                            PD-1660-14                              COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                 Transmitted 12/29/2014 2:07:29 PM
                                                                  Accepted 12/30/2014 10:11:28 AM
                                                                                      ABEL ACOSTA
                           NO. ___________________                                            CLERK

                      IN THE COURT OF CRIMINAL APPEALS
                           FOR THE STATE OF TEXAS


      WILLIAM DRIVER                         *            APPELLANT
                                             *
      V.                                     *
                                             *
      STATE OF TEXAS                         *            APPELLEE

                         Trial Court Cause No. 1396922
                            In The 182nd District Court
                             Of Harris County, Texas
                         Hon. Frank Price, Judge Presiding

                First Court of Appeals Cause No. 01-14-00375-CR

                PETITION FOR DISCRETIONARY REVIEW


      TO THE HONORABLE JUDGES OF THE TEXAS COURT OF

CRIMINAL APPEALS:

      Comes now WILLIAM DRIVER, by and through his counsel on appeal, and

files this his Petition for Discretionary Review pursuant to Tex.R.App.P. 70.1. In

support of his prayer for review, he would respectfully show the Court the following:




      December 30, 2014

                                         1
                   GROUNDS FOR REVIEW NUMBER ONE

     IS PRE-TRIAL HABEAS CORPUS RELIEF AVAILABLE TO
     CHALLENGE AN INDICTMENT ISSUED BY A GRAND JURY
     PURSUANT TO PROCEDURES THAT FAIL TO PROVIDE DUE
     PROCESS AND DUE COURSE OF LAW?

                       ARGUMENT AND AUTHORITIES

     A.     THE RIGHT           TO     AN      UNBIASED       GRAND        JURY      IS
            PARAMOUNT

     There are few more fundamental rights in Anglo-American jurisprudence than

the right not to be tried until, and unless, an indictment has been issued by a properly

constituted, fair and neutral Grand Jury. An unbiased grand jury is fundamental to

due process. See Costello v. United States, 350 U.S. 359, 363 (1956). As the Tyler

Court of Appeals has noted, “[t]he integrity and independence of our grand jury

system must be protected from unwarranted intrusion by way of prosecutorial

misconduct as well as improper influences exerted upon the grand jurors which is

[SIC] calculated to evoke grand jury action based on prejudice and bias alone.”

Whittington, v. State, 680 S.W.2d 505, 510 (Tex. App.—Tyler 1984, pet. ref’d).

“Even where there is no showing of actual bias in the tribunal…due process is denied

by circumstances that create the likelihood or the appearance of bias.” Peters v. Kiff,

407 U.S. 493, 502 (1972).




                                           2
     B.     TEXAS COURTS HAVE A DUTY, TO PROTECT A
            DEFENDANT’S RIGHTS TO DUE PROCESS AND DUE
            COURSE OF LAW BEFORE THE GRAND JURY

     The right not to be tried in the absence of a properly issued indictment is a

meaningless guarantee of form without substance if not capable of being enforced

pre-trial. This is similar to a pre-trial writ of Habeas Corpus in the double jeopardy

context, in which trial itself is barred by fundamental Constitutional principles. In

Ex Parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982), relying on Abney v. United

States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), this Court held “[w]e

are compelled to hold that there is a Fifth Amendment right not to be exposed to

double jeopardy, and that it must be reviewable before that exposure occurs.” Id. at

555; U.S. CONST, amends. V and XIV; Art. 1, sec. 10, TEX. CONST. This Court

then explained that a pretrial writ under Chapter 11, V.A.C.C.P. was the mechanism

to be utilized in seeking relief from exposure to double jeopardy.

     The right not to be tried in the absence of a properly issued grand jury

indictment is of no less import than the right to be free from Double Jeopardy. Article

I, Sec. 10 of the Texas Constitution states that “… no person shall be held to answer

for a criminal offense, unless on an indictment of a grand jury, except in cases in

which the punishment is by fine or imprisonment, otherwise than in the

penitentiary…” The Grand Jury guarantee protects a defendant from being put in

                                          3
jeopardy on a felony charge without the State first obtaining a lawfully acquired

indictment.   Absent a lawfully acquired indictment, the State cannot force a

Defendant to endure “the personal strain, public embarrassment, and expense of a

criminal trial…” Ex Parte Robinson, 641 S.W.2d 552, 553 (Tex.Crim.App. 1982).

     An indictment issued by a grand jury that has been tampered with or

manipulated nullifies the due process and due course of law guarantees of Article I,

Sec. 10 and makes of them a meaningless formality, not the fundamental

Constitutional right Texas law intends. This is not a situation in which the

evidence put before the Grand Jury is at issue in determining the validity of the

indictment. What is at issue here in are the overly suggestive, manipulative, and

unfair procedures used to “train” and “orient” the grand jurors, procedures that

expert testimony shows have a very high tendency to render the resultant grand jury

biased and partial. But the principles are best considered by asking whether this

Honorable Court would allow grand jury manipulations in extreme circumstances.

If this Honorable Court would halt extreme proceedings, then it is a question of

setting the standards for when proceedings must be terminated.

     Consider, for example, a situation in which evidence showed that Grand Jurors

were paid per indictment issued. Would any Court hold that such a system could

not be questioned before trial? Or should it come to light that the Grand Jurors had

                                         4
been threatened with prosecution should they fail to issue a true bill? Would any

Court in the State of Texas say that a writ of Habeas Corpus did not lie to prevent

the injustice of such an indictment going to trial?           Would such Grand Jury

procedures, wholly bereft of due process, justify forcing a Defendant to endure “the

personal strain, public embarrassment, and expense of a criminal trial…” Robinson,

supra at 553.

     The Court below erred in analogizing this case to U.S. v. MacDonald, 435 U.S.

850 (1978), a case which found that speedy trial rights could not be enforced pre-

trial through habeas litigation.       The MacDonald opinion’s language clearly

embraces the present situation:

     “Unlike the protection afforded by the Double Jeopardy Clause, the Speedy
     Trial Clause does not, either on its face or according to the decisions of this
     Court, encompass a ‘right not to be tried’ which must be upheld prior to trial
     if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that
     offends against the constitutional guarantee of a speedy trial.”

     MacDonald at 186. The constitutional infirmity inherent in this matter is the

threat of a trial on the authority of a constitutionally invalid indictment, issued

through procedures that violate due process and due course of law. The

constitutional protections provided by the Constitutional requirement of a properly

issued indictment are eviscerated if such protections can only be enforced post-trial.

     Where forcing a Defendant to proceed to trial and then (if unsuccessful) to

                                            5
appeal violates fundamental Constitutional rights, Texas appellate courts are not

only empowered to intervene, but are duty-bound to do so. Due process and due

course of law are violated when circumstances exist that clearly create (at a bare

minimum) the likelihood or the appearance of a biased grand jury. Peters v. Kiff,

supra. The Court below erred in holding that it was not authorized to intervene.




     C.     THIS CASE MUST BE REMANDED FOR CONSIDERATION
            ON ITS MERITS

     The Court below never reached the merits of the Petitioner’s complaint. While

the issues involved in this case are novel, they are both timely and fundamental and

should be taken up by the Court below.    Accordingly, this case should be remanded

for full consideration on the merits.

     The issue here in whether grand jury “orientation and training” procedures that

have a high likelihood – in fact, a near certainty – of biasing the grand jurors in

certain categories of cases violate the Constitutional guarantees of due process and

due course of law, at least in those categories of cases in which such bias is most

likely. This is not a challenge to the evidence which was placed before the grand

jury, but a challenge to the constitutionality of the unfair procedures involved. This

is a challenge to the unchecked authority of the State in manipulating and controlling

grand jury “orientation and training.”
                                          6
      The Grand Jury in this case was “trained” through the use of a “firearms

training simulator” (FATS). R.R. 8. The use of these simulators to “train” grand

jurors is controversial, and has been widely discussed in the media. 1               The

mechanics of the simulator are not controverted. The “trainee” is given a modified

firearm. They watch a scenario on a video screen in which a potential for violence

develops. They must decide when and if to shoot. There are twelve scenarios: eight

of them explicitly involve putting the trainee in the position of a police officer, and

four are silent as to the role of the trainee. See R.R., 48-51, State’s Exhibit 1.

      The primary market for these devices is police officer training. R.R. 25. The

simulations are not modified for grand jury usage. R.R. 27, 74. The trainees are

“debriefed” after the simulation by a certified peace officer. R.R. 73, 74-76. The

State of Texas has never had any psychologists or other qualified experts examine



1 See for a few examples, James Pinkerton, “Bulletproof, Part 3: Hard to Charge”,
Houston Chronicle, December 1, 2013
(http://www.houstonchronicle.com/local/investigations/item/Bulletproof-Part-3-Hard-to-
charge-24421.php); Juan A. Lozano, “Harris County Grand Jury Shooting Simulator Stirs
Debate”, WFAA Channel 8, May 5, 2014 (http://www.wfaa.com/news/texas-news/Texas-
grand-jury-shooting-simulator-stirs-debate-257971791.html); Ed Krayewski, “Houston
Grand Jurors Subjected to Shooting Simulator to Prepare for Police Shooting Cases”,
Reason, May 5, 2014 (http://reason.com/blog/2014/05/05/houston-grand-jurors-
subjected-to-shooti); “Simulator trains Harris County Grand Jurors on Self Defense
Scenarios”, KHOU, July 26, 2013
(http://www.khou.com/story/local/2014/08/06/12103674/), Mark Hansen, “Ready, Aim –
Indict!”, ABA Journal, Oct 1, 2007
(http://www.abajournal.com/magazine/article/ready_aim_indict/).
                                            7
what effect these simulators may have on grand jurors. R.R. 67.

     This is not a case involving merely “the State's general orientation to the grand

jury on general areas of the law prior to presentment of cases to the grand jury.”

Carter v. State, 691 S.W.2d 112, 116 (Tex. App. Fort Worth 1985). It cannot be

over-emphasized that the simulator employed herein is an experiential, visceral

training device, not a didactic learning tool. It was not designed with grand juror

training in mind – it is primarily used for training police officers. R.R. 25, 27, 74.

     There must be some due process and due course of law limitations placed on

the State’s discretion in the orientation and training of grand jurors. It is important

to note that grand jury “orientation and training” programs exist entirely outside of

the procedures authorized by the Texas Code of Criminal Procedures. The Texas

legislature has never seen a need for such programs: in fact, Chapters 19 and 20 of

the Texas Code of Criminal Procedure do not mention grand jury orientation and

training. Art. 19.35 provides the court shall instruct the grand jury as to their duty.

Art. 20.05 and 20.06 provides that the grand jury may request advice from the

attorney representing the State or from the Court, respectively; the law does not

authorize the State to create arbitrary and unfair “orientation and training” programs.

     We are thus presented with extra-legal procedures that are invoked to address

a non-existent need, which have a high likelihood of biasing some or all of the grand

                                           8
jurors in certain categories of cases, and which the State of Texas has never even

investigated to determine whether they may be unfairly influencing grand jury

proceedings. The grand jury system is not infinitely malleable, and it is not the

private property of the District Attorney’s offices throughout the State for them to

do with as they please. “Prosecutors bear a particularly weighty duty not to influence

the jury because the defendant has no representative to watch out for his interests

before the grand jury.” Maretick v. Jarrett, 204 Ariz. 194, 196, 62 P.3d 120, 122

(2003) Any “orientation and training” programs must remain unquestionably neutral

to comply with due process and due course of law: programs designed and intended

with the purpose of training police officers fall far short of that standard.

      Somewhat surprisingly, these are issues this Honorable Court has never had to

address in a written opinion. Clearly, due process and due course of law place some

limits on the discretion of the State to “orient and train” grand jurors, using methods

and procedures not authorized by the Legislature. The parameters of those limits

have yet to be considered by this Honorable Court. The time for doing so is now.

      This case squarely presents these important issues, and the Court of Appeals

has not considered the merits.2 That is a pre-requisite for this Honorable Court to



2       The first step in considering the merits should be to remand this case back to the
trial court, for complete findings of fact and conclusions of law, addressing the testimony
of Dr. Bryan Sweeney. The losing party on a motion to suppress is, on request, entitled
                                             9
address the merits of the case. Accordingly, the Petitioner requests that this

Honorable Court remand this case back to the Court of Appeals for consideration on

the merits.




                  CONCLUSION AND PRAYER FOR RELIEF

       The Panel Opinion of November 20, 2014 was erroneous in that it failed to

find that pre-trial habeas relief was available to challenge an indictment issued by a

grand jury that had been “trained and oriented” in such a manner as to deprive the

Petitioner of due process and due course of law. Because habeas relief is available

in such a situation, this case should be REMANDED to the Court below for

consideration on the merits.

By:    /s Clay S. Conrad
       CLAY S. CONRAD
       State Bar No. 00795301
       PAUL C. LOONEY
       State Bar No. 12555900
       LOONEY & CONRAD, P.C.
       11767 Katy Freeway, Suite 740
       Houston, Texas 77079
       Ph. No. (281) 597-8818

to “essential findings” of fact that are “adequate to provide an appellate court with a basis
upon which to review the trial court's application of the law to the facts.” See
State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App. 2011) (quoting State v. Cullen,
195 S.W.3d 696, 699 (Tex. Crim. App. 2006)) The Petitioner filed a Motion to Remand
to Trial Court for Complete Findings of Fact and Conclusions of Law on August 13,
2014, which has never been ruled on.
                                             10
Fax No. (281) 597-8284
Attorneys for Appellant




                          11
                               Certificate of Service

        I certify that on December 19, 2014 a true and correct copy of the above and

foregoing Appellant=s Petition for Discretionary Review was properly mailed on this

day to:


Harris County District Attorney's Office        State Prosecuting Attorney=s Office
Appellate Division                              P.O. Box 13046
1201 Franklin                                   Austin, Texas 78711
Houston, TX 77002

/s Clay S. Conrad
Clay S. Conrad




                             Certificate of Compliance

        Relying on the word count function in the word processing software used to

produce this document, I certify that the number of words in this Petition is

2211.     The body of the document is in Times New Roman 14 point font. The

footnotes are in Times New Roman 12 point font.

/s Clay S. Conrad
Clay S. Conrad




                                           12
