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 i

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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

iii iv

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 US 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 iv

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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

v *1 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. *2 2

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 halfmeritorious attacks on trial judges’ long sentences which are within their *3 3 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. *4 4

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)

5 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 *6 6 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

7 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 prepost 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 *8 8 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 *9 9 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 *10 10 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 *11 11 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. *12 12

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

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 *14 14 word count of 2213 after excluding the Table of Contents, Table of Authorities, Certifications and Cover Pages.

____________________________________ Bob Mabry

Appendix Envelope Details Print this page

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]