Maza, Richard Lee

No. PD-0873-15
Richard Lee Maza § Austin, Texas
v. § Court of Criminal Appeals
State of Texas § In Texas
Maza’s Petition for Discretionary Review (Oral
Argument Requested)
Identification of Judge, Parties, and Counsel
Trial Judge: Honorable Starr Boldrick Bauer
Appellant: Richard Lee Maza
The Other Party: State of Texas
Appellate Counsel for Appellant on Appeal and on Application for PDR:
Bob Mabry
Bob Mabry Attorney at Law PLLC
304 North Main Street, Office Six
Conroe, Texas 77301-3002
Appellate Counsel for Appellant on Appeal and on Application for PDR
Joshua Zientek
504 W. Lewis St.
Conroe, Texas 77301-2527
Trial Counsel for Appellant: Steve Fischer
139 Ocean Drive
Rockport, Texas 78382
August 17, 2015
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Trial and Appellate Counsel for the State: Samuel Boyd 'Sam' Smith Jr.
Assistant District Attorney, 36th
Judicial District
Court
P.O. Box 1393
Sinton, TX 78387
Michael Welborn
District Attorney, 36th Judicial
District Court
P.O. Box 1393
Sinton, TX 78387
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Table of Contents
Table of Contents ................................................................................................... iii
Index of Authorities .......................................................................................... iv-v
Statement Regarding Oral Argument…………………………………………..1
Statement of the Case .............................................................................................1
Statement of Procedural History………..………………………………………2
Grounds for Review............................................................................................1, 2
Argument .................................................................................................................2
Prayer for Relief…………………………………………………………………..3
Certificate of Service .............................................................................................13
Certificate of Compliance………………………………………………………14
Appendix…...………………………………………………………….………….4
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Index of Authorities
Cases
Alvarez v. State, 13-11-00773-CR (Tex.App.--Corpus Christi 2012)...................8
Bradfield v. State, 42 S.W.3d 350, 353 (Tex.App.—Eastland 2001, pet. ref'd) ...7
Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997)...........................................10
Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App. 1995) ...............................10
Dunn v. State, 997 S.W.2d 885, 891-92 (Tex.App.—Waco 1999, pet. ref'd) .......7
Ex Parte Brown, 205 S.W.3d 538 (Tex.Crim.App. 2006) ......................................9
Furman v. Georgia, 408 U.S. 238, 239 (1972) ............................................................5
Garcia v. State, 887 S.W.2d 846 (Tex.Cr.App.1994).............................................11
Garza v. State, PD-1596-12, (Tex.Crim.App. 2014) ................................... 11, 12
Gray v. State, 134 S.W.3d 471 (Tex.App.—Waco 2004) .......................................9
Harmelin v. Michigan,111 S.Ct. 2680, 115 L. Ed. 2d 836 (1991).............................6
Hicks v. State, 15 S.W.3d 626, 632 (Tex.App.—Houston [14th Dist.] 2000, pet.
ref'd) ..........................................................................................................................7
Hill v. State, 493 S.W.2d 847, 849 (Tex. Cr. App. 1973) .......................................6
Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.—Texarkana 1999, no pet.) .....7
Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.—Dallas 1994, pet. ref'd) .........7
Layton v. State, 280 S.W.3d 235, 238-39 (Tex.Crim.App.2009)..........................10
Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993) ................................10
Mathews v. State, 918 S.W.2d 666, 669 (Tex.App.—Beaumont 1996, pet. ref'd)
....................................................................................................................................7
Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App.2010) .....................................4
McGruder v. Puckett, 954 F.2d 313 (5th Cir.).......................................................6,7
Moore v. State, 54 S.W.3d 529, 542 (Tex.App.—Fort Worth 2001) .....................7
Osborne v. State, 845 S.W.2d 319 (Tex.App. —Houston [1 Dist.] 1992) ............9
Puga v. State, 916 S.W.2d 547, 549-50 (Tex.App.—San Antonio 1996, no pet.)7
Perinon v. State, 54 S.W.3d 848 (Tex.App.--Corpus Christi 2001)......................9
Reed v. Ross, 468 U.S. 1, 15-16 (1984).......................................................... 11, 12
Rezac v. State, 782 S.W.2d 869 (Tex.Cr.App.1990) ..............................................10
Roberts v. State, 327 S.W.3d 880, 883 (Tex.App. - Beaumont 2010) ......................4
Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App.2002) ...............................10
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Solem v. Helm, 463 U.S. 277, 290 (1983) .............................................................6, 7
Trevino v. State, 174 S.W.3d 925 (Tex.App.--Corpus Christi 2005) ....................9
Weems v. United States., 217 U.S. 349 (1910) .........................................................6
Statutes
Texas Code of Criminal Procedure Article 26.5 (g) ............................................4
Tex. Const. Art. 1 §13. .............................................................................................6
Rules
Tex. Penal Code § 22.021(e) ....................................................................................8
Tex. Penal Code §12.32 ...........................................................................................8
Tex. R. App. P. 33.1(a)(1)(A) .................................................................................10
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To the Court of the Court of Criminal Appeals of Texas:
Statement Regarding Oral Argument
You may or may not find that Maza’s treatment by the trial court was
inequitable and unjust— he received a 35-year sentence after having
completed approximately six and a half years of deferred adjudication
probation out of seven for having improperly touched a post-pubescent
girl who was more than three years younger than Maza when he was in his
twenties. At his motion to adjudicate three violations were demonstrated:
1. Over the years he had two dirty urinalyses for alcohol. In one
he admitted to drinking a beer with a relative and an
examination of the incident showed that, in fact, he had had
only the single beer.
2. The other dirty urinalysis he could not account for. He affirmed
and continues to affirm that he has no idea why any alcohol in
his system and denies drinking. Out of the approximately 70
UAs, those were his two dirty ones.
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3. He was implicated in benefiting in a scheme in which the
manager of a small grocery store admitted to marking pieces of
meat at commercially unreasonably low prices. Maza bought
some of the meat and stood accused of having been in league
with the manager so that he was liable for theft.
The trial judge ignored the prosecution, whose plea offers were at
first 29 years behind the trial court’s demand and later were only ahead of
the State’s second suggested bargain by about a factor of two.
Prior to Maza’s hearing, the trial judge stated numerous times out of
court in public communications and in court that she intended to give long
sentences to those who offended sexually against children. The judge rose
to the bench after Maza’s deferred adjudication.
Members of the court, if Maza’s sentence does not strike you as
overly harsh, deny oral argument, deny this petition. But if does not, then
oral argument will be very helpful to you, to discuss with you the ways
that Maza can be relieved without opening the gates to a flood of half-
meritorious attacks on trial judges’ long sentences which are within their
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sound discretion.
Statement of the Case
Maza pleaded true to two violations of his deferred adjudication
probation. The 13th Court of Appeals reformed the trial court’s judgment by
removing his obligation to pay attorneys’ fees and otherwise affirmed,
largely on the ground that as an intermediate appellate court, decisions
from this honorable court of criminal appeals prevented it from giving him
any other relief. Maza appeals to this honorable court of criminal appeals
for a shorter sentence.
Statement of Procedural History
The 13th court of appeals handed down its opinion June 11, 2015. No
motion for rehearing was filed
Grounds for Review
1.
Maza’s trial judge’s behavior at his motion hearing deprived him of
his liberty without due process of law.1 The record shows that she was not
1 U.S. Const. amend. vii.
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impartial at the hearing. She was on record as intending to be harsh to
“child sex offenders” before the hearing. Her sentencing decision was
made without reference to any argument of counsel for the State or for
Maza or any evidence at either of the proceedings save what his original
charge was.
2.
Maza’s trial judge deprived him of his liberty other than by due
course of the law of the land.2 The record shows that she was not impartial
at the hearing. She was on record as intending to be harsh to “child sex
offenders” before the hearing. The record shows that her sentencing
decision was made without reference to any argument of counsel for the
State or for Maza or any evidence at either of the proceedings save what his
original charge was.
Argument
A court's arbitrary refusal to consider the entire range of punishment
constitutes a denial of due process.3 This is clearly what Maza’s trial judge
did.
The parties have not cited and research has not revealed any case
from the Supreme Court of Texas regarding the legal standard that applies
2Tex. Const. Art. I § 13
3McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983) overruled on other grounds by
De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004)
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when a party moves for recusal of a judge based on the judge's alleged bias,
prejudice, or partiality. This court has adopted the legal standard
articulated in the majority opinion in Liteky v. United States. See 510 U.S.
540, 542–56, 114 S. Ct. 1147, 1150–58, 127 L. Ed. 2d 474 (1994); Samson v.
Ghadially, No. 14–12–00522–CV, 2013 WL 4477863, at *5 (Tex.App.–Houston
[14th Dist.] Aug. 20, 2013, no pet.) (mem.op.); Sommers, 20 S.W.3d at 41;
Ludlow v. DeBerry, 959 S.W.2d 265, 271, 282–83 (Tex.App.–Houston [14th
Dist.] 1997, no pet.). Under this standard, if a party seeks recusal of a judge
based on the judge's alleged bias, prejudice, or partiality and if that party
does not show that the alleged bias, prejudice, or partiality arose from
events occurring outside of judicial proceedings, then the judge may not be
recused unless the judge has displayed a deep-seated favoritism or
antagonism that would make fair judgment impossible.3 See Liteky, 510 U.S.
at 550–51, 555–56, 114 S. Ct. at 1155, 1157–58; Sommers, 20 S.W.3d at 41, 44;
Ludlow, 959 S.W.2d at 271, 283. A bias, prejudice, or partiality arising from
events occurring outside of judicial proceedings arises from an
“extrajudicial source.” See Liteky, 510 U.S. at 550–51, 555–56, 114 S. Ct. at
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1155, 1157–58; Sommers, 20 S.W.3d at 41, 44.4
In this case the 13th court of appeals has so far sanctioned a departure
by Maza’s trial judge as to call for an exercise of the Court of Criminal
Appeals' power of supervision.5
On June 12, 2007, Appellant was charged by indictment with one
count of Aggravated Sexual Assault and two counts of Indecency with a
Child. (I C.R. at 2-3). Appellant entered a plea of guilty to Aggravated
Sexual Assault and was placed of deferred adjudication community
supervision for a period of seven (7) years. (I C.R. at 88). On September 20,
2013, the prosecution filed a Motion to Revoke Community Supervision. (I.
C.R. at 105-107). On November 26, 2013, the trial court, after a hearing and
evidence presented, adjudicated Appellant's guilt, entered a conviction,
and sentenced Appellant to thirty five (35) years in the Institutional
Division of the Texas Department of Criminal Justice. (I. C.R. at 140). On
November 26, 2013, the trial court certified Appellant's right to appeal. (I.
4 Fox v. Alberto, 455 S.W.3d 659, 666 (Tex. App. 2014), reh'g overruled (Mar. 3, 2015)
5 Tex. R. App. P. 66.3
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C.R. at 136). On December 30, 2013, Appellant filed a Motion for New Trial.
(I. C.R. at 146-149).
Appellant filed notice of appeal on February 25, 2014. (I C.R. at 154).
Appellant entered a plea of guilty to Aggravated Sexual Assault
and was placed of deferred adjudication community supervision for a
period of seven (7) years. (I C.R. at 88). Appellant completed nearly the
entire term of deferred adjudication communtiy supervision. (I R.R. at 19).
On September 20, 2013, the prosecution filed a Motion to Revoke
Community Supervision. (I C.R. at 105-107). A hearing was conducted in
which evidence was presented on November 26, 2013. (I R.R. at 3). A pre-
post sentence investigative report was prepared and entered into evidence.
(I R.R. at 5). Mr. Maza is a good person, who is a good father and good
husband. (I R.R. at 8). He is not someone that would be a problem for
society when released from custody. (I R.R. at 9). Mr. Maza's wife testified
that a sentence of seven (7) years would be best for Mr. Maza's children. (I.
R.R. at 14). Mr. Maza provided for his family, paying rent and other bills. (I.
R.R. at 14). Mr. Maza has four (4) children. (I.R.R. at 14). While on
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probation, Mr. Maza did not fail to report. (I R.R. at 21). Mr. Maza paid his
fines regularly was slightly delinquent. (I R.R. at 21). Mr. Maza was facing
new charges for allegedly stealing approximately one hundred dollars
worth of meat. (I R.R. at 22). Mr. Maza also tested positive twice for alcohol
use. (I R.R. at 22). Mr. Maza testified on his own behalf at the hearing. (I
R.R. at 26).
Appellant entered a plea of guilty to Aggravated Sexual Assault and
was placed of deferred adjudication community supervision for a period of
seven (7) years. (I C.R. at 88). On September 20, 2013, the prosecution filed
a Motion to Revoke Community Supervision. (I. C.R. at 105-107). On
November 26, 2013, the trial court, after a hearing and evidence presented,
adjudicated Appellant's guilt, entered a conviction, and sentenced
Appellant to thirty five (35) years in the Institutional Division of the Texas
Department of Criminal Justice. (I. C.R. at 140). During closing arguments
the prosecution asked the court to assess punishment at less than half of
what Appellant actually received. (I R.R. at 40). During testimony,
evidence was presented that there were plea negotiations in which the
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prosecution offered a an agreement in return for a plea of true to seven
years in prison, one fifth of the sentence assessed. (I R.R. at 13-14, 38).
B. PRESERVATION OF ERROR
Generally, to preserve error for appellate review, the appellant must
make a timely request, objection, or motion that states the grounds for the
ruling sought with sufficient specificity to make the trial court aware of the
complaint. TEX.R.APP. P. 33.1(a)(1)(A); Layton v. State, 280 S.W.3d 235, 238-
39 (Tex.Crim.App.2009). The Court of Criminal Appeals has recognized,
however, that an appellant may raise for the first time on appeal claims that
certain "fundamental" rights were violated. Saldano v. State, 70 S.W.3d 873,
887 (Tex.Crim.App.2002); see also Marin v. State, 851 S.W.2d 275, 279
(Tex.Crim.App.1993) ("All but the most fundamental rights are thought to
be forfeited if not insisted upon by the party to whom they belong. Many
constitutional rights fall into this category."), overruled on other grounds,
Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). In Saldano, the court
noted that the general error preservation requirement does not apply to
"two relatively small categories of errors: violations of rights which are
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waivable only’ and denials of ‘absolute systemic requirements.’ Such errors
may be raised for the first time on appeal." 70 S.W.3d at 888 (quoting Marin,
851 S.W.2d at 280); see also Marin, 851 S.W.2d at 279 (listing right to
assistance of counsel and right to jury trial as examples of " rights which
are waivable only" and laws affecting jurisdiction of trial court as examples
of " absolute systemic requirements")
In Marin the Court discussed three types of rights: 1) absolute
requirements and prohibitions; 2) rights of litigants which must be
implemented by the system unless expressly waived, 3) rights of litigants
which are implement upon request. Texas law of procedural default only
applies to the last category. Id.
Additionally, in Garza the Court of Criminal Appeals recognized that
both the Supreme Court of the United States of America and the Court of
Criminal Appeals excuses procedural default in such cases because to not
do so would be manifestly unjust. Id.; Reed v. Ross, 468 U.S. 1, 15-16 (1984).
In Reed the Supreme Court of the United States of America wrote:
[T]he failure of counsel to raise a constitutional issue reasonably
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unknown to him is one situation in which the [cause] requirement is
met. If counsel has no reasonable basis upon which to formulate a
constitutional question... it is safe to assume that he is sufficiently
unaware of the question's latent existence that we cannot attribute to him
strategic motives of any sort.... Accordingly, we hold that where a
constitutional claim is so novel that its legal basis is not reasonably
available to counsel, a defendant has cause for his failure to raise the
claim in accordance with applicable state procedures.
Id. This has been recognized as the Right Not Recognized Approach. Id.
(Cochran, J. Concurring).
Prayer
It is respectfully submitted and requested that for the foregoing
reasons, Petitioner Richard Lee Maza prays that this Honorable Court of
Criminal Appeals of Texas reverse the trial court’s judgment as to
punishment and remand for a new hearing.
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RESPECTFULLY SUBMITTED,
Bob Mabry
Attorney at Law
2002 Timberloch Place, Ste.
200
The Woodlands, Texas 77380
TBN: 12750980
Telephone: 936.228.7796
Facsimile: 866.394.3113
Joshua Zientek
Attorney at Law
504 W. Lewis St.
Conroe, Texas 77301
TBN: 24063781
Telephone: 936.760.2889
Facsimile: 936.760.2892
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been faxed
to Appellee’s attorney at the following address on _______________:
William Dellmore
Assistant District Attorneys
Montgomery County District Attorney's Office
207 W. Phillips
2nd Floor
Conroe, Texas 77301
_____________________
BOB MABRY
Attorney at Law
2002 Timberloch Place, Ste.
200
The Woodlands, Texas 77380
TBN: 12750980
Telephone: 936.228.7796
Facsimile: 866.394.3113
______________________
Joshua Zientek
Attorney at Law
504 W. Lewis St.
Conroe, Texas 77301
Telephone: 936.760.2889
Facsimile: 936.760.2892
CERTIFICATE OF COMPLIANCE
I certify that a copy of the above and foregoing Appellant’s Brief has a
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word count of 2213 after excluding the Table of Contents, Table of Authorities,
Certifications and Cover Pages.
____________________________________
Bob Mabry
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Appendix
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Envelope Details
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Case # PD-0873-15
Case Information
Location Court Of Criminal Appeals
Date Filed 08/13/2015 12:08:31 AM
Case Number PD-0873-15
Case Description
Assigned to Judge
Attorney Bobby Mabry
Firm Name Bob Mabry, Attorney at Law, PLLC
Filed By Bobby Mabry
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name File and ServeXpress Global
Transaction Amount $0.00
Transaction Response
Transaction ID 10611150
Order # 006474473-0
Petition for Discretionary Review
Filing Type EFile
Filing Code Petition for Discretionary Review
Filing Description Maza's Petition for Discretionary Review
Reference Number 57707532
Sorry about technical problems which caused
Comments
lateness.
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
08/17/2015 The petition for discretionary review does not contain a copy of the court of appeals
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=e6fe4fb0-5243-4fb9-864e-c193b5785f63[8/17/2015 12:57:23 PM]
Envelope Details
opinion [Rule 68.4(j)]. The petition does not have attorney's signature [Rule
Other 12:53:17
PM 9.1(c)(1)]. Appellant's petition was due August 12, 2015; the petition was
transmitted 1 day late on August 13, 2015.
Documents
Lead Document 1.PDF [Original]
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=e6fe4fb0-5243-4fb9-864e-c193b5785f63[8/17/2015 12:57:23 PM]