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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
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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 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
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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 halfmeritorious 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 

 

2 Tex. Const. Art. I § 13

3 McClenan 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 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 
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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
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

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 appeals
Envelope Details

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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]