Ex Parte Michael Jimenez

Cause No.
98-J-249-A
EX PARTE
MICHAEL JIMENEZ
IN THE DISTRICT COURT OF
MATAGORDA COUNTY, TEXAS
130th JUDICIAL DISTRICT COURT
FINDINGS OF FACT AND CONCLUSIONS OF LAW

Introduction
Michael Wayne Jimenez (Jimenez) filed an Application for a Writ of Habeas
Corpus Seeking Relief from Final Felony Conviction Under Code of Criminal
Procedure, Article 11.07.
Jimenez raised three grounds for relief in the application:
1.
Trial counsel was ineffective for failing to impeach Derrick Robinson.
2.
Appellate counsel was ineffective for failing to raise Batson error on

appeal, and
3.
There was insufficient evidence to support the conviction.
The court declined to designate Ground No. 3 in this proceeding. Habeas

corpus is an extraordinary remedy available only when no other adequate remedy at
law exists. Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). The
remedy therefore may not be used to assert claims that could have been asserted on
direct appeal. Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007). For
No. 98-J-0249-A; Ex parte Michael Jimenez
Page 1 of 33
this reason, sufficiency of the evidence, which can be asserted on direct appeal, may
not be raised collaterally. Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App.
2004).
Ground Nos. 1 and 2 related to ineffective assistance claims. Claims that an
applicants counsel provided ineffective assistance of counsel are cognizable in
habeas corpus proceedings. However, this court found these claims arose from a
1999 conviction affirmed by the Texas Court of Appeals in 2002.1 The length of time
between the conviction becoming final and this application raises the question
whether relief should be barred by laches. See Ex Parte Smith, 444 S.W.3d 661, 667
(Tex. Crim. App. 2014) ([A] court may sua sponte consider and determine whether
laches should bar relief).
This court acknowledged in the designation that the Texas Court of Criminal
Appeal instructs lower courts to act sparingly in raising laches questions sua sponte
in habeas corpus proceedings. Id., at 668. Shorter delays than shown here, however,
have resulted in remands to the trial court for laches consideration. Id., at 669
(describing a ten-and-a half year delay in filing for habeas relief, significant enough
for this Court to justly ask whether [Applicants] claim should be precluded by
laches). Here, the over 13-year delay since the conviction became final warrants the
same consideration.
1
Jimenez v. State, No. 1399776CR, 2002 WL 228794 (Tex. App. Corpus
Christi February 14, 2002, pet. refd)
Page 2 of 33
The court ordered Jimenez and the State to respond to the question whether or
not laches bars Jimenez from applying for this writ some 13 years after the Texas
Court of Appeals affirmed the conviction and the conviction became final. Jimenez
and the State each responded in turn. The court has considered the responses, the
courts file and for the reasons set forth below recommends a finding that Jimenezs
claims are barred by the laches doctrine.
Findings of Fact and Conclusions of Law
I.
The crime, trial, conviction and appeal.

1.
A Matagorda County grand jury indicted Jimenez for capital murder in
December 1998.
2.
The juvenile court certified Jimenez, 16 years old at the time of the
offense,2 as an adult and transferred the case to criminal court.3

3.
The trial court conducted an unfitness to proceed hearing before a jury
on August 25, 1998 (the Competency Hearing).4

4.
After hearing evidence in the Competency Hearing, the jury found
Jimenez was not unfit to proceed.5

2
Id., at *2, fn. 1
Id.
Id.
Id.
Page 3 of 33
5.
A subsequent jury convicted Jimenez of capital murder and he was
automatically sentenced to life in prison.6

6.
The Court of Appeals affirmed the conviction in February 2002 and the
Texas Court of Criminal Appeals refused discretionary review.7 Mandate issued.

II.
Jimenezs post-conviction activities.

7.
On February 28, 2003, the Matagorda County District Clerk received
a letter from Jimenez. That letters first sentence indicates Jimenez seeks for
information relating to his filing an application for writ of habeas corpus relief.
8.
On May 22, 2003, the Matagorda County District Clerk received and
filed a second letter from Jimenez. In that letter, Jimenez requests from the Clerk
records he purports are public records and states he has a petition for writ of habeas
corpus drafted.
9.
On June 23, 2003, Jimenez filed a Declaration of Inability to Pay Cost.
The letter includes an indigency affidavit and an accompanying letter requesting a

bench warrant to Matagorda County or alternatively, that records be sent to his prison
law library.
Id.
See supra note 1 and accompanying text,
Page 4 of 33
10.
On November 6, 2009, Jimenez again wrote the District Clerk
requesting his cause number.

11.
On April 20, 2011, the State Counsel for Offenders wrote the District
Clerk requesting certified copies of documents relating to Jimenezs Matagorda

County case.
12.
III.
Jimenez filed this application on February 2, 2016.
Jimenezs application is barred by laches.

13.
Under the Texas common law laches8 standard, adopted by the Texas
Court of Criminal Appeals, courts presented with a laches question on application for
writ of habeas corpus shall consider, all relevant circumstances, factors such as the
length of the applicant's delay in filing the application, the reasons for the delay, and
the degree and type of prejudice resulting from the delay. Ex Parte Perez, 398
S.W.3d 206, 217 (Tex. Crim. App. 2013).
A.
The length of Jimenezs delay is excessive.
14.
Mandate issued and Jimenezs conviction became final on August 16,
2002. Jimenez filed this application 13 years, 5 months and 17 days after mandate
issued.
8
The common-law doctrine of laches is defined as, neglect to assert right or claim
which, taken together with lapse of time and other circumstances causing prejudice to an adverse
party, operates as a bar in a court of equity. Also, it is the neglect for an unreasonable and
unexplained length of time under circumstances permitting diligence, to do what in law, should have
been done. Ex parte Carrio, 992 S.W.2d 486, 487 n. 2 (Tex. Crim. App.1999).
Page 5 of 33
15.
The Texas Court of Criminal Appeals has stated that a delay in excess
of five years may generally be considered unreasonable in the absence of justification

for the delay. Ex Parte Perez, 398 S.W.3d at 213, n.12.
16.
Jimenezs delay in this case greatly exceeds this standard for
presumptive unreasonableness.
B.
Jimenez presents no justifiable reason for the excessive delay.
17.
Jimenez has claimed that mental illness is the reason for his delay in
seeking habeas relief.

18.
Jimenez specifically claims during the intervening period between the
conviction becoming final and his filing the application this year that he has been
treated for self-mutilation, suicidal depression, suicide attempts, severe anxiety and
acute psychiatric distress.
19.
Accepting Jimenezs summary of his treatment history as true, the
record does not support his incapacity.

20.
Jimenez wrote several letters to the District Clerk requesting documents
and information relating to his case. His stated he sought the information for habeas
purposes.
21.
Over a four-month period in 2003, Jimenez wrote four letters to the
district clerk expressing his clear intent to seek post-conviction relief.
Page 6 of 33
22.
The four 2003 letters are cogent and on point.
23.
The letters do not give any indication of incapacity or disconnection
from reality or purpose.

24.
Jimenez took additional action in 2009 and 2011 toward obtaining post-
conviction relief.
25.
The court, after considering all facts and circumstances, finds no
credible justification for the over 13-year delay in bringing the application.
C.
The State has presented slight evidence of prejudice.
26.
The State claims it would be prejudiced, if it had to rely solely on the
memories of trial participants of an event that occurred eighteen years ago.

27.
Jimenezs conviction in this case followed a full trial on the merits not
a guilty plea.
28.
The State has not claimed or shown that the transcripts from the 1999
trial are unavailable. The State has not claimed or shown any tangible evidence has
been lost.
29.
Transcripts from the 1999 trial may be used to refresh recollection9 or
may be admitted in lieu of testimony in cases where the witness is absent.10
TEX. R. EVID. 612(a).
10
TEX. R. EVID. 804(b)(1)(B).
Page 7 of 33
30.
The States response demonstrates that any particularized prejudice in
a retrial in this case would be speculative.

31.
In this case, however, the State is not required to make a particularized
showing of prejudice instead, the applicable definition of prejudice permits

consideration of anything that places the State in a less favorable position, including
prejudice to the State's ability to retry a defendant, so that a court may consider the
totality of the circumstances in deciding whether to grant equitable relief. Ex parte
Perez, 398 S.W.3d at 215.
32.
Courts must evaluate proof of prejudice on a sliding scale, and the
longer a case has been delayed, the more likely it is that the reliability of retrial has
been compromised. Id., at 218.
33.
When the court applies this sliding scale, it finds slight evidence that
the reliability of retrial has been compromised by Jimenezs delay.

D.
Laches bars Jimenezs claim for relief
34.
The court has considered the length of the applicant's delay in filing the
application, the reasons for the delay, and the degree and type of prejudice resulting
from the delay in making a recommendation relating to the laches issue.
35.
The Texas Court of Criminal Appeals says no single factor is necessary
or sufficient. Instead, courts should engage in a difficult and sensitive balancing

process that takes into account the parties' overall conduct. Id., at 217.
Page 8 of 33
36.
The Texas Court of Criminal Appeals in a similar, unreported case
involving an unjustified 13-year delay in seeking post-conviction relief, the Court

found that the length of delay alone, guides [the Courts] finding of prejudice to the
State. Ex Parte Martin, No. WR78,40201, 2014 WL 6779115 (Tex. Crim. App.
January 14, 2015).
37.
That Court further provides that delays of more than five years may
generally be considered unreasonable in the absence of any justification for the

delay. Id. at 216, n. 12.
38.
This court concludes that laches bars Jimenezs claims for relief raised
in the application and recommends relief be denied for that reason.

39.
Even if the Court of Criminal Appeals disagrees with this conclusion,
or alternatively, if the Court of Criminal Appeals finds that the trial court should
conduct additional fact-finding on the laches issue, this court recommends Jimenezs
application be denied on the merits for the following reasons.
IV.
The first ground, relating to Derrick Robinsons testimony, should be

denied because Jimenez cannot prove a constitutional violation occurred.
40.
Jimenezs first ground for relief is that he was denied due process of law
and effective assistance of counsel because the prosecutor allowed perjured testimony
of Derrick Robinson during the jury trial on the merits.
Page 9 of 33
41.
At the time he testified, Robinson was an inmate a the TDCJ Luther
Unit in Navasota, Texas. 10 R.R.99 60:13-17.11

42.
Before tesifying before the jury, Robinson first testified outside the
jurys presence pursuant to an unspecified motion pending before the trial court. 10
R.R.99 59:12-15.
43.
Prior to testifying, Robinson had been in custody with Jimenez at the
Gainesville State School and the Cooke County Jail. 10 R.R.99 61:21 - 62:12.12
44.
Outside the jurys presence, Robinson testified that while in custody in
the Cooke County Jail, he and Jimenez (who was also in custody there) discussed that
Jimenez was accused of murder; that Jimenez said he did not do the crime he was
accused of doing. 10 R.R.99 63:11-17.
45.
While testifying outside the jurys presence, Robinson denied the
following: (1) that Jimenez told him that Jimenez and Jimenezs brother, Kenny Parr,
raped and killed a lady; (2) that Jimenez told him that the lady was a sheriff deputys
daughter; (3) that Jimenez told him that they shot the lady in the head; (4) that
Jimenez shot the lady once and that Parr shot the lady once; (5) that Jimenez told him
This abbreviation translates to Volume Ten, Reporters Record 1999, page 60, lines
13-17. R.R.98 will refer to the reporters record from the Competency Hearing and R.R.99 will refer
to the reporters record from the trial on the merits.
11
12
Robinson testified outside the jurys presence that Jimenez was incarcerated in the
Cooke County Jail because of an assault that had taken place at the state school. 10 R.R.99 63:5-7.
Page 10 of 33
there were small kids in the house when the shooting occurred; (6) that Jimenez told
him that he and Parr tried to steal the ladys car but could not because the car was a
stick shift; (7) that Jimenez told him that he and his brother stole some unspecified
items from the house; and (8) that Jimenez told him that Parr told Jimenez that he,
Parr, would take the charge for everything. 10 R.R.99 63:18 - 64:16.
46.
Outside the jurys presence, Robinson testified that he signed a
statement, given to the police while he was incarcerated in the Cooke County Jail.
The statement is identified in the trial record as Exhibit 222. 10 R.R.99 65:15-17.
47.
No motion was presented to the trial court by either the State or Jimenez
after Robinsons testimony concluded. The judge presiding returned the jury to the
courtroom.
48.
Robinson testified differently in front of the jury. Robinson testified (1)
that Jimenez told Robinson about a woman that had been killed; (2) that Jimenez told
Robinson that Jimenez had been involved in killing the woman; (3) that Jimenez told
Robinson that he and his brother, Kenny, broke into a womans house; (4) that
Jimenez told Robinson that the woman was at home with two children at that time;
(5) that Jimenez told Robinson that the woman was the daughter of a sheriffs deputy;
and (6) that Jimenez told Robinson that Jimenez shot the woman in the head one time
and the brother, Kenny, shot the woman in the head one time. 10 R.R.99 74:14 76:23.
Page 11 of 33
49.
Robinson also testified in front of the jury that Jimenez told him that he
and his brother raped the woman. 10 R.R.99 80:3-7. He also testified that Jimenez
told him that he and his brother tried to steal the womans car. 10 R.R.99 81:16-19.
50.
On cross-examination, Robinson admitted that when he testified outside
the jurys presence previously he had testified that the statements in Exhibit 222 were
not true. 10 R.R.99 83:10 - 84: 20.
51.
Jimenezs counsel effectively impeached Robinson on cross-
examination, by getting Robinson to testify that he lied under oath regarding Exhibit
222 when he previously testified outside the jurys presence. 10 R.R.99 84:21-23.
52.
On questioning by Jimenezs counsel, Robinson admitted he had given
the trial court two different versions of events relating to Exhibit 222. 10 R.R.99
89:20-25.
53.
Jimenez claims that Robinson testified truthfully outside the jurys
presence and lied in his testimony before the jury.13

54.
A habeas applicant must plead specific, particularized facts, that if true,
would entitle him to relief. Ex parte Staley, 160 S.W.3d 56, 64 (Tex. Crim. App.
2005). Claims that are conclusory and based on nothing more than mere conjecture
13
Jimenezs application does not include any proof or evidence that Robinsons
testimony before the jury was, in fact, untruthful, or alternatively, that the prosecutor knew
Robinsons testimony before the jury to be untruthful.
Page 12 of 33
and speculation are not cognizable on habeas review.

55.
The use of material false evidence to procure a conviction violates a
defendant's due-process rights under the Fifth and Fourteenth amendments to the
United States Constitution. Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim.
App. 2014).
56.
In this context, testimony is false when the testimony, taken as a whole,
leaves the jury with a false impression. Ex Parte De La Cruz, 466 S.W.3d 855, 866
(Tex. Crim. App. 2015).
57.
Jimenezs application includes only a conclusory statement that
Robinsons testimony before the jury was false.

58.
Jimenezs application for relief highlights clear inconsistencies in
Robinsons testimony that were made evident to the jury through direct and cross
examination.
59.
Mere inconsistencies or conflicts in the evidence do not establish falsity.
Id, at 87071.
60.
In a jury trial, the jurors are the exclusive judges of the facts, the
credibility of the witnesses, and the weight to be given to the testimony. Bartlett v.
State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version
of the facts and reject another, and it may reject any part of a witness's testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Page 13 of 33
61.
A jury may believe or disbelieve any portion of a witnesss testimony.
Jackson v. State, 483 S.W.3d 78, 81 (Tex. App. Houston [1st Dist.] 2015, pet.
refd).
62.
The jury had the opportunity to observe Robinsons tone of voice and
demeanor and to make a determination regarding his credibility.

63.
Jimenezs allegation that his attorney did not impeach Robinson is
contradicted by the record which shows Jimenezs counsel effectively impeached

Robinson by eliciting from him an admission that he testified differently earlier in the
proceedings.14
64.
[T]he character of the alleged error and how it might be considered in
connection with other evidence in the case is a relevant factor in a harm analysis.
Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002).
65.
The evidence was sufficient to support the conviction even discounting
Robinsons testimony. See Jimenez v. State, No. 13-99-776-CR, 2002 WL 228794

at *14-16 (Tex. App. Corpus Christi 2002, pet. refd) (discussing the evidence at
length without any reference to Robinsons testimony and finding that evidence to be
factually and legally sufficient to support the conviction).
14
The applicants burden to show counsel provided ineffective assistance is wellsettled and was most recently set forth in Ex parte Saenz, No. __ S.W.3d __, WR80,94501, 2016
WL 1359214 at *5-6 (Tex. Crim. App. April 6, 2016) and this court will incorporate that description
of the applicable law by reference.
Page 14 of 33
66.
According to the appeals court on direct appeal, evidence of Jimenezs
guilt includes: (1) the victims eight-year old daughters testimony that two AfricanAmerican men were involved in the murder; (2) Tecia Jackson heard gunshots and
saw two Hispanic or light-skinned African-American men carrying a television set
and arguing; (3) Tecia Jackson identified Jimenez as one of those two men at the trial;
(4) Monica Silva, Kenny Parrs girlfriend, testified that when she got home from
working as a cocktail waitress at 2:15 a.m., she found Parr and Jimenez in her
apartment with a television set she did not recognize, Jimenez with socks on his hands
and Parr and Jimenez going through a jewelry box later identified as the victims; (5)
Jimenezs fingerprints were found to be on the jewelry box; (6) Gracie Martinez
found Parr and Jimenez outside the apartment arguing around midnight on the night
of the murder; (7) Maria Cervantes, an acquaintance of Parr and Jimenez, testified
that on the night of the murder, Monica Silva knocked on her door and asked if
Jimenez could spend the night there; (8) Cervantes testified that after Silva left,
Jimenez told her he did not want to stay with Parr at Silvas apartment because Parr
was hot with the laws; (9) Cervantes testified that he inquired about yellow crime
tape around the apartment and whether that meant someone was dead; (10) Cervantes
testified that the following morning, Jimenez told her that he and Parr had killed the
victim; Cervantes testified that Jimenez explained to her that he and Parr were going
Page 15 of 33
to kill the victims children but the gun jammed; (12) Cervantes testified that Jimenez
told her that he and Parr each shot the victim one time in the back of the heard; (13)
Erik Miller, an employee at the Gainesville State School when Jimenez was in
custody there, testified that he overheard Jimenez tell someone that he killed the
bitch; (14) Voccia Calhoun, a caseworker, testified that Jimenez joked about how he
killed a woman; (15) Vincent Hornsby, a state agency worker, testified that Jimenez
said he and his brother killed a sheriffs daughter and that the children were present
when the murder took place; and (16) Hornsby testified Jimenez showed no sign of
remorse for the murder.15
67.
Jimenez cannot show that the jury believed any portion of Robinsons
testimony and alternatively, cannot show that Robinsons testimony was material to
his conviction.
68.
Even if Jimenez could somehow show his Due Process or Sixth
Amendment rights were violated in this case, this court finds he cannot show that he
was harmed by the admission of Robinsons conflicting testimony.
69.
The court recommends Jimenezs first ground for relief, as to both the
Due Process and the Sixth Amendment ineffective assistance of counsel claims be
denied.
15
Jimenez, 2002 WL 228794 at *14-16.
Page 16 of 33
V.
The second ground, relating to appellate counsels failure to raise Batson

error should be denied because no reversible Batson error occurred at
either jury trial conducted.
70.
The trial court conducted two jury trials in the Jimenez case: the 1998
Competency Hearing and the 1999 trial on the merits. Jimenezs trial counsel raised
Batson16 objections in each trial.
71.
To show that appellate counsel was constitutionally ineffective for
failing to assert a particular point of error on appeal, an applicant must prove that (1)
counsel's decision not to raise a particular point of error was objectively
unreasonable, and (2) there is a reasonable probability that, but for counsel's failure
to raise that particular issue, he would have prevailed on appeal. Ex parte Flores,
387 S.W.3d 626, 639 (Tex. Crim. App. 2012).
72.
Appellate counsel is ineffective when she fails to raise a claim that has
indisputable merit under well-settled law and would necessarily result in reversible
error. Ex parte Miller, 330 S.W.3d 610, 624 (Tex. Crim. App. 2009).
73.
Jimenez claims that appellate counsel in this case was ineffective for
failing to raise a Batson point of error on appeal.

74.
Batson provides a three-step process for determining when a strike is
discriminatory:
16
Batson v. Kentucky, 476 U.S. 79 (1986).
Page 17 of 33
First, a defendant must make a prima facie showing that: a peremptory

challenge has been exercised on the basis of race; second, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question; and third, in light of the parties'
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
Foster v. Chatman, No. 148349, 2016 WL 2945233 (U. S. May 23, 2016) (quoting
Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008)). See also Blackman v. State, 414
S.W.3d 757, 764 (Tex. Crim. App. 2013) (describing Batsons three-step procedure).
75.
A neutral explanation for Batson purposes means an explanation based
on something other than the jurors race. Hernandez v. New York, 500 U.S. 352, 364,
(1991) (plurality opinion).
76.
Unless a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral. Id. See also Garcia v.
Stephens, 793 F.3d 513, 526 (5th Cir. 2015).
77.
The States race-neutral basis for striking the juror in question need not
be persuasive or even plausible. Purkett v. Elem, 514 U.S. 765, 767-68 (1995).
78.
When the State offers an explanation for its strikes to the trial court
without contesting whether the defendant has established a prima facie case, the State
renders the first step in the Batson analysis moot on appeal. Simpson v. State, 119
S.W.3d 262, 268 (Tex. Crim. App. 2003).
79.
When reviewing a Batson claim, it is not proper for a reviewing court
Page 18 of 33
to consider evidence that was not included in the record or that was not admitted as
evidence in the case. See Vargas v. State, 838 S.W.2d 552, 556-57 (Tex. Crim. App.
1992) (An appellate court may not reverse a trial court's finding based upon
information that was not introduced into evidence or elicited before the trial judge
during the voir dire.)
80.
A reviewing court should not overturn the trial court's resolution of the
Batson issue unless it finds the trial court's ruling was clearly erroneous. Blackman,
414 S.W.3d at 765.
81.
The clearly erroneous standard is highly deferential because the trial
court is in the best position to determine if the prosecutor's explanation is genuinely

race neutral. Nieto v. State, 365 S.W.3d 373, 379 (Tex. Crim. App. 2012).
82.
Appellate courts reviewing Batson claims should defer to the trial
court's ruling in the absence of exceptional circumstances. Id.

A.
Batson claims raised at the 1998 Competency Hearing.
83.
After jury selection concluded and before the trial judge administered
the oath to the jurors, Jimenezs counsel raised a Batson objection to three jurors
struck by the State Juror Nos. 12, 16 and 25.
1.
The trial court did not err by overruling Jimenezs Batson

objection to Juror No. 12.
Page 19 of 33
84.
The State and defense counsel stipulated that Juror No. 12 was black.
3 R.R.9998 68:11-24.17
85.
The State did not contest whether Jimenez established a prima facie case
that the States basis for striking Juror No. 12 was racially motivated.
86.
The States proffered race-neutral basis for striking Juror No. 12 was:
With regard to Juror No. 12, Juror 12 is an unemployed, 21-year old;

and the State doesnt feel uncomfortable with the fact that this is a 21year old male who is unemployed. We dont feel that person would be
fair and partial with regard to the States case. 3 R.R.98 69:3-8.
87.
Youth is an acceptable race-neutral explanation for striking a
prospective juror. See Rice v. Collins, 546 U.S. 333, 341 (2006) (determining the
juror's youth to be a valid nonracial justification given that young people have fewer
ties and commitments to their community than older residents). See also, Partida v.
State, 133 S.W.3d 738, 742 (Tex. App. Corpus Christi 2003, no pet.) (holding
youth is an acceptable race-neutral explanation for striking a potential juror).
88.
Unemployment is an acceptable race-neutral explanation for striking a
prospective juror. See Bridges v. State, 909 S.W.2d 151, 155 (Tex. App. Houston
[14th Dist.] 1995, no pet.) (Holding that juror's status as unemployed is facially race
neutral explanation for peremptory strike).
17
It is undisputed that Jimenez had a Hispanic mother and an African-American father
and that the victim in the case was White.
Page 20 of 33
89.
Jimenez did not challenge and the trial court did not question the
sincerity of the States assessment of Juror No. 12's age or unemployed status.18
90.
The trial court overruled Jimenezs objection to the States striking
Juror No. 12. This ruling was not clearly erroneous.

91.
As to Juror No. 12, Jimenez cannot show that appellate counsels
decision not to raise a point of error was unreasonable or that there is a reasonable
probability that, but for counsel's failure to raise that particular issue, Jimenez would
have prevailed on appeal.
2.
92.

The State and the defense stipulated that Juror No. 16 was black. 3
R.R.98 68:11-24.
93.
94.
95.
With regard to Juror No. 16, your Honor, that juror is employed by the
Texas Department of Protection and Regulatory Services otherwise known as

Childrens Protective Services as reflected by her juror card. And the State is
18
See Yarborough v. State, 947 S.W.2d 892, 895 (Tex. Crim. App. 1997) (holding that,
counsel's statement about the panelist's demeanor was established as proved, because the statement,
made on the record, was undisputed by opposing counsel and unquestioned by the trial judge.).
Page 21 of 33
uncomfortable with employees of that particular agency because we believe that they
may because of the nature of their job and working with children so many times that
they may perhaps be more inclined to be soft on the child and maybe find that this
person is incompetent for the wrong reason. 3 R.R.98 69:10-20.
96.
The inference that a juror's employment might make the juror more
sympathetic to a criminal defendant is a valid, race-neutral reason for striking a juror.

See U.S. v. Maxwell, 473 F.3d 868, 872 (8th Cir. 2007).
97.
The record does not establish that the State failed to apply this rationale
consistently.
98.
sincerity of the States assessment of Juror No. 16's employment status.

99.

100.
3.

Page 22 of 33
101.
The State and the defense stipulated that Juror No. 25 was black. 3
R.R.98 68:11-24.
102.
103.
With regard to Juror No. 25, your Honor, that person is a registered
nurse and probably works you know, the expectation based upon that
occupation would be that they work with people who have been injured
and, again, the State feels as though registered nurses will not be the
kind of jurors the state is working for. The State would point out that
we struck Juror No. 20 for that same reason. 3 R.R.98 69:21 - 70:3
104.
The inference that a juror's employment might make the juror more
sympathetic to a criminal defendant is a valid, race-neutral reason for striking a juror.

See Maxwell, 473 F.3d at 872.
105.
The record does not establish that the State failed to apply this rationale
consistently.
106.
sincerity of the States assessment of Juror No. 25's employment status.

107.

108.
Page 23 of 33
B.
Batson claims raised in the 1999 trial on the merits.
109.
After jury selection concluded and before the trial judge administered
the oath to the jurors, Jimenezs counsel raised a Batson objection to five jurors struck
by the State Jurors Nos. 8, 16, 35,19 36 and 53.
1.
110.

Juror No. 8, unnamed in the record, was represented to be a Hispanic
female. 3 R.R.99 170:20; 171:9-17.

111.
The state did not contest whether Jimenez established a prima facie case
112.
The State expressed the following reason for striking Juror No. 8:
Your honor, by way of response, the State would state that we have
struck Juror No. 8 for the reason that she is a very youthful woman.
The States position is that the State does not the State prefers jurors
of an older age who have had additional life experience, that believes
that a youthful age is some indication of immaturity and perhaps that
the juror will not take the case as seriously as we wish that they would.
3 R.R.99 171:9-17.
19
Jimenez withdrew the objection as to Juror No. 35 when his counsel realized that
Jimenez also exercised a peremptory strike against that juror. 3 R.R.99 172:24-25.
Page 24 of 33
113.
Jimenez did not challenge the sincerity of the States assessment of
Juror No. 16's demeanor and attitude toward jury service.

114.
Youth is an acceptable race-neutral explanations for striking a
prospective juror. See Rice v. Collins, 546 U.S. at 341 (2006), supra 87. See also,
Partida v. State, 133 S.W.3d 738, 742 (Tex. App. Corpus Christi 2003, no pet.)
(holding youth is an acceptable race-neutral explanation for striking a potential juror).
115.

116.
2.
117.

The record identifies Juror No. 16 (Mr. Gordon) as a black male. 3
R.R.99 174: 21-24; 175:9-11.

118.
119.
The trial court observed that Juror No. 16 was the same juror that was
50 minutes late for jury service that morning and was 30 minutes late the day before.
3 R.R.99 174:25 - 175:3.
Page 25 of 33
120.
The State offered Juror No. 16's tardiness as the basis for the strike.
121.
The State also provided that Juror No. 16 had stated during questioning
that, he just simply didnt want to be here.20 3 R.R.99 175:6-11.

122.
Jimenez did not challenge the sincerity of the States assessment of
Juror No. 16's demeanor and attitude toward jury service. 3 R.R.99 175:12-13.
123.
Tardiness and demeanor are race-neutral reasons for exercising a
peremptory strike against a juror. See Blackman, 414 S.W.3d at 769-770 (A

prospective juror's demeanor may give rise to a legitimate, racially neutral peremptory
challenge.); Nieto v. State, 365 S.W.3d 373, 380 (Tex. Crim. App. 2012) (We have
held that the demeanor of a potential juror is a valid reason to exercise a peremptory
strike.)
124.
The States explanation is supported by the trial courts observations
regarding Juror No. 16's tardiness on two occasions.

125.

126.
20
The exchange the State refers to is found at 2 R.R.99 36:1-6.
Page 26 of 33
3.
127.

The record identifies Juror No. 36 (Mr. Foreman) as a black male. 3
R.R.99 173:6-8.
128.
129.
[T]he State struck Mr. Foreman because of the discourse that had to do
with whether or not defense counsel would be sleeping; and during the
course of that discussion with Mr. Foreman had appeared to the State
that he thought perhaps we might be trying to put something over on
the defense. And so, we felt a little uncomfortable with him because of
the conversation. 3 R.R.99 173:8-14.21
130.
While Juror No. 36 did not actually say in the exchange that he thought
the prosecution was trying to put something over on anyone, both the prosecutor and
the judge were in the position to observe the jurors body language, tone and
demeanor during the exchange.
131.
Jimenezs counsel did not challenge the sincerity of the States
assessment of Juror No. 36's demeanor.22
21
The discourse referenced here is found at 3 R.R.99 19:3 - 21:23.
22
See Yarborough, supra n. 18.
Page 27 of 33
132.

133.
4
134.

The record identifies Juror No. 53 (Mr. Grimes) as a black female. 3
R.R.99 170:21; 173:17-22.

135.
136.
The State struck Miss Grimes because of her apparent agreement

throughout the voir dire with defense counsel. She appeared to the
State to continue nodding her head and agreeing with him regardless of
what he said.
And in addition, during one portion of the voir dire, there was a
discussion during the defense voir dire about the law of parties. And
I believe that during that discussion that Miss Renee Rather (Note: Miss
Rather was Juror No. 5423) was speaking to defense counsel about her
opinion about the law of parties and how she really didnt much care
23
3 R.R.99 64:11-14.
Page 28 of 33
for that for that particular law which is why we struck Mrs. Rather.24
And during their discussion of that issue, we noted that both she and
Miss Grimes were having a discussion apparently to the State about the
law of parties; and both of them were nodding their heads in agreement
appearing to the State that Miss Grimes was agreeing with Miss Rather.
3 R.R.99 173:18 - 174:11.
137.
The jury charge in the case included a law of parties instruction. The
questions discourse shown here relates to a subject reasonably related to the issues
being tried.
138.
Jimenez responded to the proffered basis by stating, My position,
Judge, is that is not a racially neutral reason for striking. 3 R.R.99 174:13-14. This
conclusory statement is not a rebuttal of the prosecutors observations, and the judge
did not question them.25
139.
Attitudes toward the law applicable in the case being tried constitutes
a race-neutral basis to strike a juror. See e.g., Green v. State, 839 S.W.2d 935, 939
(Tex. App. Waco 1992, pet. refd) (holding the jurors repeatedly expressed
reservations about considering and assessing the maximum range of punishment was
a facially race-neutral basis for striking the juror even though the juror was
rehabilitated by defense counsel and strike for cause was denied).
24
The discussion with Ms. Rather is found at 3 R.R.99 64:11 - 66:21. The discussion
was actually between Ms. Rather and the States attorney, not defense counsel.
25
See Yarborough, supra, n. 18.
Page 29 of 33
140.

141.
C.
Conclusion relating to Jimenezs Batson claims.
142.
Jimenez claims his appellate counsel failed to raise points of error
relating to Batson error objections made during the two trials in this case.
143.
The court has considered the legal standard to prove counsel provided
constitutionally ineffective assistance of appellate counsel.

144.
The second prong in this analysis requires Jimenez to show that but for
counsels failure to raise the point of error, he would have prevailed on appeal.
145.
Because reversal on the Batson points of error would be based upon the
record on appeal, the trial court has reviewed that record only. Because the record
does not support a conclusion that Jimenez would have prevailed on appeal, the court
has not sought an explanation from appellate counsel why she did not raise the points
of error on appeal.
146.
This court has concluded that the trial court committed no error in
Page 30 of 33
overruling trial counsels Batson objections in either the 1998 Competency Hearing
or the 1999 trial on the merits in this case.
147.
The trial court recommends Jimenezs second ground for relief be
denied.
Recommendation
148.
The trial court recommends that the Texas Court of Criminal Appeals
deny the Application for Writ of Habeas Corpus in this cause.

149.
The trial court recognizes that neither these recommendations nor the
conclusions of law, which are reviewed de novo, are binding on the Texas Court of
Criminal Appeals.
150.
In the event that the Court determines that there are additional fact
circumstances that should be considered with regard to any issue raised, the Court
may remand the cause for further proceedings and the trial court can more fully
develop this record consistent with those more specific instructions, should they later
exist.
Order to Transmit Supplemental Record and to Notify Parties
151.
The Clerk of the Court is ORDERED to prepare a supplemental record
of this cause, including:
Jimenezs Application for a Writ of Habeas Corpus Seeking Relief

From Final Felony Conviction Under Code of Criminal Procedure,
Article 11.07;
Page 31 of 33
the trial courts March 14, 2016 Order Designating Issues on

Application for Writ of Habeas Corpus (Art. 11.07) (and March 15,
2016, letter transmitting);
the March 24, 2016 Affidavit of Jimenez;
the April 7, 2016, Brief and Response by the State on the Issue of
Laches; and
these Findings of Fact and Conclusions of Law.
152.
The Clerk of the Court shall also include the following post-conviction
materials in the supplemental record:
Jimenezs February 28, 2003, letter to Becky Denn, District Clerk;
Jimenezs May 22, 2003, letter to Becky Denn, District Clerk;
Becky Denns May 22, 2003, letter to Michael Jimenez;
Jimenezs June 26, 2003, Declaration of Inability to Pay Costs;
Bret Ratekins October 10, 2005, letter to Becky Denn;
Jimenezs November 16, 2009, letter to Becky Denn; and
Barbara Laws April 20, 2011, letter to Becky Denn.
153.
The District Clerk shall immediately transmit to the Court of Criminal
Appeals, under one cover, the pleadings, documents and other official records herein
described, along with any other such records required by law. TEX. CODE CRIM. PRO.,
Art. 11.07 3(d).
154.
The District Clerk is further ordered delay to mail by regular mail a
copy of this document to Jimenez at his address shown on the Application and to
Page 32 of 33
notify the attorney for the State of Texas that these findings and conclusions have
been filed. Notices shall be mailed and delivered within three working days.
Signed: June 15, 2016 (2:13pm).
__________________
Judge Presiding
Page 33 of 33

Ex Parte Michael Jimenez

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Ex Parte Michael Jimenez

Hochgeladen von

Copyright:

Verfügbare Formate

Cause No.

IN THE DISTRICT COURT OF

MATAGORDA COUNTY, TEXAS

130th JUDICIAL DISTRICT COURT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Trial counsel was ineffective for failing to impeach Derrick Robinson.

Appellate counsel was ineffective for failing to raise Batson error on

There was insufficient evidence to support the conviction.

The court declined to designate Ground No. 3 in this proceeding. Habeas

No. 98-J-0249-A; Ex parte Michael Jimenez

No. 98-J-0249-A; Ex parte Michael Jimenez

The crime, trial, conviction and appeal.

A Matagorda County grand jury indicted Jimenez for capital murder in

offense,2 as an adult and transferred the case to criminal court.3

The trial court conducted an unfitness to proceed hearing before a jury

on August 25, 1998 (the Competency Hearing).4

After hearing evidence in the Competency Hearing, the jury found

Jimenez was not unfit to proceed.5

Id., at *2, fn. 1

No. 98-J-0249-A; Ex parte Michael Jimenez

A subsequent jury convicted Jimenez of capital murder and he was

automatically sentenced to life in prison.6

Texas Court of Criminal Appeals refused discretionary review.7 Mandate issued.

Jimenezs post-conviction activities.

On February 28, 2003, the Matagorda County District Clerk received

On June 23, 2003, Jimenez filed a Declaration of Inability to Pay Cost.

The letter includes an indigency affidavit and an accompanying letter requesting a

See supra note 1 and accompanying text,

No. 98-J-0249-A; Ex parte Michael Jimenez

On November 6, 2009, Jimenez again wrote the District Clerk

requesting his cause number.

Clerk requesting certified copies of documents relating to Jimenezs Matagorda

Jimenez filed this application on February 2, 2016.

Jimenezs application is barred by laches.

The length of Jimenezs delay is excessive.

Mandate issued and Jimenezs conviction became final on August 16,

No. 98-J-0249-A; Ex parte Michael Jimenez

of five years may generally be considered unreasonable in the absence of justification

Jimenezs delay in this case greatly exceeds this standard for

Jimenez presents no justifiable reason for the excessive delay.

seeking habeas relief.

Jimenez specifically claims during the intervening period between the

Accepting Jimenezs summary of his treatment history as true, the

record does not support his incapacity.

Jimenez wrote several letters to the District Clerk requesting documents

Over a four-month period in 2003, Jimenez wrote four letters to the

district clerk expressing his clear intent to seek post-conviction relief.

No. 98-J-0249-A; Ex parte Michael Jimenez

The four 2003 letters are cogent and on point.

The letters do not give any indication of incapacity or disconnection

from reality or purpose.

The court, after considering all facts and circumstances, finds no

The State has presented slight evidence of prejudice.

The State claims it would be prejudiced, if it had to rely solely on the

memories of trial participants of an event that occurred eighteen years ago.

Transcripts from the 1999 trial may be used to refresh recollection9 or

may be admitted in lieu of testimony in cases where the witness is absent.10

TEX. R. EVID. 612(a).

TEX. R. EVID. 804(b)(1)(B).

No. 98-J-0249-A; Ex parte Michael Jimenez

The States response demonstrates that any particularized prejudice in

a retrial in this case would be speculative.

In this case, however, the State is not required to make a particularized

showing of prejudice instead, the applicable definition of prejudice permits