Hernandez, Ritchie Elbert AKA Hernandez, Ritchie E.

Court of Appeals of Texas

Hernandez, Ritchie Elbert AKA Hernandez, Ritchie E.

DecidedNovember 2, 2015

DocketWR-84,080-01

StatusPublished

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Hernandez, Ritchie Elbert AKA Hernandez, Ritchie E., (Tex. Ct. App. 2015).

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Opinion

WR-84,080-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/30/2015 4:41:22 PM Accepted 11/2/2015 9:13:41 AM WRIT NO. C-372-008773-0924992-A ABEL ACOSTA CLERK TRIAL COURT NO. 09-24992D RECEIVED EX PARTE § IN THE TEXAS COURT OF CRIMINAL APPEALS § 11/2/2015 ABEL ACOSTA, CLERK § COURT OF § RITCHIE HERNANDEZ § CRIMINAL APPEALS

OBJECTIONS TO THE TRIAL COURT’S ORDER ON HERNANDEZ’S APPLICATION FOR A WRIT OF HABEAS CORPUS

In Hernandez’s Application for a Writ of Habeas Corpus, he argued that his

counsel was ineffective in, among other things failing to investigate whether the knife

found by the police could, in fact, have been the murder weapon. Hernandez pointed

to an affidavit by since-retained crime-scene expert Ed Hueske, who concluded that

the knife discovered could not have been the murder weapon at all. The district court,

however, adopting the State’s proposed findings of fact and conclusions of law,

without holding a hearing, determined that counsel was not ineffective because it

found Hueske was unqualified and offered unsupported opinions.

In fact, Hueske was eminently qualified, as evidenced by his curriculum vitae.

See Attached. But, regardless, whether Hueske was qualified to provide the opinions

set forth in his affidavit was a credibility determination, and a witness’s credibility

presents an “in court” issue for the finder of fact. In Jackson v. State, 17 S.W.3d 664,

670 (Tex.Crim.App.2000), the Court of Criminal Appeals held that, when faced with

an expert witness, a trial court should conduct a hearing outside the presence of the

jury to determine whether the requirements of Texas Rule of Evidence 702 are met.

See TEX. R. EVID. 702 (“If scientific, technical, or other specialized knowledge will

1 assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training or education

may testify thereto in the form of an opinion or otherwise.”); see Shaw v. State, 329

S.W.3d 645, 650 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (“After a hearing

outside the jury’s presence, the trial court found her qualified to testify as an

expert.”). Indeed, before the admission of expert testimony at trial, such a hearing is

mandatory and “a trial judge’s denial of a timely and proper motion for such hearing

would constitute error.” Alba v. State, 905 S.W.2d 581, 588 (Tex.Crim.App.1995); see

also Coble v. State, 330 S.W.3d 253, 273 (Tex.Crim.App.2010) (upon request, a trial

judge must conduct a “gatekeeping” hearing outside the presence of the jury to

determine whether scientific evidence and testimony is sufficiently reliable and

relevant to help the jury in reaching an accurate result).

It should be no different whether the proceeding before the court is a jury trial

or writ hearing. See Ex parte Abrams, No. AP-75,366, 2006 WL 825775, *2 (Tex. Crim.

App. 2006) (“The court appears to rely on Officer Suro’s testimony during the habeas

hearing, in which she asserted that she was not and is not now qualified to testify as

an expert on blood spatter evidence.”). In a case that turns on issues of credibility, it

is inappropriate to resolve controverted facts without an evidentiary hearing where

witnesses are subject to cross-examination. In Ex parte Byars, 176 S.W.3d 841 (Tex.

Crim. App. 2005), Presiding Judge Keller noted that the most effective way of

determining the reliability of witness testimony is through the “crucible of cross-

2 examination.” Id. at 842 (concurring opinion). Similarly, in Charles v. State, 146

S.W.3d 204 (Tex. Crim. App. 2004), the Court stated

Affidavits . . . are widely and appropriately used in criminal and civil proceedings to determine if there are material disputed facts and to define exactly which facts are disputed. They are not always well-suited for resolving disputed facts.

Id. at 210 (footnotes omitted).

Accordingly, in this case, the district court should not have decided that

Hueske’s curriculum vitae alone resolved all the issues in this case. This is an

inappropriate way to make a credibility determination. Valid judgments about

credibility cannot be made from a review of a paper record alone. Accordingly,

Hernandez objects to the trial court’s findings and conclusions and urges this Court

to order a live evidentiary hearing to resolve whether Hueske is in fact a qualified

expert. See, e.g., Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (petitioner

entitled to discovery when there is factual dispute which, if resolved in petitioner’s

favor, would entitle petitioner to relief, and the State has not afforded petitioner a

full and fair evidentiary hearing).

For these reasons, and all those urged in Hernandez’s original memorandum

in support of his application for a writ of habeas corpus, Hernandez respectfully

requests this Court to reject the district court’s recommendation.

Respectfully submitted,

3 /s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700 ba@sualaw.com

/s/ Brett Ordiway BRETT ORDIWAY State Bar No. 24079086 bordiway@sualaw.com

SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax)

Counsel for Applicant

4 Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of the foregoing Objections to the Trial Court’s Order on Hernandez’s Application for a Writ of Habeas Corpus was mailed to the Tarrant County District Attorney’s Office and the 372nd Judicial District Court of Tarrant County on October 30, 2015.

/s/ Bruce Anton Bruce Anton

5 CURRICULUM VITAE Phone: (903) 723-3612 Edward E. Hueske Cell: 972-898-7497 E-mail: xprtwit@aol.com www.edhueske.com

Present Positions:

• Director, Forensic Training & Consulting, LLC since 1997

Former Positions:

• Instructor of Chemistry, Blinn College, Brenham, Texas 1970-1974 • Assistant Laboratory Director, Fort Worth Police Department, 1974-1983 • Adjunct Instructor of Chemistry, Weatherford College, Weatherford, Texas 1976-1980 • Adjunct Instructor of Criminal Justice, University of Texas at Arlington, 1980-1983 • Supervising Criminalist, Arizona Department of Public Safety, 1983-1996 (ret.) • Adjunct Instructor of Police Science, Northern Arizona University, 1984-1994 • Firearms Examiner, Tulsa Police Department, Tulsa, Oklahoma 1996-1997 • Adjunct Instructor of Police Science, Tulsa Community College, 1997 • Laboratory Manager, Weckerling Scientific Laboratories, Carrollton, Texas 1997-1998 • Criminalist, Forensic Consultant Services, Fort Worth, Texas, 1998-1999 • Principal Lecturer/Criminalistics Coordinator, University of North Texas, 1999-2012 (ret.)

Formal Education:

• B.S., Chemistry, Sam Houston State University, 1968 • M.A., Chemistry, Sam Houston State University, 1971

Special Courses Attended:

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