Opinion
WR-86,568-02
07-28-2023
IN RE GABRIEL PAUL HALL, Relator
Do Not Publish
ON MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF MANDAMUS IN CAUSE NO. 11-06185-CRF-272 IN THE 272ND JUDICIAL DISTRICT COURT BRAZOS COUNTY
ORDER
PER CURIAM
We have before us a Motion for Leave to File a Petition for Writ of Mandamus and the accompanying Petition.
In October 2015, a jury found Relator guilty of the offense of capital murder. Based on the jury's answers to the statutory punishment questions set out in Texas Code of Criminal Procedure Article 37.071, the trial court sentenced Relator to death.
Unless otherwise indicated all references to Articles in this order refer to the Code of Criminal Procedure.
This Court affirmed Relator's conviction and sentence on direct appeal. Hall v. State, ____ S.W.3d ____, No. AP-77,062 (Tex. Crim. App. Dec. 8, 2021). Relator's initial post-conviction application for a writ of habeas corpus is currently pending in this Court. See Ex parte Hall, No. WR-86,568-01.
In December 2022, the trial court ordered a January 2023 evidentiary hearing to resolve issues raised in Relator's sixth habeas claim (alleging ineffective assistance of counsel (IAC)). On February 7, 2023, we received the reporter's record of the January hearing, and eight days later we received Relator's motion to correct the hearing record.
At the January hearing, habeas counsel David Dow questioned Relator's trial counsel John Wright about his representation of Relator. According to the motion to correct, when Wright left the witness stand, he stopped at the bench and spoke to the habeas judge, the Honorable J.D. Langley. Habeas co-counsel Jeff Newberry allegedly overheard the conversation. According to Dow and Newberry, Newberry heard Wright tell the judge that he was seeking to be added to the Second Administrative Judicial Region's list of attorneys qualified to represent death-sentenced defendants on direct appeal, and he asked the judge to consider him for any such appointment.
In the motion to correct, Dow and Newberry emphasize that any attorney found to have rendered IAC cannot be appointed to represent a death-sentenced defendant. Thus, they assert, Wright's expressed desire to be appointed as such counsel "is relevant to any credibility determination regarding Mr. Wright's January 30 testimony and, for that reason, [his conversation with the judge] should be included in the record of the January 30 hearing."
On March 16, 2023, Relator's counsel filed a "Motion to Find [Relator' s] Right to Due Process in this Proceeding was Violated Due to Article 26.052 of the Texas Code of Criminal Procedure." In this motion, Relator notes that he has raised an IAC claim in his writ application. He further notes that Wright expressed in the January hearing his intention to continue working on death penalty cases. Relator explains that, if Wright is found to have rendered ineffective assistance to Relator, then Article 26.052 would thereafter bar him from working on capital cases. Thus, "at the January 30 hearing, Wright had a professional, pecuniary, and reputational interest that was in direct conflict with [Relator' s] interests." Therefore, Relator argues, Article 26.052 impedes a habeas petitioner's ability to press an IAC claim, thus violating his due process rights. Specifically, Relator argues, the interests of an attorney who is alleged to have rendered IAC, but who intends to continue representing death-sentenced clients on appeal, are adverse to those of his former client. And, therefore, the attorney "has a professional interest in being less than forthcoming at any hearing in which he is called to explain his actions at trial, because that testimony could result in his subsequently being unable to represent other death-sentenced defendants."
On April 5, 2023, we ordered the trial judge to review the reporter's record of the January hearing and determine if anything was incorrect or improperly omitted. Ex parte Hall, No. WR-86,568-01 (Tex. Crim. App. Apr. 5, 2023) (not designated for publication). The trial court held a hearing on the issue on April 25, made findings and conclusions, and ordered the record sent to this Court. In the April 25 hearing, Relator again argued that, due to Article 26.052, an attorney called to defend his trial actions in the context of an IAC claim has a professional interest in being less than forthcoming at any hearing because his testimony could result in his subsequently being unable to represent other death-sentenced defendants.
The State took the position at the April hearing that Relator's "Motion to Find [Relator's] Right to Due Process in this Proceeding was Violated Due to Article 26.052 of the Texas Code of Criminal Procedure" was actually a new, untimely writ claim. The habeas court found that the document, "is insufficient to constitute a Subsequent Application under Tex. Code Crim. Pro. Art. 11.071, §5 and should be dismissed without consideration of its merits." As discussed at the end of this order, we find that this language requires clarification.
Relator, on the other hand, asserts that the document in question is, in fact, a motion, and he asserts that the trial court had a ministerial duty to rule on the motion's merits. Therefore, Relator has filed this petition for a writ of mandamus.
Before we rule on Relator's Motion for Leave to File a Petition for Writ of Mandamus and the accompanying Petition, we want to hear from Respondent, Judge J.D. Langley, sitting by assignment in the 272nd District Court. Specifically, within twenty (20) days of the date of this order, Judge Langley is asked to explain his finding on this document and his position. We ask Judge Langley to clarify whether he finds that the document (1) is a subsequent writ, but one that does not rise to the level of meeting Article 11.071 § 5; (2) does not qualify as a subsequent writ because it does not attack Relator's conviction or sentence (and therefore, is a motion); or (3) is something else entirely. See Ex parte Kerr, 64 S.W.3d 414 (Tex. Crim. App. 2015). If Judge Langley finds the document to be a motion, then we further ask him to clarify why he recommended dismissing it rather than ruling on it directly. Judge Langley may include any additional information in his response that he deems appropriate to resolving the mandamus currently before us. The State is invited to respond within the same time period.
IT IS SO ORDERED.