Opinion
WR-94,237-01
06-21-2023
EX PARTE MICHAEL DAVID LEWIS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR30418-A IN THE 238TH DISTRICT COURT FROM MIDLAND COUNTY
Newell, J., filed a dissenting opinion in which Richardson, J., joined.
ORDER
PER CURIAM.
Applicant was convicted of capital murder and sentenced to life without parole. The Eleventh Court of Appeals affirmed his conviction. Lewis v. State, No. 11-05-00301-CR (March 22, 2007). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Assistant District Attorney Ralph Petty was employed as the District Judge's law clerk at the same time he prosecuted this case. Applicant contends that this relationship between Petty and the District Judge, who officiated all of Applicant's pretrial and trial proceedings, undermined the structural integrity of the trial and deprived Applicant of a fair trial before an impartial judge. The habeas court found that, since Petty did not participate in Applicant's writ proceedings, Applicant was not entitled to relief.
We order that this application be filed and set for submission to determine whether the fact that Petty was the District Judge's law clerk when he prosecuted this case entitles Applicant to relief. The parties shall brief these issues.
Applicant appears to be represented by counsel. If not, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him. See Tex. Code Crim. Proc. art. 26.04. Within sixty days from the date of this order, the trial court shall send to this Court a supplemental transcript containing a confirmation that Applicant is represented by counsel, the order appointing counsel, or a statement that Applicant is not indigent or does not want to be represented by counsel. All briefs shall be filed with this Court within ninety days from the date of this order.
Newell, J., filed a dissenting opinion in which Richardson, J., joined.
Today the Court orders briefing to determine whether Applicant is entitled to habeas corpus relief on the basis that one of the prosecutors who tried Applicant's case also worked for the District Judge as a law clerk at the time the District Judge presided over Applicant's death penalty trial. The answer to that question is "Yes." Further, both Applicant and the State agree that Applicant is entitled to relief, so I do not believe briefing on the issue will be helpful. We should just grant relief and save the fight over whether to deny relief for when a truly questionable case arises.
In re Murchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process."); see also Tumey v. Ohio, 273 U.S. 510, 531 (1927) ("[e]very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law."); Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (due process requires a neutral and detached hearing body or officer).
See, e.g., Ex parte Lozoya, 666 S.W.3d 618, 623 (Tex. Crim. App. 2023).
With these thoughts, I dissent to the Court's decision not to grant relief in this case.