.. 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

EXPARTE § 

§ 

HUMBERTO GARZA,§ 

§ 

APPLICANT § 

§ 

TEXAS COURT OF CRIMINAL APPEALS 

NO. WR 78,113-01 

MOTION FOR ORDER TO CLERK OF CONVICTING COURT 

TO TRANSMIT TO THE COURT OF CRIMINAL APPEALS 

FILINGS OMITTED FROM THE RECORD OF THIS CASE. 

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL 

APPEALS: 

Applicant was convicted of capital murder and sentenced to death on March 

24, 2005, in the 370'h Judicial District Court of Hidalgo County, Texas, Judge Noe 

Gonzalez presiding. An application for writ of habeas corpus was filed on July 

19, 2007. After an evidentiary hearing on August 6 and 7, 2014, and the 

submission of proposed Findings of Fact and Conclusions of Law by the parties on 

September 30, 2014, the convicting court issued Findings ofFact and Conclusions 

of Law on February 12, 2015. 

Applicant subsequently, on March 20, 2015, filed in the convicting court 

his "Objections To, and Motion for Withdrawal Of, the Convicting Court's 

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WR-78,113-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/15/2015 1:42:56 PM

Accepted 4/15/2015 2:16:14 PM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 4/15/2015 ABEL ACOSTA, CLERK 
Findings of Fact and Conclusions of Law and Recommendation of Denial of 

Relief." He simultaneously filed an Advisory in the Court of Criminal Appeals 

explaining that the Objections had been filed in the convicting court, and provided 

copies of the Objections in question. 

The clerk of the convicting court thereafter prepared and transmitted to the 

Court of Criminal Appeals documents required by TEX. CODE CRIM. PROC. Art. 

11.071 § 9 (f). These were filed on Aprill, 2015. Undersigned counsel has 

checked the documents as transmitted and filed, and notes the following 

omissions, where documents were. filed in the convicting court, but are not 

contained in the record now present in the Court of Criminal Appeals. 1 

Motion for Approval of Reasonable Attorney Fees and Expenses, filed on 

June 3, 2005; 

Ex parte Confidential Motion to be Filed under Seal, filed on June 3, 2005; 

Letter and Voucher sent to Judge Gonzalez, filed on June 14, 2005; 

Motion for Approval of reasonable Attorney Fees and Expenses, filed on 

June 14, 2005; 

Order signed by Judge Gonzalez, filed on June 23, 2005; 

Order signed by Judge Gonzalez on October 4, 2005; 

1 In most instances the existence of these filings can be ascertained from the docket sheet 

filed with the record. However. some ofthe items are not reflected on the docket sheet, even 

though undersigned counsel is in possession of file-stamped copies of those items. 

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Letter from Hon. John E. Wright, filed on September 26, 2005; 

Attorney Fees Expense Claim Fonn, filed on February 11, 2013; 

Letter to Hon. Theodore C. Hake concerning codefendants from Hilary 

Sheard, filed on September '13, 2013;2 

Ex parte letter to the 3 70th District Court, filed on December 1 0, 2013; 

Letter to Hon. Theodore C. Hake from Hilary Sheard, filed on May 12, 

2014; 

Supplemental Exhibit Volumes 1 and 2, filed on May 28, 20 14; 

Supplemental Exhibit Volume 3, filed on August 5, 2014; 

State's Proposed Order Containing Findings ofFact, Conclusions of Law 

and a Recommendation, filed on September 30, 20 14;3 

Applicant's Objections, filed on March 20, 2015. 

Applicant further notes that, although the existence of multiple sealed 

filings in this case is reflected by the inclusion in the record as transmitted of the 

cover sheets to those filings, there is no indication with the record as filed that the 

2

Two separate letters were sent simultaneously to Assistant District Attorney Theodore C. 

Hake by undersigned counsel, and copies of both were provided for the court file. Only one 

letter is reflected on the convicting court's docket sheet and in the record. 

3

While the convicting court in large part simply adopted these State-drafted Findings of 

Fact and Conclusions of ~aw, the court did amend and edit some sections before issuing its 

actual Findings of Fact and Conclusions of Law, as explained in Applicant's Objections filed on 

March 20,2015. The Court of Criminal Appeals will not be able to analyze the differences 

between the two documents- an analysis which, as explained in Applicant's Objections, is 

necessary as part of the Court's independent review of the case- without having both documents 

before it. 

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contents of those sealed filings have actually been transmitted to the Court of 

Criminal Appeals. 

In addition to the above, the clerk of the convicting court has not provided 

undersigned counsel with the documents required by TEX. CODE CRIM. PROC. Art. 

11.071 § 9 (f)(2) other than in electronic scanned form by e-mail. 

TEX. CODE CRIM. PROC. Art. 11.071 § 9 (f) creates a statutory requirement 

for the transmission of the record in a capital habeas corpus case to the Court of 

Criminal Appeals. Moreover, state habeas counsel has an obligation to ensure that 

there is a complete record available concerning every issue raised. See, e.g., State 

Bar of Texas: Guidelines and Stan.dards for Texas Capital Counsel: Standing 

Committee on Legal Services to the Poor in Criminal Matters Adopted by the 

State Bar Board of Directors, reprinted in 69 TEX. B. J. 966, 971 (2006), Guideline 

12.2.6.a - Duties of Post-Trial Counsel. 

In this case, the items omitted from the record transmitted to the Court of 

Criminal Appeals include 3 volumes of exhibits filed on behalf of Applicant, and 

Objections to many aspects of the convicting court's conduct of the case. It is 

therefore necessary, in order for Applicant to receive a comprehensive and 

independent review of his grounds for relief, for the missing items to be provided 

to the Court of Criminal Appeals as soon as possible. 

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CONCLUSION AND PRAYER. 

Applicant respectfully requests that the Court of Criminal Appeals order the 

Clerk of the Convicting Court to transmit to it the above-mentioned documents as 

required by TEX. CODE CRIM. PRO.C. Art. 11.071 § 9 (f) as soon as possible, and to 

provide to counsel for the Applicant the documents required by TEX. CODE CRIM. 

PROC. Art. ll.071 § 9 (g)(2). Applicant also specifically requests that the Court 

of Criminal Appeals order all sealed fil ings be transmitted to it by the Clerk of the 

Convicting Court, if that has not already been done. 

Respectfully submitted, 

HILARY SHEARD 

Texas Bar # 505 11187 

7301 Burnet Road,# 102-328 

Austin, TX 78757 

Phone: (512) 524 1371 

Fax: (512) 646 7067 

HilarySheard@Hotmail.com 

Counselfor Humberto Garza Ill, Applicant. 

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CERTIFICATE OF SERVICE 

I cettify that on April 15, 20 15, a copy of the foregoing pleading was served 

electronically via www.efileTexas.gov on: 

Theodore C. Hake, Esq. 

Assistant Criminal District Attorney 

Hidalgo County Courthouse 

I 00 N. Closner, Room 303 

Ed inburg, Texas 78539. 

Ted.Hake@da.co.hidalgo.tx.us 

Michael W. Morris, Esq. 

Assistant Criminal District Attorney 

Office of the District Attorney 

Hidalgo County Courthouse 

I 00 N. Closner 

Edinburg, TX 78539 

Michael.Morris@da.co.hidalgo.tx.us 

Hilary Sheard.