i 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)

I dentification of Judge, Parties , and Counsel

Trial Judge: Honorable Starr Boldrick Bauer
Appellant: Richard Lee Maza
The Other Party: State of Texas
Ap pellate 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 78382ii

ii Trial and Appellate Counsel for the State: Samuel Boyd 'Sam' Smith Jr. Assistant District Attorney, 36 th Judicial District Court P.O. Box 1393 Sinton, TX 78387

Michael Welborn District Attorney , 36 th Judicial District Court P.O. Box 1393 Sinton, TX 78387iii

iii 

## Table of Contents

Table of Contents

................................ ................................ ................................ ... ii i

Index of Authorities

................................ ................................ .......................... iv

- v Statement Regard ing 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

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ... ... ... ... .4iv

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 (T ex.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 (5 th Cir.)

................................ ....................... 6,7 Moore v. State , 54 S.W.3d 529, 542 (Tex.App.

— Fort Worth 2001)

..................... 7 Osbor ne 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 R ezac 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)

............................... 10v

v 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)

................................ ................................ ................. 101 To t he Court of the Court of Criminal Appe als of Texas :


## Statement Regarding Oral Argument

You may or may not find that Maza ’ s treatment by t he trial co urt was
inequitable and unjust

— he received a 3 5

- year sentence after hav ing
completed approximately six and a ha lf 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 demonstrate d :

1. O ver 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 incide nt showed that, in fact, he had had
only t h e single beer.

2. The other dirty urinalysis he could not account for. H e 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. M aza bought

some o f 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

fir st 2 9 years behind the trial court ’ s demand and l ater 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 lo ng

sentences to those who offend ed sexually again st children. T he 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. B ut 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 ga tes to a flood of half

meritorious attacks on trial judges ’ long sentences which are within the ir3

3 sound disc retion

. 

## Statement of the Case

Maza pleaded t rue to two violations of his deferred adjudication
probation

. The 13 th 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 cou rt of criminal appea ls preve nted 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 13 th 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 b eha vi or a t hi s mo tion he ar in g deprived him of his liberty without due process of law. 1 T he record sho ws that she was not

1 U.S. Const. amend. vii.4

4 impartial at th e hearing. She was on rec ord as intending to be harsh t o

“ child sex offenders ” before the hearing. H er sentencing decision was made without reference to any argument of counsel for the State or for Maza or any evidence at either of the proceeding s sav e what his original charge was.



### 2.

Maza ’ s trial judge deprived him of his liberty ot her t ha n b y d ue
c ou rs e of the law of th e lan d. 2 T he record sho ws that she was not impartial at th e hearing. She was on rec ord as intending to be harsh t o “ child sex offenders ” before the hearing. T he record sho ws 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 proceeding s sav e what his original charge was. 

### Argument

A court's arbitrary refusal to consider the e ntire range of punishment

constitute s a denial of due process

. 3 This is clear ly 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

2 Tex. Const. Art. I § 13

3 McClenan v. State , 661 S.W.2d 108, 11 0 (Tex. Crim. App. 1983) overruled on other grounds by De Leon v. Aguilar , 127 S.W.3d 1 (Tex. Crim. App. 2004)5

5 when a party moves for recusal of a judge based on the judge's alleged bias,
prejudice , or partiality. This court ha s 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, pr ejudice , 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. at6

6 1155, 1157

– 58; Sommers, 20 S.W.3d at 41, 44. 4

In this case the 13 th court of appeals has so far sanctioned a departur e
by Maza ’ s trial judge as to c all 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 adjudic ation 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 pr esented, 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 Appe llant'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. 66.37

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 Aggra vated 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 int o 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 on8

8 probation, Mr. Maza did not fail to report. (I R.R. a t 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 o w n 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 conv iction, 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 the9

9 prosecution offered a an agreement in return for a plea of true to seven
years in prison, one fifth of the sentence assess ed. (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,

how ever, 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 are10

10 waivable only’ and denials of ‘absolute systemic requirements.’ Such errors
may be raised for the firs t 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 tr ial 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 reasonably11

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

constitutiona l 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 bas is 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 t hat for the foregoing

reasons, Petitioner Rich ard Lee Maza prays that this Honorable Court of
Criminal Appeals of Texas reverse the tri al court ’ s judgment as to
punishment and remand for a new hearing

.12

12 R ESPECTFULLY S UBMITTED , 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: 936.760.289213

13 CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrume nt ha s 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 2 nd 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 CO MPLIANCE

I certify that a copy of the above and foregoing Appellant’s Brief has a14

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

____________________________________ Bob Mabry15

15 

### AppendixEnvelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=e6fe4fb0-5243-4fb9-864e-c193b5785f63 [8/17/2015 12:57:23 PM] 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
Comments Sorry about technical problems which caused lateness. Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Reason Time Rejection Comment

08/17/2015 The petition for discretionary review does not contain a copy of the court of appealsEnvelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=e6fe4fb0-5243-4fb9-864e-c193b5785f63 [8/17/2015 12:57:23 PM] Other 12:53:17 PM opinion [Rule 68.4(j)]. The petition does not have attorney's signature [Rule 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]