Ex Parte Ruiz

Full title: EX PARTE ROLANDO RUIZ

Court: Court of Criminal Appeals of Texas

Date published: Jul 6, 2007

No. WR-27,328-03 (Tex. Crim. App. Jul. 6, 2007)

Opinion

No. WR-27,328-03

Delivered: July 6, 2007. DO NOT PUBLISH.

On Application for Writ of Habeas Corpus in Cause No. 92-CR-6718B from the 227^th District Court of Bexar County.

Per Curiam. Womack, J., filed a statement respecting the dismissal of the application. Holcomb, J., filed a statement dissenting to the dismissal of the application in which Johnson, J., joins. Price and Hervey, JJ., not participating.

ORDER

PER CURIAM.

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts in two claims that he failed to receive the effective assistance of counsel during his trial and post-conviction review. Applicant was convicted of capital murder on January 18, 1995. We affirmed the conviction and sentence on direct appeal. Ruiz v. State, No 72,072 (Tex.Crim.App. February 25, 1998). On September 15, 1997, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Ruiz, No. WR-27,328-02 (Tex.Crim.App. April 2, 2003). We have reviewed these claims and find that they do not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5. This application is dismissed as an abuse of the writ and the motion for stay of execution is denied. I join the Court's order dismissing the subsequent application. Ruiz asks us not to apply the statutory restriction on subsequent applications.¹ He alleges that he was denied effective assistance of counsel when his trial attorneys failed to present certain evidence at the punishment hearing, and his habeas counsel did just as badly by failing to raise that claim in his first application. In such circumstances, he argues, the restriction on subsequent applications cannot be used to leave an applicant without a remedy. I think this is a serious and unresolved question, but it is not presented in this case. The evidence in question was of two kinds: certain facts about the applicant's experiences during childhood and the opinion of a psychologist. Trial counsel hired the psychologist, considered his report, and chose not to call him at trial because his findings about the applicant would do more harm than good. This was not an unreasonable decision. The application does not allege that counsel knew of the facts about the applicant's childhood, nor does it demonstrate that counsel would have been unreasonable to decide that such facts would have been more harmful than helpful when the jury considered the issue of the applicant's being likely to commit criminal acts of violence in the future. Therefore, it seems to me, we do not reach the question: whether the unreasonable failure of a first habeas application to present meritorious claims could ever be surmounted in the courts of this state.

1 Code Crim. Proc. art. 11.071, § 5.

HOLCOMB, J.

DISSENTING STATEMENT

In the case before us, the applicant "presents the clear question of whether the State of Texas can protect a judgment which rests on ineffective assistance of trial counsel by providing habeas counsel who failed to function as post-conviction counsel in any meaningful sense."¹ Thus, the applicant in this case has suffered a violation of his Sixth Amendment right to counsel not on one but at both the trial and the state habeas levels of proceedings. Ironically, it was due to the ineffective assistance of counsel in the state habeas proceedings that further deprived the applicant from receiving any relief at the federal level, in spite of both the federal district court and the Fifth Circuit's recognition that applicant had been denied ineffective assistance by both his trial and state habeas counsels.² The present application is therefore this applicant's final means to obtain any meaningful redress for the significant deprivation of his Sixth Amendment rights that he has suffered during the lower court proceedings in this State. Unfortunately, and with all due respect, I feel this Court has misinterpreted the applicant's actual claim. The question presented is not only whether the applicant's trial counsel was ineffective in failing to present mitigating evidence at the punishment phase of his capital murder trial, but also whether he was ineffective in failing to investigate substantial mitigating evidence when they had reason to believe that it might exist. This failure to investigate could, if true, support a Sixth Amendment claim for relief, especially after Wiggins v. Smith, ³ upon which the applicant principally relies. Indeed, there does appear to be a significant reason for the trial counsel to have believed such evidence existed. Nevertheless, he failed to investigate, let alone bring any mitigating evidence to the jury's attention. Similarly, the state habeas counsel failed to discover, let alone bring such evidence to the Court's attention, when he filed the first application for writ of habeas corpus on this applicant's behalf. Given what the federal courts found to be obvious and glaring failures of both the applicant's trial and state habeas counsels, I believe that this applicant should at least have been given a chance to be fairly heard at this, literally final, stage of his proceedings. Since the Court declines to do so, I respectfully dissent.