EX PARTE CHARLES DEAN HOOD (other)

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. W296-80233-90 IN THE

366TH DISTRICT COURT (1) OF COLLIN COUNTY

We have before us a subsequent application for writ of habeas corpus filed pursuant to Article 11.071 5. The basis for this filing is applicant's assertion that he was denied a fair trial because of a romantic relationship between the trial judge and the prosecutor.

Applicant was convicted of the capital murder of Ronald Williamson and Tracie Lynn Wallace. The jury answered the special issues in such a manner that a sentence of death was imposed on September 7, 1990. This Court affirmed the conviction and sentence on direct appeal. Hood v. State, No. AP-71,167 (Tex. Crim. App. Nov. 24, 1993)(not designated for publication). Applicant's initial application for writ of habeas corpus was denied. Ex parte Hood, No. WR-41,168-01 (Tex. Crim. App. April 21, 1999)(not designated for publication). Applicant filed a subsequent application in the trial court on May 24, 2004. The subsequent application was dismissed. Ex parte Hood, No. WR-41,168-02 (Tex. Crim. App. April 13, 2005)(not designated for publication). Applicant filed a second subsequent application on June 22, 2005. We remanded to the convicting court for resolution of the claim. When the case was returned to this Court, we held that applicant, in fact, had not met the requirements of Article 11.071, 5, for consideration of subsequent claims and dismissed his application. Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007).

On June 12, 2008, applicant filed another subsequent application for writ of habeas corpus and an original application for writ of habeas corpus. In the applications, applicant asserted that he was denied a fair trial because of an alleged romantic relationship between the trial judge and the prosecutor that applicant claimed was "common knowledge" at the time of trial. We dismissed the Article 11.071 application and denied leave to file the original application. Ex parte Hood, Nos. WR-41,168-04 & WR-41,168-05 (Tex. Crim. App. June 16, 2008)(not designated for publication). On June 17, 2008, we denied a second original application for writ of habeas corpus. Ex parte Hood, No. WR-41,168-06 (Tex. Crim. App. June 17, 2008)(not designated for publication). On August 20, 2008, the clerk of the 296th District Court forwarded a subsequent writ application to this Court as required by Article 11.071, 5(b). This Court dismissed the application. Ex parte Hood, No. WR-41,168-09 (Tex. Crim. App. Sept. 5, 2008)(not designated for publication).

On September 8, 2008, we received another subsequent writ as well as other motions in the case. In an order issued on September 9, 2008, this Court denied a motion to recuse and dismissed the subsequent application. We also determined that, because of developments in the law regarding nullification instructions, it would be prudent to reconsider the decision we issued in dismissing applicant's second subsequent writ application. See Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007). Accordingly, we granted his motion to stay his execution so that we could accomplish that task.

In the meantime, the 366th Judicial District Court ordered Judge Verla Sue Holland and former District Attorney Tom O'Connell to give depositions pursuant to Texas Rule of Civil Procedure 202 (petition to take pre-suit investigatory depositions). In the depositions, both parties admitted that they had been intimately involved at one point in time. Although both parties stated that the affair had ended by the time of applicant's trial, the dates cited in the prosecutor's deposition seem to contradict this assertion.

Applicant now asserts that the new facts gleaned from the depositions satisfy the requirements of Article 11.071, 5, and either this Court or the convicting court should be allowed to review the merits of his claim that the affair constitutionally disqualified the trial judge from sitting on applicant's case and deprived applicant of his right to a fair and impartial tribunal. We agree that the discovery of new facts may result in a ruling that the dictates of Article 11.071, 5, have been met and may be followed by a remand to the trial court for a review of the merits of the claim.

However, before we determine whether the dictates of Article 11.071, 5, have been met here, we order the trial court to first resolve another issue. Throughout the litigation in this case, applicant has claimed that the affair between the trial judge and the prosecutor was "common knowledge." Even applicant's trial counsel were aware of this "common knowledge." But applicant did not try to obtain proof of the affair until some eighteen years after his trial. He also asserts that he had to go to extraordinary measures to obtain the proof he now has. However, the method by which applicant obtained the evidence supporting his claim, Texas Rule of Civil Procedure 202, which provides for depositions before suit or to investigate claims, became effective January 1, 1999. Yet applicant did not utilize this tool until after he was given an execution date. Further, he has filed other applications raising the claim since the date that tool became available.

Accordingly, the trial court shall collect or adduce any evidence it deems necessary to make a recommendation on whether the doctrine of laches bars the consideration of applicant's claim. While the State has the burden on the issue, both parties should be allowed to be heard on the matter. The court shall also collect or adduce any evidence it deems necessary to make a recommendation on whether applicant meets the dictates of Article 11.071, 5. The trial court's recommendations and the record of any proceedings conducted shall be returned to this Court within sixty (60) days of the date of this order.

IT IS SO ORDERED THIS THE 19TH DAY OF NOVEMBER, 2008.

Do Not Publish

1. This case has been in the 296th Judicial District Court. However, on September 26, 2008, the administrative judge of the district transferred the case to the 366th Judicial District Court.