                                                                                     WR-78,113-01
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 7/17/2015 1:08:55 PM
                                                                       Accepted 7/17/2015 1:36:47 PM
                                                                                       ABEL ACOSTA
         IN THE COURT OF CRIMINAL APPEALS OF                        TEXAS                      CLERK
                                                                        RECEIVED
                                                                 COURT OF CRIMINAL APPEALS
EX PARTE             §                                                  7/17/2015
                                                                    ABEL ACOSTA, CLERK
                     §
HUMBERTO GARZA, §               TEXAS COURT OF CRIMINAL APPEALS
                     §          NO. WR 78,113-01
APPLICANT            §
                     §
____________________

                     RENEWED MOTION
       FOR ORDER TO CLERK OF CONVICTING COURT TO
        TRANSMIT TO THE COURT OF CRIMINAL APPEALS
      FILINGS OMITTED FROM THE RECORD OF THIS CASE,
     AND MOTION FOR THE COURT TO ABATE PROCEEDINGS
           PENDING COMPLETION OF THE RECORD.


TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:

      On April 15, 2015, Applicant Humberto Garza III, through counsel, filed a

“Motion for Order to Clerk of Convicting Court to Transmit to the Court of

Criminal Appeals Filings Omitted from the Record of this Case,” of which a copy

is attached. That Motion has never been ruled upon. The Clerk of the Convicting

Court has, nonetheless, almost entirely remedied the deficiencies in the record of

this capital habeas corpus case noted in that previous motion.

      However, there remains one significant omission from the record: This is a

case in which Applicant’s counsel filed multiple sealed and ex parte pleadings

                                        -1-
which in many instances concerned requests for funding for expert and

investigative services. Those materials were not transmitted to this Court with the

rest of the record, and have still not been transmitted despite that being requested

in Applicant’s previous motion.

      Moreover, in a capital habeas corpus case, the Clerk of a Convicting Court

is required, pursuant to TEX. CODE CRIM. PROC. Art. 11.071 § 9, to “ ... transmit

to: (1) the Court of Criminal Appeals a copy of ... (G) the sealed materials such as

a confidential request for investigative expenses[.]”

      In addition to the provision of such materials to this Court being a statutory

mandate, the sealed materials may well be relevant to the disposition of

Applicant’s case: The Convicting Court’s failure to provide timely and adequate

funding with which Applicant could develop his case had a significant detrimental

impact upon his ability to present his Grounds for Relief, see, e.g., “Applicant’s

Objections to, and Motion for Withdrawal of, the Convicting Court’s Findings of

Fact and Conclusions of Law and recommendation of Denial of Relief,” at p. 35-

39. This Court’s fair and independent determination of Applicant’s case therefore

requires the relevant pleadings and other materials to be available for review.

      Undersigned counsel has made efforts to ensure the completion of the

record in this case, including traveling to the Court of Criminal Appeals twice to

                                         -2-
review the record, liaising with the Clerk of the Convicting Court and with this

Court’s General Counsel, and filing the previous motion for transmission of the

omitted filings. Since those efforts have not yet resulted in the completion of the

record, Applicant respectfully requests this Court to order the Clerk of the

Convicting Court immediately to transmit to it the above-mentioned documents as

required by TEX. CODE CRIM. PROC. Art. 11.071 § 9. Applicant also respectfully

requests that this Court abate its review of this case until the record is complete,

lest its decision be formed on the basis of a record that is incomplete through no

fault of the Applicant.

                          CONCLUSION AND PRAYER.

      Applicant respectfully requests that the Court of Criminal Appeals order the

Clerk of the Convicting Court immediately to transmit to it the above-mentioned

documents as required by TEX. CODE CRIM. PROC. Art. 11.071 § 9, and to abate

the proceedings pending the completion of the record.




                                          -3-
         Respectfully submitted,




    ___________________________
          HILARY SHEARD
         Texas Bar # 50511187
      7301 Burnet Road, # 102-328
           Austin, TX 78757
         Phone: (512) 524 1371
          Fax: (512) 646 7067
      HilarySheard@Hotmail.com

Counsel for Humberto Garza III, Applicant.




                   -4-
                         CERTIFICATE OF SERVICE

I certify that on July 17, 2015, 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
      100 N. Closner, Room 303
      Edinburg, 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
      100 N. Closner
      Edinburg, TX 78539
      Michael.Morris@da.co.hidalgo.tx.us




                                      ____________________________
                                           Hilary Sheard.
                                                                                 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
         IN THE COURT OF CRIMINAL APPEALS                    OF TEXAS                     CLERK

                                                                     RECEIVED
                                                              COURT OF CRIMINAL APPEALS
EXPARTE        §                                                     4/15/2015
                                                                ABEL ACOSTA, CLERK
               §
HUMBERTO GARZA,§               TEXAS COURT OF CRIMINAL APPEALS
               §               NO. WR 78,113-01
APPLICANT      §
               §



     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


                                        -1-
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.

                                                -2-
       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 10, 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.

                                               -3-
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.

                                           -4-
                         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 requ ired 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.




                                         -5-
                         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 in burg, Texas 7853 9.
      Ted.Hake@da.co.hidalgo.tx.us

      Michael W. Morris, Esq.
      Assistant Criminal District Attorney
      Office of the D istri ct Attorney
      Hidalgo County Courthouse
      I 00 N. Closner
      Edinburg, TX 78539
      Michael.Morris@da.co.hida lgo.tx.us




                                             Hilary Sheard.
