Driver, Ex Parte William D.

Opinion

PD-1660-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 12/29/2014 2:07:29 PM Accepted 12/30/2014 10:11:28 AM ABEL ACOSTA

NO. ___________________ CLERK

IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS

WILLIAM DRIVER * APPELLANT

*

V. *

*

STATE OF TEXAS * APPELLEE

Trial Court Cause No. 1396922 In The 182nd District Court Of Harris County, Texas

Hon. Frank Price, Judge Presiding

First Court of Appeals Cause No. 01-14-00375-CR PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS:

Comes now WILLIAM DRIVER, by and through his counsel on appeal, and files this his Petition for Discretionary Review pursuant to Tex.R.App.P. 70.1. In support of his prayer for review, he would respectfully show the Court the following:

December 30, 2014

2

GROUNDS FOR REVIEW NUMBER ONE

IS PRE-TRIAL HABEAS CORPUS RELIEF AVAILABLE TO CHALLENGE AN INDICTMENT ISSUED BY A GRAND JURY PURSUANT TO PROCEDURES THAT FAIL TO PROVIDE DUE PROCESS AND DUE COURSE OF LAW?

ARGUMENT AND AUTHORITIES

A. THE RIGHT TO AN UNBIASED GRAND JURY IS PARAMOUNT

There are few more fundamental rights in Anglo-American jurisprudence than the right not to be tried until, and unless, an indictment has been issued by a properly constituted, fair and neutral Grand Jury. An unbiased grand jury is fundamental to due process. See Costello v. United States, 350 U.S. 359, 363 (1956). As the Tyler Court of Appeals has noted, “[t]he integrity and independence of our grand jury system must be protected from unwarranted intrusion by way of prosecutorial misconduct as well as improper influences exerted upon the grand jurors which is [SIC] calculated to evoke grand jury action based on prejudice and bias alone.” Whittington, v. State, 680 S.W.2d 505, 510 (Tex. App.—Tyler 1984, pet. ref’d). “Even where there is no showing of actual bias in the tribunal…due process is denied by circumstances that create the likelihood or the appearance of bias.” Peters v. Kiff, 407 U.S. 493, 502 (1972).

3

B. TEXAS COURTS HAVE A DUTY, TO PROTECT A DEFENDANT’S RIGHTS TO DUE PROCESS AND DUE COURSE OF LAW BEFORE THE GRAND JURY

The right not to be tried in the absence of a properly issued indictment is a meaningless guarantee of form without substance if not capable of being enforced pre-trial. This is similar to a pre-trial writ of Habeas Corpus in the double jeopardy context, in which trial itself is barred by fundamental Constitutional principles. In Ex Parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982), relying on Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), this Court held “[w]e are compelled to hold that there is a Fifth Amendment right not to be exposed to double jeopardy, and that it must be reviewable before that exposure occurs.” Id. at 555; U.S. CONST, amends. V and XIV; Art. 1, sec. 10, TEX. CONST. This Court then explained that a pretrial writ under Chapter 11, V.A.C.C.P. was the mechanism to be utilized in seeking relief from exposure to double jeopardy.

The right not to be tried in the absence of a properly issued grand jury indictment is of no less import than the right to be free from Double Jeopardy. Article I, Sec. 10 of the Texas Constitution states that “… no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary…” The Grand Jury guarantee protects a defendant from being put in

4

jeopardy on a felony charge without the State first obtaining a lawfully acquired indictment. Absent a lawfully acquired indictment, the State cannot force a Defendant to endure “the personal strain, public embarrassment, and expense of a criminal trial…” Ex Parte Robinson, 641 S.W.2d 552, 553 (Tex.Crim.App. 1982).

An indictment issued by a grand jury that has been tampered with or manipulated nullifies the due process and due course of law guarantees of Article I, Sec. 10 and makes of them a meaningless formality, not the fundamental Constitutional right Texas law intends. This is not a situation in which the evidence put before the Grand Jury is at issue in determining the validity of the indictment. What is at issue here in are the overly suggestive, manipulative, and unfair procedures used to “train” and “orient” the grand jurors, procedures that expert testimony shows have a very high tendency to render the resultant grand jury biased and partial. But the principles are best considered by asking whether this Honorable Court would allow grand jury manipulations in extreme circumstances. If this Honorable Court would halt extreme proceedings, then it is a question of setting the standards for when proceedings must be terminated.

Consider, for example, a situation in which evidence showed that Grand Jurors were paid per indictment issued. Would any Court hold that such a system could not be questioned before trial? Or should it come to light that the Grand Jurors had

5

been threatened with prosecution should they fail to issue a true bill? Would any Court in the State of Texas say that a writ of Habeas Corpus did not lie to prevent the injustice of such an indictment going to trial? Would such Grand Jury procedures, wholly bereft of due process, justify forcing a Defendant to endure “the personal strain, public embarrassment, and expense of a criminal trial…” Robinson, supra at 553.

The Court below erred in analogizing this case to U.S. v. MacDonald, 435 U.S.

850 (1978), a case which found that speedy trial rights could not be enforced pre- trial through habeas litigation. The MacDonald opinion’s language clearly embraces the present situation:

“Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a ‘right not to be tried’ which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial.”

MacDonald at 186. The constitutional infirmity inherent in this matter is the threat of a trial on the authority of a constitutionally invalid indictment, issued through procedures that violate due process and due course of law. The constitutional protections provided by the Constitutional requirement of a properly issued indictment are eviscerated if such protections can only be enforced post-trial.

Where forcing a Defendant to proceed to trial and then (if unsuccessful) to

6

appeal violates fundamental Constitutional rights, Texas appellate courts are not only empowered to intervene, but are duty-bound to do so. Due process and due course of law are violated when circumstances exist that clearly create (at a bare minimum) the likelihood or the appearance of a biased grand jury. Peters v. Kiff, supra. The Court below erred in holding that it was not authorized to intervene.

C. THIS CASE MUST BE REMANDED FOR CONSIDERATION ON ITS MERITS

The Court below never reached the merits of the Petitioner’s complaint. While the issues involved in this case are novel, they are both timely and fundamental and should be taken up by the Court below. Accordingly, this case should be remanded for full consideration on the merits.

The issue here in whether grand jury “orientation and training” procedures that have a high likelihood – in fact, a near certainty – of biasing the grand jurors in certain categories of cases violate the Constitutional guarantees of due process and due course of law, at least in those categories of cases in which such bias is most likely. This is not a challenge to the evidence which was placed before the grand jury, but a challenge to the constitutionality of the unfair procedures involved. This is a challenge to the unchecked authority of the State in manipulating and controlling grand jury “orientation and training.”

7

The Grand Jury in this case was “trained” through the use of a “firearms training simulator” (FATS). R.R. 8. The use of these simulators to “train” grand jurors is controversial, and has been widely discussed in the media. 1 The mechanics of the simulator are not controverted. The “trainee” is given a modified firearm. They watch a scenario on a video screen in which a potential for violence develops. They must decide when and if to shoot. There are twelve scenarios: eight of them explicitly involve putting the trainee in the position of a police officer, and four are silent as to the role of the trainee. See R.R., 48-51, State’s Exhibit 1.

The primary market for these devices is police officer training. R.R. 25. The simulations are not modified for grand jury usage. R.R. 27, 74. The trainees are “debriefed” after the simulation by a certified peace officer. R.R. 73, 74-76. The State of Texas has never had any psychologists or other qualified experts examine

1 See for a few examples, James Pinkerton, “Bulletproof, Part 3: Hard to Charge”, Houston Chronicle, December 1, 2013 (http://www.houstonchronicle.com/local/investigations/item/Bulletproof-Part-3-Hard-tocharge -24421.php); Juan A. Lozano, “Harris County Grand Jury Shooting Simulator Stirs Debate”, WFAA Channel 8, May 5, 2014 (http://www.wfaa.com/news/texas-news/Texasgrand -jury-shooting-simulator-stirs-debate-257971791.html); Ed Krayewski, “Houston Grand Jurors Subjected to Shooting Simulator to Prepare for Police Shooting Cases”, Reason, May 5, 2014 (http://reason.com/blog/2014/05/05/houston-grand-jurorssubjected -to-shooti); “Simulator trains Harris County Grand Jurors on Self Defense Scenarios”, KHOU, July 26, 2013 (http://www.khou.com/story/local/2014/08/06/12103674/), Mark Hansen, “Ready, Aim – Indict!”, ABA Journal, Oct 1, 2007 (http://www.abajournal.com/magazine/article/ready_aim_indict/).

8

what effect these simulators may have on grand jurors. R.R. 67.

This is not a case involving merely “the State's general orientation to the grand jury on general areas of the law prior to presentment of cases to the grand jury.” Carter v. State, 691 S.W.2d 112, 116 (Tex. App. Fort Worth 1985). It cannot be over-emphasized that the simulator employed herein is an experiential, visceral training device, not a didactic learning tool. It was not designed with grand juror training in mind – it is primarily used for training police officers. R.R. 25, 27, 74.

There must be some due process and due course of law limitations placed on the State’s discretion in the orientation and training of grand jurors. It is important to note that grand jury “orientation and training” programs exist entirely outside of the procedures authorized by the Texas Code of Criminal Procedures. The Texas legislature has never seen a need for such programs: in fact, Chapters 19 and 20 of the Texas Code of Criminal Procedure do not mention grand jury orientation and training. Art. 19.35 provides the court shall instruct the grand jury as to their duty. Art. 20.05 and 20.06 provides that the grand jury may request advice from the attorney representing the State or from the Court, respectively; the law does not authorize the State to create arbitrary and unfair “orientation and training” programs.

We are thus presented with extra-legal procedures that are invoked to address a non-existent need, which have a high likelihood of biasing some or all of the grand

9

jurors in certain categories of cases, and which the State of Texas has never even investigated to determine whether they may be unfairly influencing grand jury proceedings. The grand jury system is not infinitely malleable, and it is not the private property of the District Attorney’s offices throughout the State for them to do with as they please. “Prosecutors bear a particularly weighty duty not to influence the jury because the defendant has no representative to watch out for his interests before the grand jury.” Maretick v. Jarrett, 204 Ariz. 194, 196, 62 P.3d 120, 122 (2003) Any “orientation and training” programs must remain unquestionably neutral to comply with due process and due course of law: programs designed and intended with the purpose of training police officers fall far short of that standard.

Somewhat surprisingly, these are issues this Honorable Court has never had to address in a written opinion. Clearly, due process and due course of law place some limits on the discretion of the State to “orient and train” grand jurors, using methods and procedures not authorized by the Legislature. The parameters of those limits have yet to be considered by this Honorable Court. The time for doing so is now.

This case squarely presents these important issues, and the Court of Appeals has not considered the merits.2 That is a pre-requisite for this Honorable Court to

2 The first step in considering the merits should be to remand this case back to the trial court, for complete findings of fact and conclusions of law, addressing the testimony of Dr. Bryan Sweeney. The losing party on a motion to suppress is, on request, entitled

10

address the merits of the case. Accordingly, the Petitioner requests that this Honorable Court remand this case back to the Court of Appeals for consideration on the merits.

CONCLUSION AND PRAYER FOR RELIEF The Panel Opinion of November 20, 2014 was erroneous in that it failed to find that pre-trial habeas relief was available to challenge an indictment issued by a grand jury that had been “trained and oriented” in such a manner as to deprive the Petitioner of due process and due course of law. Because habeas relief is available in such a situation, this case should be REMANDED to the Court below for consideration on the merits.

By: /s Clay S. Conrad CLAY S. CONRAD State Bar No. 00795301 PAUL C. LOONEY State Bar No. 12555900 LOONEY & CONRAD, P.C.

11767 Katy Freeway, Suite 740 Houston, Texas 77079 Ph. No. (281) 597-8818

to “essential findings” of fact that are “adequate to provide an appellate court with a basis upon which to review the trial court's application of the law to the facts.” See State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App. 2011) (quoting State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)) The Petitioner filed a Motion to Remand to Trial Court for Complete Findings of Fact and Conclusions of Law on August 13, 2014, which has never been ruled on.

11

Fax No. (281) 597-8284 Attorneys for Appellant

12

Certificate of Service

I certify that on December 19, 2014 a true and correct copy of the above and foregoing Appellant=s Petition for Discretionary Review was properly mailed on this day to:

Harris County District Attorney's Office State Prosecuting Attorney=s Office Appellate Division P.O. Box 13046 1201 Franklin Austin, Texas 78711 Houston, TX 77002

/s Clay S. Conrad Clay S. Conrad

Certificate of Compliance Relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this Petition is 2211. The body of the document is in Times New Roman 14 point font. The footnotes are in Times New Roman 12 point font.

/s Clay S. Conrad Clay S. Conrad