Opinion
No. WR-41,168-11
Delivered: September 16, 2009. DO NOT PUBLISH.
On application for Writ of Habeas Corpus, Cause No. W296-80233-90 in the 366th District Court, Collin County.
PER CURIAM COCHRAN,.J., filed a dissenting statement in which PRICE and HOLCOMB, JJ., joined.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5. On September 7, 1990, Applicant was convicted of the offense of capital murder. The jury answered the special issues in such a manner that a sentence of death was imposed. This Court affirmed the conviction and sentence on direct appeal. Hood v. State, No. AP-71,167 (Tex. Crim. App. Nov. 24, 1993) (not designated for publication). Applicant's initial application for writ of habeas corpus was denied. Ex parte Hood, No. WR-41,168-01 (Tex. Crim. App. April 21, 1999) (not designated for publication). Applicant filed a subsequent application in the trial court on May 24, 2004. The subsequent application was dismissed. Ex parte Hood, No. WR-41,168-02 (Tex. Crim. App. April 13, 2005) (not designated for publication). Applicant filed a second subsequent application on June 22, 2005. We remanded to the convicting court for resolution of the claim. When the case was returned to this Court, we held that Applicant, in fact, had not met the requirements of Article 11.071, § 5, for consideration of subsequent claims and dismissed his application. Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007). On June 12, 2008, Applicant filed another subsequent application for writ of habeas corpus and an original application for writ of habeas corpus. In the applications, Applicant asserted that he was denied a fair trial because of an alleged romantic relationship between the trial judge and the prosecutor that Applicant claimed was "common knowledge" at the time of trial. We dismissed the Article 11.071 application and denied leave to file the original application. Ex parte Hood, Nos. WR-41,168-04 WR-41,168-05 (Tex. Crim. App. June 16, 2008) (not designated for publication). On June 17, 2008, we denied a second original application for writ of habeas corpus. Ex parte Hood, No. WR-41,168-06 (Tex. Crim. App. June 17, 2008) (not designated for publication). On August 20, 2008, the clerk of the 296th District Court forwarded a subsequent writ application to this Court as required by Article 11.071, § 5(b). This Court dismissed the application. Ex parte Hood, No. WR-41,168-09 (Tex. Crim. App. Sept. 5, 2008) (not designated for publication). On September 8, 2008, we received another subsequent writ as well as other motions in the case. In an order issued on September 9, 2008, this Court denied a motion to recuse and dismissed the subsequent application. We also determined that, because of developments in the law regarding nullification instructions, it would be prudent to reconsider the decision we issued in dismissing Applicant's second subsequent writ application. See Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007) (issue still on reconsideration before this Court). Accordingly, we granted his motion to stay his execution so that we could accomplish that task. Applicant makes one allegation in the instant subsequent application: that he was denied a fair trial because of a romantic relationship between the trial judge and the prosecutor. On November 19, 2008, we remanded this cause and ordered the trial court to gather evidence and make recommendations on two issues: (1) whether the doctrine of laches bars the consideration of Applicant's claim; and, (2) whether Applicant meets the dictates of Article 11.071, § 5. We have reviewed the application and the trial court's recommendations. We find that the allegation fails to satisfy the requirements of Article 11.071, § 5(a). Accordingly, the application is dismissed as an abuse of the writ. Tex. Code Crim. Proc. Art. 11.071, § 5(c).
OPINION
I respectfully dissent to the Court's Order dismissing applicant's claim alleging that he was denied a constitutionally fair trial because of a romantic relationship between the trial judge and the prosecutor. I believe that, based upon newly developed facts, applicant has satisfied the requirements of Article 11.071, § 5(a). I would remand this application to the habeas court to make further factual findings and recommendations concerning the merits of the claim. On November 18, 2008, we remanded this application to the habeas court to gather evidence and make recommendations on (1) whether the doctrine of laches barred consideration of applicant's claim; and (2) whether applicant had otherwise met the dictates of Article 11.071, § 5(a). The habeas judge complied, gathering the evidence and making extensive findings of fact that are supported by the record. Although one might disagree with some of those findings, I am not at liberty to disregard them when they are supported by the record. Those factual findings included the following:• Judge Verla Sue Holland of the 296th Judicial District Court of Collin County, presided over Hood's capital murder trial.
• The elected District Attorney of Collin County, Thomas S. O'Connell, Jr., participated in the prosecution of Hood for capital murder.
• Judge Holland and Mr. O'Connell were involved in an intimate sexual relationship prior to Hood's capital murder trial.
• Prior to the capital murder trial-and during the appellate and post-conviction proceedings-Judge Holland never disclosed her relationship with Mr. O'Connell to Hood.
• During these proceedings, Mr. O'Connell never disclosed his relationship with Judge Holland to Hood.
• Judge Holland and Mr. O'Connell took deliberate measures to ensure that their affair would remain secret. . . . Mr. O'Connell could not recall telling anyone, except possibly his sisters, about his romantic relationship with Judge Holland. Judge Holland told no one.
• Based only on rumors of an affair, Hood's former habeas counsel decided to look into the matter prior to filing the initial habeas application. In 1995-96, Hood's investigator, Tena S. Francis, conducted extensive records research. She reviewed divorce records, records obtained from the Office of Elections Administration, and case files in the Collin County District Clerk's Office. Ms. Francis interviewed members of Hood's defense team, attorneys practicing in Collin County, and Judge Holland's former husband, Earl Holland. She attempted to interview Judge Holland's bailiff, but he refused to discuss the judge's personal life with her. She contacted the State Commission on Judicial Conduct.
• Ms. Francis was unable to develop any concrete evidence of the affair.
• On June 27, 2005, shortly before Hood's scheduled execution date, A. Richard Ellis, former counsel for Hood, contacted Judge Holland. She refused to comment on the allegations that she had a romantic affair with Mr. O'Connell. On the same day, Mr. Ellis contacted Mr. O'Connell. Mr. O'Connell denied that he had a romantic affair with Judge Holland.
• On June 3, 2008, Hood received the affidavit of Matthew Goeller, a former assistant district attorney in Collin County, Texas.
• Mr. Goeller's affidavit marked the first time that a former employee of the District Attorney's Office who had worked there during Mr. O'Connell's tenure was willing to speak on the record and under oath about the relationship.
• Mr. Goeller stated that the romantic relationship between Judge Holland and Mr. O'Connell was ongoing when Mr. Goeller began working at the District Attorney's Office in 1987. Mr. Goeller could only assert that the relationship was "common knowledge," not that he personally knew of any romantic interactions.
• In June 2008, counsel for Hood retained Toni Knox, a private investigator. She reviewed the work previously conducted by Ms. Francis and then interviewed approximately two dozen individuals in the Collin County area who seemed likely to have some knowledge of the Holland-O'Connell affair.
• The witnesses could only attest that they had heard rumors about the affair.Thus, all of applicant's efforts had resulted in nothing but the development of unsubstantiated rumors. Rumors and gossip, no matter how widespread, how detailed, or how extravagant, are not facts. It was not until applicant obtained a court order requiring Judge Holland and Mr. O'Connell to give depositions pursuant to Rule 202 of the Texas Rules of Civil Procedure that he was able to establish the actual facts that underlie his claim. Rule 202 permits a person to petition a court to take a deposition to perpetuate a person's testimony for an anticipated civil lawsuit or to investigate a potential claim or suit. Applicant contended that he had "exercised extraordinary diligence" in making his Rule 202 request, which required "painstaking research" and "substantial time and money." He argued, Because counsel was unaware of anyone previously attempting . . . a [Rule 202] strategy, the chance of success was remote. An attorney exercising ordinary care and reasonable diligence would not have felt compelled to expend limited resources on such a speculative undertaking. The State argues that Civil Rule 202 has been in existence since 1999, and thus applicant could have availed himself of it at an earlier time. But the State does not point to any law or any instance in Texas criminal proceedings in which this rule has been invoked, used, or allowed. Whether the 366th Judicial Court had the legal authority to order such depositions is not before us. Suffice it to say that this procedure was a most extraordinary and unusual one. It is surely not (and should not become) the standard by which to measure reasonable diligence. It was only when the depositions of September 8, 2008, established the fact of a previous, sporadic, intimate relationship between the trial judge and the prosecutor, that applicant could legitimately assert his claim. He did so in this habeas application, filed on September 25, 2008, which we remanded on November 19, 2008. We remanded the case for the habeas judge to determine whether the equitable doctrine of laches should bar applicant from raising this claim some eighteen years after his trial when his trial attorneys admitted that they had been aware of the rumors and gossip concerning this relationship even before the trial and consciously decided not to file a motion to recuse. Habeas corpus is an equitable doctrine of relief. Laches is equally an equitable doctrine which may, at times, preclude habeas relief. The equitable doctrine of laches bars review of a claim when the claimant has delayed in raising an issue and that delay has prejudiced the opposing party. To establish laches as a bar in a habeas proceeding, the State has the burden to "(1) make a particularized showing of prejudice, (2) show that the prejudice was caused by the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law." In this case, the doctrine of laches may be disposed of on the third prong, that of reasonable diligence. Here, it is clear that applicant's trial attorneys were aware, before the 1990 trial, of the "common knowledge" rumors and gossip concerning the personal relationship, but it seems equally clear from the habeas record that applicant's attorneys did not know whether those rumors were true, either at the time of the trial or at the time that applicant filed his earlier habeas applications. Based upon the habeas judge's factual findings outlining the considerable effort, time, and money that applicant spent in attempting to verify or dispel the rumors, the habeas judge concluded that applicant had exercised reasonable diligence in attempting to establish the factual basis of his claim. The habeas judge also concluded that applicant's "unsuccessful efforts to obtain concrete evidence" of the relationship could not be attributed to his failure to exercise reasonable diligence, but was "explained by the principals' longstanding efforts to keep the affair hidden." These conclusions are supported by the record. The State filed objections to the habeas judge's findings, pointing out that the habeas judge did not fully account for all of the evidence, such as (1) the failure of the trial attorneys to file a motion to recuse before trial based upon the rumors, or (2) a more recent affidavit by Mr. O'Connell. The State also argues that it has made a particularized showing of prejudice caused by applicant's delay in presenting his claim because the passage of time "allowed Mr. O'Connell's memory to fade." But, because the habeas judge has affirmed the existence and extent of a prior romantic relationship, the State fails to show that Mr. O'Connell's memory lapse might be determinative to the claim. In sum, I would accept the habeas judge's findings of fact (though not his conclusions of law) as being supported by the record, and I would remand this case to the habeas court for development of the merits of applicant's claim.