to review and challenge
the State's evidence at guilt-innocence, i.e, either on expert testimony
concerning identification of the shoe prints found at the scene; nor any
expert witnesses on identification.
4. Mr. Jones, the lead
counsel interviewed the Petitioner personally only on two or three times
prior to the trial of this case, assigning his Second Chair Attorney, Mickey
Kolpack, to have all contacts with Petitioner.
5. with the exception
of the normal discovery motions, and a motion to suppress the identification,
no other substantial motions were filed by the defense.
6. There was an issue
concerning the admission into evidence of expert testimony concerning the
shoes worn by Petitioner at the time of the crime, linking him to the scene
of the crime, where such shoes had been obtained from Petitioner as a result
of illegal arrest, but where no motion to suppress was filed by trial counsel,
and where trial counsel admitted that the Petitioner personally asked him
to file such motion to suppress. See and Compare Jackson V. State
973 S.W.2d 954.
7. Trial counsel raised
an issue of proper identification procedure, at the pretrial hearing, during
which 3 witnesses identified Petitioner in the trial of this case, even
though all three witnesses had failed to make an identification of the
Petitioner in a photographic lineup within three days of the offense, and
the record shows that the witnesses did not participate in an actual personal
lineup procedure. Trial counsel not only made no objection to the witnesses
identification procedure during a pretrial hearing, but in fact affirmatively
waived any complaint about the reliability of the identifications.
5. There are four network
television stations in the Corpus Christi area, ABC, NBC, CBS and the local
Spanish network, from October 2,1997, the date of the arrest of petitioner,
until December 19,1997, the date that the pretrial hearing on identification
was conducted. The Marines family was watching television at the time of
the shooting incident occurred.
9. At no time during the
identification hearing did trial counsel Grant Jones, the lead attorney
for petitioner, ever ask any of the Marines family alleged eyewitnesses
whether or not they had been exposed to television news shows, or newspapers,
which portrayed a likeness, photograph or videotape of Petitioner. Further,
counsel specifically waived any complaint to the identification, even though
no questions were asked of the witnesses whether their identification had
been impacted by seeing television shows or reading newspapers prior to
the evidentiary hearing conducted.
10. On at least 31 occasions
during the jury selection in this case, counsel for Petitioner at trial
stated that he had "no objection" to the State challenging various jurors
for cause, thus preventing any such claim later on appeal or habeas corpus
that these jurors were not qualified or prejudiced to serve on this panel,
and further, the jury selection in this case reflects that counsel for
petitioner during the selection did, in fact, make seven (7) challenges
for cause to various jurors during the jury selection procedure, or objected
to challenges made by the state.
11. Grant Jones, the
lead counsel at trial for petitioner, was also appointed to represent petitioner
in the appeal of this case. The brief was due on behalf of appellant on
January 10,1999, and was, in fact, filed on January 8,1999, in a timely
manner. The brief filed raises only two issues, and raises no complaints
concerning jury selection procedures.
12. The State utilized
oral statements made by the Petitioner, while the petitioner was in jail,
charged with this offense, and after the petitioner had been appointed
counsel, to show the jury, during the punishment phase of the trial, that
the Petitioner was a member of the Texas Syndicate, a notorious Hispanic
criminal enterprise gang. The record affirmatively shows that Grant Jones
was appointed as counsel for petitioner on October 6,1997, six days after
the petitioner was arrested, and had requested counsel.
During the punishment
hearing, deputy Silva was called (Volume 23, p.80, et seq) who related
without objection that he had talked to petitioner, and that petitioner
head admitted being a member of the Texas Syndicate prison gang, with the
state offering said report of this conversation into evidence as State's
Exhibit No.58. No objection was made on any grounds to the admission
of this evidence.
13. Grant Jones, the
lead counsel at trial for petitioner never even considered having the Petitioner
interviewed by a mental health expert.
14. During the Trial
of this case, it was undisputed that the shooting incident in this matter
occurred at 10: 40 p.m. on September 27 1997. According to the evidence,
petitioner was, of course, under electronic monitoring on the evening of
September 27th. Counsel for petitioner never utilized any evidence with
regard to any attempt to perfect an imperfect alibi for petitioner.
15. Ramsey Gonzales testified
that he had been promised nothing for his testimony, yet the record reflects
that Ramsey Gonzales in fact was arrested, on October 6,1997, and charged
with capital murder in this case, and wound up giving two statements to
police. See Petitioner's Exhibits No.13 (10/2197) and 14 (10/6/97), with
their being in conflicts between statements. Vol.20, pages 25-81. However,
none of this information concerning the arrest, the charges, or Ramsey
Gonzales' attorney were brought out on cross-examination.
16. During the testimony
of Ramsey Gonzales , counsel for petitioner, on cross-examination, asked
Ramsey Gonzales if any consideration had been given to him a for his testimony,
i.e.,
"a deal" by the state.
The witness responded, on two separate occasions, that no such promises
or deals had been made. See Volume, 20 p.50-52. No further questions were
asked by Attorney Jones with regard to the background of this witness's
arrest, or the charges filed against him, or any negotiations that he had
with the representatives of the state.
17. Ramsey Gonzalez was
arrested and charged with this capital murder offense, and the evidence
further it shows, by his own admission, that he was present at the scene
of the shooting, and in fact, may have known in advance that a shooting
was to occur. However, at no time it did the defense ever request that
the Court instruct the jury that Gonzalez was an accomplice under the provisions
of the law. No request was made that the Court instruct the jury either
on the factual issue, or on the legal issue as to whether Gonzalez was
an accomplice. Therefore, this jury was permitted to accept the testimony
of Gonzalez without limitation.
18. There were
no jury charge complaints made about the court's instructions on the transferred
intent charges given to jury.
19. No Use of Provocation
Evidence By Petitioners Counsel was offered during the punishment phase.
Issues Nos. 5, 6, 7 and 8
In four separate complaints,
petitioner contends that the District Attorney's Office negotiated a deal
with state's witness Ramsey Gonzalez to testify against petitioner, and
that evidence of such a "deal" was suppressed from the defense counsel
and the jury, with Petitioner also claiming that Gonzales gave false testimony
before the jury concerning the lack of any such "deal". This court finds:
1. Ramsey Gonzales testified
for the State, and provided substantial incriminating evidence against
Petitioner.
2. Gonzales testmed that
he had been promised nothing for his testimony, and further denied that
he had ever been arrested or charged in this case. See Volume, 20 p.50-52.
3. The record reflects
that Ramsey Gonzales in fact was arrested, on October 6,1997, and charged
with capital murder in this case, and wound up giving a statement to police.
In fact, Ramsey Gonzales gave two separate statements, one on October 2nd,
and another on October 6, with the statements being in conflict.
4. The attorney for Ramsey
Gonzales, Mr. Kevin Hanna, related that the following circumstances occurred
with regard to the negotiations between counsel and the representatives
of the state in order to secure Ramsey Gonzales' testimony against Petitioner:
1. Sometime in October, 1997, Mr. Hanna was appointed by one of the local judges to represent Ramsey Gonzales, who had been detained in the local juvenile facility, and who was charged with the offense of capital murder.
2. The charge of capital murder filed against Gonzales involved the same transaction for which petitioner Baltazar was eventually charged, convicted and assessed the death penalty, and Gonzales was a witness for the state against petition &-Baltazar at the trial.
3. At the time of his appointment to represents, Gonzales was on some form of juvenile "probation", as Mr. Hanna was advised that there had been some possibility of the filing a motion to revoke his juvenile "supervision', due to the possibility of "alcohol violations" and other supervision terms violations.
4. According to Mr. Hanna, prosecutor Deanie King informed him that even though the state did not have sufficient evidence to prosecute Gonzales on a capital murder case, that they were still going to "keep the charge on him", so they could keep him in "protective custody", prior to his testimony against petitioner.
5. Hanna advised Gonzales, prior to the trial of petitioner, that he still may have to go before the juvenile judge for a revocation hearing on his juvenile probation situation.
6. Hanna indicated to me that he and Ramsey Gonzales spent a considerable amount of time with the District Attorneys office staff preparing Gonzales to be a witness at the trial of Johnny Gonzales, the co-defendant of petitioner. While Mr. Hanna did not know if his client had ever been to the District Attorney's office without his being present, several discussions were conducted with members of the District Aftorney staff about his future testimony in these capital murder trials.
7. Mr. Hanna indicated that he was not concerned about the criminal liability of Mr. Gonzales, at as he knew that the capital murder charges filed against Ramsey would either "be dismissed", or had "already been dismissed" at some point in the proceedings before Ramsey Gonzales testified.
8. Hanna made clear that these capital murder charges would be "dropped" against Ramsey Gonzales if he testified, therefore Hanna was on the opinion that Gonzales did not need any further active "representation" when he testified. As a result, Mr. Hanna did not appear to assist or advise his client Ramsey Gonzales during the trial of petitioner.
9. Mr. Hanna recalled that he did remember discussing this situation with co-counsel for petitioner, Mickey Kolpack, but that he did not recall this conversation as being of any particular length or substance.
10. Mr. Hanna specifically denied that any overt or specific promises were made to him, or directly to Mr. Gonzales in his presence, offering any consideration directly for his testimony against petitioner and/or Johnny Gonzales; however, it was obvious that Mr. Hanna knew that his client, Ramsey Gonzales, had in fact been arrested and charged with capital murder, and as a juvenile, could have received many years in confinement for his role in this murder, and that Gonzales was subject to some form of 'juvenile" probation "supervision" criminal liability, i.e. probation revocation, and that even though he did not believe that any specific "promises or deals" were made to him by the state, it is clear that Gonzales had been assured, in advance by representatives of the state prosecution, that his client would not be subject to further prosecution, if he testified against petitioner in these cases.
5. None of this was brought out by trial counsel Jones to impeach witness Ramsey Gonzales before the jury in this case;
6. The State ever make an attempt to correct the false impression given by Gonzales before the jury.
Issues Nos. 9-10
Petitioner contends, in
two separate complaints, that the jury instructions applying the law of
"transferred intent" to this capital murder prosecution deprived petitioner
of due process of law, and subjected him to cruel and unusual punishment.
1 This
court finds that no objections were made to the court's jury instructions
during the trial of this case, and that no such issue was raised in the
direct appeal of this case, thus these issue is being raised, for the first
time, on post conviction habeas corpus.
2. This court
finds that the questions presented by these two complaints are questions
of "law" and not factual questions, and thus, the Court Of Criminal Appeals,
in its habeas corpus review under Article 11.071, has the jurisdiction
to determine whether this jury charge was unconstitutional as applied to
petitioner in this case, and since such question is a "question of law",
any such findings of law made by this court are not binding on the Court
Of Criminal Appeals, thus this court declines to make any findings with
regard to these issues.
Issues Nos. 11-12
Petitioner contends, in two separate complaints, that he has been denied the effective assistance of counsel on appeal, in violation of State and Federal protections, because the failure of Grant Jones to properly brief and represent petitioner in the appeal of this case.
1. This court finds that the appeal of this case has just recently been affirmed by the Court of Criminal Appeals;
2. Because the Court Of Criminal Appeals has affirmed this conviction, this court does not believe it proper at to make any findings concerning "ineffective assistance" in a proceeding before the Court.
Issues Nos. 13-14
Petitioner contends, in two separate complaints, that it has not been shown that his trial counsel had not been properly qualified and certified under the provisions of Article 26.052, Texas Code Of Criminal Procedure, to represent petitioner in a "capital murder trial" of an offense occurring after September 1,1995.
1. This court finds that the provisions of Article 26.052 were applicable to this case, and that under those provisions, attorneys representing defendants in death penalty cases at trial are required by statutory mandate to be "certified" as competent to represent such death penalty defendants.
2. This court finds that, according to exhibits submitted to this court by the state, a committee of persons were impaneled by Judge Darrell Hester, Administrative Judge Of The Fifth Judicial District of Texas, at some time prior to this trial, pursuant to Article 26.052, Code Of Criminal Procedure, and a set of guidelines for qualifications of counsel were enacted by that committee. See Appendix C, p.1 of the Supplemental Answer filed by the state in this case.
3. According to the attached exhibits submitted by the state, an "Amended List" of attorneys qualified for appointment in death penalty cases, under Article 26.052 was certified, on or before November 24,1997, for attorneys in the Fifth Administrate District of Texas. See Exhibit C, pages 2-3.
4. On the list of qualified attorneys for Nueces County, Grant Jones has been certified as qualified for practice in death penalty cases in that County.
5. Mickey Kolpack, co-counsel in this case, sitting as second chair, has not been certified as qualified to take an appointment as lead counsel, in a death penalty case.
6. The exhibits mentioned above, submitted by the all state, do not reflect a date that these orders were entered or these qualifications lists were set, but there is a fax transmission date reflecting that these documents were in existence on November 24,1997.
V.
TRIAL COURT'S CONCLUSIONS OF LAW
This Court, after entering the Findings of Fact, above, now makes the following Conclusions Of Law with regard to these findings and the issues raised by petitioner, to wit:
Issues Nos. 1, 2,
1. This court believes that this issue has been waived for habeas corpus review, because no objection was made on the grounds of search and seizure or in the trial of this case.
2. However, in the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.
Issue No.3-4
1. This court finds that there are facts alleged by petitioner which, if true, would entitle petitioner to relief on a claim of denial of ineffective assistance of counsel.
2. In the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.
Issues Nos. 5-6-7-8
1. This court finds that there are sufficient facts alleged by the by petitioner which, if true, would entitle petitioner to relief on a claim of that the witness committed perjury and that evidence was pressed from the defense.
2. In the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.
Issues No.9-10
1. This court finds that no objections were made to the court's jury instructions during the trial of this case, and that no such issue was raised in the direct appeal of this case, thus these issue is being raised, for the first time, on post conviction habeas corpus.
2. This court finds that the questions presented by these two complaints are questions of "law" and not factual questions, and thus, the Court Of Criminal Appeals, in its habeas corpus review under Article 11.071, has the jurisdiction to determine whether this jury charge was unconstitutional as applied to petitioner in this case, and since such question is a "question of law", any such findings of law made by this court are not binding on the Court Of Criminal Appeals, thus this court declines to make any findings with regard to these issues.
Issues No.11-12
1. This court finds that there are sufficient facts alleged by the petition filed by petitioner which, if true, might entitle petitioner to relief on a claim of denial of ineffective assistance of counsel on appeal.
2. In the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.
Issues No.13-14
1. This court finds that there was no apparent violation of the provisions of Article 26.052, Texas Code Of Criminal Procedure, in that procedures were formulated for the qualifications of counsel in death penalty cases in Nueces County.
2. This court further finds that, even though there is no date on the exhibits showing exactly when the approval of the qualifications of attorneys to represent death penalty defendants was created, or that the list of attorneys so qualified in Nueces County were qualified prior to October 6,1997, the date that counsel was appointed to represent petitioner in this case, that these qualifications were in place and effective in November, 1997, prior to the trial in this matter, therefore this court the believes that since Grant Jones was so certified according to the statutory provisions prior to this trial, no substantial violation of the statue occurred.
3. This court finds that the questions presented by these two complaints are questions of "law" and not factual questions, and thus, the Court Of Criminal Appeals, in its habeas corpus review under Article 11.071, has the jurisdiction to determine whether this possible violation of Article 26.052, V.A.C.C.P. is worthy of review on habeas corpus; further, since such question is a "question of law", any such findings of law made by this court are not binding on the Court Of Criminal Appeals, thus this court declines to make any legal findings with regard to these issues.
V.
RECOMMENDATIONS TO COURT OF CRIMINAL APPEALS
This Court, considering the Findings Of Fact and Conclusions Of Law made herein, recommends to the Court Of Criminal Appeals that several issues raised in this Application For Writ Of Habeas Corpus present questions of possible Constitutional magnitude, under the provisions of the Federal and State Constitutions, therefore this Court recommends that he Court Of Criminal Appeals "file and set" this case to further consider the merits of these claims as presented by petitioner herein.
VI.
ORDER TO TRANSMIT RECORD
The Clerk of this Court is therefore ordered to prepare a transcript of this cause, including therein all the pleadings and motions filed by petitioner, all pleadings and motions filed by the state, including copies of all exhibits filed by the parties, the docket sheet, all orders of the Court in this case, the proposed Findings Of Fact and Conclusions Of Law filed by both parties, and the final ORDER of the Court herein, and transmit said transcript to the Court Of Criminal Appeals pursuant to the provisions of Article 11.071, Code Of Criminal Procedure, providing copies of this transcript to both the representatives of the state and to the counsel for petitioner.
It is so ORDERED, this the _________day of _____________, 19____.
____________________________________
JUDGE ROSE VELA, PRESIDING JUDGE
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