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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. AP-75,086
EX PARTE JOSÉ NOEY MARTINEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. CR-0385-95-G(1) FROM THE 370 TH DISTRICT COURTOF HIDALGO COUNTY
Hervey, J., filed a concurring opinion in which Keller, PJ., Johnson, and Keasler, JJ., joined.
CONCURRING OPINION
I concur in the court's judgment. Applicant claims that trial counsel was constitutionally ineffective (1) for not more vigorously pursuing a mitigation defense based on applicant's voluntary intoxication at the time of the offense and for inadequately investigating and not discovering non-offense-related evidence of applicant's "troubled" childhood. The constitutional claim is that this "mitigating" evidence might have, from the standpoint of at least one juror, somehow reduced applicant's moral and personal culpability for brutally murdering and sexually assaulting a 68-year-old woman and her blind, 4 1/2-year-old granddaughter. (2)
Applicant's trial counsel provided testimony at the habeas hearing describing his punishment theory at applicant's trial:
Q. [APPLICANT'S HABEAS COUNSEL]: -what would-what was your punishment theory at trial? What theory of defense did you have with regards to the jury? Why should they not assess the death penalty against [applicant]?
A. [APPLICANT'S TRIAL COUNSEL]: There was an issue of his age, even though he was 18, he was still a young man. There was an issue of whether or not he was diminished to some extent because of the ingestion of some substance. There was an issue of whether or not there were psychological concerns, but not so much psychological, so much as emotional that were involved.
There were some questions that we had going in on whether or not there was some background, family background problems. We didn't have an awful lot of information about that. It just depended on what came in.
Q. Was physical abuse an issue?
A. Physical abuse was a concern. Physical abuse was something that was discussed, but we didn't really have much about?
Q. What do you mean about, not having "much about"?
A. Somebody has to be willing to tell you. You have to have a witness. You have to have something.
Q. Was sexual abuse an issue?
A. Sexual abuse was something that we considered and discussed and were concerned about, but we had no information about.
The habeas record reflects that applicant's mother did not plan to testify on applicant's behalf at the punishment phase of his capital murder trial. In the middle of applicant's trial, the mother was finally persuaded to testify by one of applicant's lawyers. The mother came to applicant's trial with one of applicant's brothers and an aunt. Trial counsel briefly met with them in the hallway outside the courtroom. Trial counsel decided not to have the aunt testify because she had alcohol on her breath, her speech was a little slurred and she "didn't really have much to say at the time."
Applicant's mother and brother testified very briefly at the punishment phase of applicant's trial. They testified that applicant's mother abandoned applicant and the brother when they were young and that they lived with their physically abusive grandparents for five years. The State does not dispute the assertion in applicant's brief that the brother's testimony "relating to his and Applicant's experiences living with their grandparents constitutes 31 words; his actual description of the conditions of abuse constitutes eight words." These were the only witnesses to testify for applicant at the punishment phase of his trial.
The habeas record reflects that habeas counsel's post-conviction investigation of applicant's background uncovered significantly more evidence than that presented at applicant's trial. This post-conviction investigation turned up new evidence of applicant's "troubled" childhood, including evidence of physical and sexual abuse by his mother, which meets Tennard's low threshold for constitutionally relevant mitigating evidence. See Tennard, 542 U.S. at 285. This new evidence is based on affidavits of three people who were not interviewed by applicant's trial counsel. This new evidence is also based on an affidavit of applicant's brother, who provided "more detailed facts about his and Applicant's upbringing" than he did when he testified at applicant's trial, and an affidavit of the aunt, who had alcohol on her breath at applicant's trial. This new evidence is also based on an affidavit by a licensed "investigator/mitigation-specialist" (Milstein). Milstein's affidavit also states that she needs more money to do a more complete and thorough report.
Applicant's trial counsel testified at the habeas hearing about his pretrial investigation of mitigating evidence on applicant's background which included an investigation of whether applicant had been physically or sexually abused. Applicant's trial counsel testified that he spoke with many but not all of applicant's relatives, none of whom mentioned anything about applicant being physically or sexually abused. Applicant's trial counsel testified that applicant's mother was very uncooperative and not forthcoming with any information of physical or sexual abuse. Applicant's trial counsel also spoke by telephone with the aunt who came to applicant's trial with alcohol on her breath. This aunt provided no information that applicant may have been physically or sexually abused. The record is not clear on whether applicant's trial counsel spoke with the brother before applicant's trial. The record supports a finding that the brother failed to mention anything about physical or sexual abuse when he spoke to applicant's trial counsel before testifying at applicant's trial. (3)
Applicant's trial counsel did not seek out the assistance of any social workers or "mitigation specialists," and he did not have anyone prepare a formal "social history" of applicant.
Q. [APPLICANT'S HABEAS COUNSEL]: Did you have any social workers assisting you?
A. [APPLICANT'S TRIAL COUNSEL]: No.
Q. Mitigation specialists? Have you ever heard of mitigation specialists?
A. Sure.
Q. Did you use anyone in this case?
A. I didn't know of mitigation specialists back then. I think that it is a new specialty that people are outdoing [sic] money now.
Q. Have you ever used-
A. No.
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Q. I believe you said a minute ago-well, let me ask you this. Did you or anyone at your direction prepare a social history of [applicant]?
A. A social history, no.
Q. A social history. Okay. Did you or anyone, as part of the defense team, prepare any kind of summary of the mitigating factors, of [applicant's] background, character, health, at the time of the offense?
A. A formal?
Q. Formal. Formal.
A. Formal, no, certainly not.
Applicant's trial counsel testified that applicant was not forthcoming with evidence of physical or sexual abuse either to him or to the psychologist (Alamia) appointed by the court to assist the defense. (4) Alamia filed an affidavit in this habeas proceeding. Alamia's affidavit states:
"In the matter of [applicant], I was appointed by the court to assist the trial team in assessing whether or not [applicant] was mentally retarded, competent to stand trial/not insane and whether or not there was any other presenting problem that would explain his behavior (i.e., if he had been physically/sexually abused).
With reference to this latter point, a developmental history and assessment for abuse was conducted on [applicant]. The results yielded no indication that he had been abused and he also denied any history of sexual or physical abuse; however, he did state that he abused alcohol and drugs. A follow up investigation into this matter was conducted through telephonic conference discussions with the biological mother and step father. Efforts to meet with the biological father to discuss these issues proved futile (i.e., he refused to meet with me). After having done this, it was concluded that, there was no conclusive data to substantiate that he had been abused.
A clinical interview to assist in determining his mental status revealed that his thought process was coherent, logical and relevant. He had no delusions or hallucinations and his cognitive function was found to be alert. He was also oriented to person, place, time and situation. He was not insane at the time of his act.
A Wechsler test of intellectual functioning was also administered and its results indicated that he had a fair fund of knowledge and although his scores were borderline to low average, it was commensurate with his deficient academic achievement and learning difficulties that were reported in school records that were provided and reviewed for this matter.
I was also asked to work on the jury questionnaire and to work with [applicant] and prepare him in case he was to testify on his behalf. In the latter regard we reviewed video tapes of the crime scene and discussed the various statements he had made about this incident. At no time during all of the aforementioned efforts did [applicant] show any signs of being impaired in any fashion. He was able to understand his legal situation, charges against him, facts relevant to his case, legal issues and procedures in his case as well as the legal defenses available to him. Thus, [applicant] was not found to be mentally retarded, competent to stand trial [sic]/not insane and no evidence was found to support the fact that he had been physically/sexually abused."[ (5)]
Applicant's trial counsel testified that applicant was not forthcoming to him with any allegations of physical or sexual abuse other than saying that his mother was "rough with him." Habeas counsel also questioned trial counsel on the difficulty that young males might have discussing allegations of physical and sexual abuse.
Q. [APPLICANT'S HABEAS COUNSEL]: Could I ask you a question. In your experience, you have dealt with these issues before, have you not, of dealing with sexual abuse?
A. [APPLICANT'S TRIAL COUNSEL]: Yes.
Q. Is it strange that sexual abuse has been very difficult to obtain from someone?
A. Sure.
Q. Is it also fair to say that actually with young males, perhaps the issue of sexual abuse might be somewhat shameful, and might be a little less reluctant to reveal that?
A. Sure.
Applicant's habeas counsel also questioned applicant's trial counsel about American Bar Association standards and an attorney's obligation to independently investigate evidence of physical and sexual abuse when the client is not forthcoming about these matters.
Q. [APPLICANT'S HABEAS COUNSEL]: Did you-do you understand, sir, do you agree or disagree that sometimes-well, let me back up here. Do you agree or disagree that in order to perform a competent investigation, a competent pretrial investigation, you have to go beyond simply the matters that the client may tell you?
A. [APPLICANT'S TRIAL COUNSEL]: My experience in criminal law tells me, yes, you need to go past what your client tells you. They tend not to tell you everything, yes.
Q. For whatever reasons, they keep things to themselves?
A. Various reasons they do, yes.
Q. They don't understand certain things that might be mitigating, correct?
A. Sometimes they don't, yes.
Q. All right. And so in order to basically to present the best picture possible regarding the client's background, character, any aspect which is mitigating, you need to perform as thorough a background investigation as possible before you start making a decision as to what to present, correct?
A. Theoretically, sure.
Q. That is sort of the ideals, once you hear that?
A. Ideals are one thing, but you have to deal with what you have in your pockets, yes.
Q. Are you a member of the American Bar Association?
A. Not anymore. I think I was a while back.
Q. Are you familiar with the American Bar Association Standards for Criminal Justice?
A. I have read them.
Q. You have read them. So you are familiar with them, then?
A. Yes, I'm familiar with them.
Q. And you are aware that standard 4-4.1, deals with the Duty to Investigate?
A. Sure, I don't remember the exact number, but there is a Duty to Investigate.
Q. And you are familiar with that standard, right?
A. In the sense that?
Q. Generally.
A. In the sense that I read it, yes.
Q. And that standard is basically saying that you need to do a thorough investigation, going beyond what the client tells you?
A. Yes.
Q. Would you agree with me, that sort of the industry standard as reflected by the ABA, is to do a complete background investigation as possible before you start making a defensive theory in deciding what to present?
A. I'm not sure what industry, but if you are saying that you need to do as thorough an investigation as you can.
Q. How about the defense bar?
A. The defense bar tries to do as thorough an investigation as they can, yes.
Q. Would the ABA standards suggests [sic] that the defense bar should do that, that that should be the industry standard?
A. The ABA sets a standard that they think is a good ideal, yes.
Q. Sir, have you read a case called, Wiggins versus Smith?
A. Sounds familiar.
Q. Okay. Have you read a case called, Williams versus Taylor?
A. I don't recall.
Q. Okay. Have you heard a case called, Strickland versus Washington?
A. Yes.
Q. And in Strickland versus Washington, the Supreme Court used the ABA standards as a measure of objectively reasonable defense practice, correct?
A. I think so. I mean, I haven't read it for a while, but I believe so. I had to deal with the effective assistance and all that, and it has been a while.
Q. Would you argue with me that if I tell you under Wiggins versus Smith and Williams versus Taylor, the Supreme Court also cites to the ABA standard with regards to what is required for of a lawyer to investigate prior to going to trial?
A. Would I argue with you, no, I would not argue with you.
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Q. And according to the ABA standards, you need to dig pretty darn deep, correct?
A. Well, you know, it is, like, deep. How deep do you want to drill before you figure out you have not hit oil? You need to dig.
In deciding whether applicant's trial counsel exercised "reasonable professional judgment" in his mitigating evidence investigation, it is necessary to objectively review his performance and measure it for "reasonableness under prevailing professional norms," which "includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time." See Wiggins, 539 U.S. at 522-23 (internal quotes omitted). The record fairly reflects that applicant's trial counsel, as seen from his perspective at the time, could reasonably have decided that any further investigation of applicant's background for evidence of a "troubled" childhood would not turn up anything based on trial counsel's interviews with applicant, his uncooperative mother, the other relatives, and the psychologist (Alamia). These sources provided no information regarding a "troubled" childhood that "triggered an obligation to look further." See Wiggins, 539 U.S. at 519 (discussing federal district court's conclusion that counsel's knowledge of defendant's background "triggered an obligation to look further") and at 525 (scope of counsel's investigation into defendant's background unreasonable in light of what counsel had discovered about the defendant's background from other sources).
That this Court, in hindsight, could conclude that a different investigation by applicant's trial counsel might have discovered the evidence of applicant's background discovered by habeas counsel is not the standard and is not dispositive of applicant's ineffective assistance of counsel claim. See Wiggins, 539 U.S. at 523 (requiring that every effort be made to eliminate the distorting effects of hindsight). (6) Several of the habeas court's findings are worth noting and are set out here:
332. This Court finds that the hindsight affidavits attached to Applicant's application for writ are hardly accurate descriptions concerning what mitigation testimony was available to Applicant's trial attorneys at the time that this case was being prepared for trial and then tried.
333. Instead, as shown by [applicant's trial counsel's] affidavit, which this Court finds credible, Applicant's Houston family members were actually, at the time, very uncooperative with defense counsel and were hardly willing to come to the Rio Grande Valley to testify for Applicant.
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344. This Court further finds that it is easy for Applicant, his habeas attorney, and an investigator hired by said attorney to go to Applicant's family members and friends after Applicant has been sentenced to death and ask them if they would have testified at his trial in order to keep him from receiving such a sentence and that it is also easy for those thus contacted to now say that they would have testified on Applicant's behalf.
345. However, the credible affidavit testimony by Applicant's trial attorneys shows that what Applicant's family members and friends now say with the benefit of 20-20 hindsight does not accurately describe their views at the time Applicant was tried.
346. Said credible information concerning the attitude of Applicant's family members and friends at the time instead shows that the situation which counsel faced at the time of trial was far different than the rosy picture of available, cooperative family members and other defense-favorable witnesses which is presented in the affidavits attached to Applicant's application for writ.
347. In fact, it shows that Applicant's family members had actually been uncooperative with his trial attorneys, unwilling to testify on his behalf, and unconcerned with the prospect of Applicant receiving a death sentence.
Most importantly, a defendant (such as applicant) accused of a death-penalty offense has some obligation to assist his trial counsel in investigating his background information. When such a defendant is not forthcoming with this information, (7) he risks that it will not be presented at his trial. The following discussion from Strickland, 466 U.S. at 691, greatly disposes of any claim that applicant's trial counsel did not adequately investigate applicant's background for evidence of a "troubled" childhood, including physical and sexual abuse:
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigative decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. (Citation omitted).[ (8)]
Finally, any constitutionally deficient performance by trial counsel in failing to more vigorously pursue a mitigation defense based on applicant's voluntary intoxication at the time of the offense (9) and to further investigate applicant's background did not prejudice applicant. See Wiggins, 539 U.S. at 534 (prejudice assessed by reweighing the evidence in aggravation against the totality of available mitigating evidence). Evidence was also presented at applicant's trial that, while in the county jail awaiting trial for this offense, applicant and another county-jail inmate wrote a letter to President Clinton threatening, in rather vulgar language, to kill him and rape his wife and daughter. When a U.S. Secret Service Special Agent questioned applicant about the letter, applicant admitted that he wrote the letter, and he "reiterated every sentiment expressed in the letter." (10) The habeas court's findings summarize this letter.
Those items say that the author was writing to the "fucking president": that his name is [applicant]; that he and his friend Jamie Charles Nunn were going to kill the President; that he was going to "fuck" the President's daughter; that he wanted the President to see him "fuck" his wife and his "stupid ass" daughter; that they were then going to kill the President or "blow (up)" the White House: and that he and his friend were in jail. (R. XLIV-92). They then say that Applicant just wanted the President to know what was going to happen to "the mother-fucker"; that he and Nunn wanted to do "that" but were locked up; that he had gotten some guys that work for them who would do it; that he was 18-years-old and his friend Jamie was 19; that they had connections and wanted to kill the President; and that Applicant and Jamie were then going for the Vice-President too. (R. XLIV-92).
The exhibits then states [sic] that Applicant hates the President; that the President is not doing a "fuck thing"; that he wants the President's daughter to feel "my dick in her mouth" and his wife too; that Applicant must close the letter; and that "we" just want the President to die. (R. XLIV-92). They also indicate that the letter was signed "Your friend (sic), [applicant] and Jamie Charles Nunn" and that a second page stated "I do not fuck around. I want him dead". (R. XLIV-92-93).
The State also presented some powerful victim-impact evidence. The habeas court's findings summarize this evidence. For example,
Patricia Palomo said that she had not believed what was happening when she came into her mother-in-law's house and saw her mother-in-law and her daughter; that she couldn't believe that it was happening to her mother-in-law and her baby; that Amanda was everything to her; and that it was very difficult for her to have children, as she could not carry them full term. (R. XLIII-23-24). She also said that she had lost her first baby; that Amanda had then been born prematurely and had not been expected to live; that she felt that she had failed to protect Amanda like she was supposed to; and that she wakes up every day, wants to start to fix Amanda breakfast and get her ready for school, and then stops and wonders what she is doing. (R. XIII-24-25).
Ms. Palomo then explained that she has been in denial that Amanda is dead; that she wanted it to be the same as it was before; that she would always reassure Amanda that she would always protect her; that she cannot live without her baby and wishes she was dead; and that she had thought about suicide, but had decided not to kill herself since her faith taught her that suicide would keep her from seeing Amanda in heaven. (R. XIII-25-26).
This witness then stated that she had first heard the details of what had happened while listening to the prosecution's final argument; that she could not believe that a person could do that to another human being and a baby; that she could not believe what she was hearing about what her baby had gone through; that she had wished that it had happened to her; and that she could not believe the way the victims were killed. (R. XLIII-26-27).
The totality of the available mitigating evidence does not outweigh the evidence in aggravation. See Wiggins, 539 U.S. at 534. There is no reasonable probability that applicant's "troubled" childhood evidence would have caused anyone on applicant's jury to answer the special issues any differently than they did at applicant's trial in light of the brutal nature of this offense, applicant's subsequent threats of more rape and murder and the other circumstances. See id.; compare Miniel v. Cockrell, 339 F.3d 331, 347-48 (5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004) (petitioner's "past violent behavior would overwhelm any of the proposed mitigating evidence [of petitioner's 'rough' childhood] in determining future dangerousness. . .[petitioner] has failed to present 'evidence of sufficient quality and force to raise a reasonable probability that, had it been presented to the jury, a life sentence would have resulted'").
With these comments, I concur in the Court's judgment to deny habeas corpus relief.
Hervey, J.
Filed: June 28, 2006
Publish
1. See generally Strickland v. Washington, 466 U.S. 668 (1984).
2. See Wiggins v. Smith, 539 U.S. 510, 535 (2003) (evidence about a defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background may be less culpable than defendants who have no such excuse) (internal quotes omitted) quoting in part Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (underlying Supreme Court's mitigation jurisprudence "is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, 'evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.'"); see also Tennard v. Dretke, 542 U.S. 274, 285 (2004) (constitutionally relevant mitigating evidence is evidence that sentencer could reasonably find warrants a sentence less than death).
3. Contrary to the testimony of applicant's trial counsel at the habeas hearing, Milstein states in her affidavit, which relies heavily on statements by applicant, his mother, his brother and the aunt:
We have concluded from the investigation, however, that [applicant's] trial counsel only contacted and interviewed three witnesses-[the mother], [the brother] and [the aunt]. Of these three, only [the mother] was interviewed to a significant extent. [The brother], who testified, was never contacted prior to trial, and was only interviewed briefly right before he testified. [The aunt] was contacted a number of times by telephone, but was only interviewed interviewed [sic] to any extent the day of trial. [The aunt] did not testify at trial.
4. Evidence was presented at the habeas hearing that Alamia has a PhD. and teaches psychology at a local university. Evidence was also presented at the habeas hearing that Alamia is not licensed to practice psychology by the Texas Board of Standards and Professional Counseling and that Alamia "should not be working outside the university setting."
5. Applicant's trial counsel testified that Alamia did not provide any kind of written report.
6. For example, we note from Milstein's affidavit that applicant's new evidence of a "troubled" childhood relies heavily on statements by applicant and his mother who apparently are more forthcoming now than they were before applicant's trial. See also Wiggins, 539 U.S. at 523-24 (counsel's duty to investigate further based, in part, on defendant's "description of his own background as 'disgusting,' and observing that he spent most of his life in foster care").
7. The habeas record in this case supports a finding that applicant was not forthcoming with evidence of his "troubled" childhood.
8. Habeas counsel suggested at the habeas hearing that ABA standards require "a thorough investigation, going beyond what the client tells you." Strickland, however, states that ABA standards "are guides to determining what is reasonable, but they are only guides." Strickland, 466 U.S. at 688; see also Wiggins, 539 U.S. at 524 (same but deleting the language "but they are only guides"). It does not appear that Strickland was intended to empower the American Bar Association, by promulgating new ABA standards, to negate portions of Strickland and the Constitution. And, despite Wiggins' deletion of Strickland's "but they are only guides" language, Wiggins still retains Strickland's language that ABA standards "are guides to determining what is reasonable." See Wiggins, 539 U.S. at 524. (Emphasis added).
9. I agree with the Court's ultimate conclusion that counsel was not deficient for failing to present a mitigation case based on temporary insanity caused by applicant's voluntary intoxication. Several of the habeas court's findings on this issue are also set out:
275. After all, reliance on the theories Applicant and habeas counsel say trial counsel should have urged would have involved telling the jury that it should consider the fact that Applicant had taken rohypnol on the night in question as a factor mitigating against the death penalty for killing a 68-year-old widow and her blind 4-and-a-half-year-old granddaughter because the drug made him temporarily insane; that he had thus not understood or appreciated the wrongfulness of his conduct; and that the rohypnol may have even caused aggressive behavior or a "rage reaction."
276. Such an argument would have also forced counsel to try to explain how Applicant, though allegedly temporarily insane and not able to comprehend the wrongfulness of his conduct, was nonetheless coherent enough to repeatedly mention the need to go back to the scene and recover the weapon he had left behind.
277. A competent attorney could certainly take the position that any attempt to argue those theories would backfire on the defense by making the jury believe that Applicant and his attorneys were simply trying to explain away his unconscionable behavior and escape the consequences of his actions.
278. Such an attorney could also adopt the view that such evidence of voluntary intoxication on rohypnol would be viewed by the jury as an aggravating circumstance, rather than a basis for mitigation.
10. The relevant portion of this Court's opinion on direct appeal states:
At the punishment phase of trial, U.S. Secret Service Agent Juan Landa testified that he went to [sic] Hidalgo County jail to question [applicant] about a letter he had written wherein he threatened to kill the President and rape his wife and daughter. (Footnote omitted). Another inmate also signed the letter. While questioning appellant, Landa obtained a written statement from him in which he admitted writing the letter and reiterated every sentiment expressed in the letter. In a hearing outside the presence of the jury, it was brought out that Landa had generated a report on the incident which apparently concluded that appellant felt little to no remorse about the instant capital murder. Landa was not questioned about this report nor was it otherwise brought before the jury.
Martinez v. State, slip op. at 47-48 (Tex.Cr.App. No. 72,704, delivered June 30, 1999) (not designated for publication).
Document Info
Docket Number： AP-75,086
Filed Date： 6/28/2006
Precedential Status： Precedential
Modified Date： 9/15/2015