                               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



     August 17, 2015
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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
                                                                                                                                  iv
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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




                                                                                                                    v
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 half-

meritorious 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.
                                                                               3
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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



2Tex. Const. Art. I § 13
3McClenan 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

                                                                                5
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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
                                                                                           6
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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 pre-

post 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




                                    12
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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




                15
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
                                                                             Sorry about technical problems which caused
   Comments
                                                                             lateness.
   Status                                                                    Rejected
   Fees
   Court Fee                                              $0.00
   Service Fee                                            $0.00
   Rejection Information
   Rejection Time       Rejection Comment
   Reason
             08/17/2015 The petition for discretionary review does not contain a copy of the court of appeals

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=e6fe4fb0-5243-4fb9-864e-c193b5785f63[8/17/2015 12:57:23 PM]
Envelope Details

                                 opinion [Rule 68.4(j)]. The petition does not have attorney's signature [Rule
   Other           12:53:17
                   PM            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]




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