judge greg brewer's ruling in favor of charles dean hood

8/14/2019 JUDGE GREG BREWER's RULING in Favor of CHARLES DEAN HOOD

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I. LACHESA. Findings of Fact1. The Applicant, Charles Dean Hood, was tried and convicted for capitalmurder, and received a sentence of death, in 1990.2. Judge Verla Sue Holland of the 296th Judicial District Court of CollinCounty, presided over Hood's capital murder trial.3. The elected District Attorney of Collin County, Thomas S. O'Connell, Jr.,participated in the prosecution of Hood for capital m urder.4. Judge Holland and Mr. O'Connell were involved in an intimate sexualrelationship prior to Hood's capital murder trial.5. Judge Holland continued to serve as the presiding judge of the 296thJudicial District Court during Ho od 's direct appeal (1990-94). DuringHood's state habeas proceedings (1994-99), she left the district court benchand served as a judge on the Court of Criminal Appeals ("CCA"). Shecontinued to serve on the CCA during Hood's federal district court habeas

proceedings (1999-2000), as well as a portion o f his Fifth Circuit appeal(2000-04).' Prior to the capital murder trial - and during the appellate andpost-conviction proceedings - Judge Holland never disclosed herrelationship w ith M r. O'Connell to Hood.6. Mr. O'Connell served as the District Attorney of Collin County during thetime of Hood's indictment (1989), trial (1990), direct appeal (1990-94),state habeas review (1994-99), federal district court habeas review (1999-2000), and Fifth Circuit appeal (2000-04).2 During these proceedings, Mr.O'Connell never disclosed his relationship with Judge Holland to Hood.

Judge Holland resigned from the CCA on September 2, 2001.2 Mr. O'Connell left the District Attorney's Office on December 31, 2002.

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7. Judge Holland and Mr. O'Connell took deliberate measures to ensure thattheir affair w ould remain secret. There were no public displays of affection.Holland deposition at 52; O'Connell deposition at 43 . Their sexualencounters took place at each other's homes when their spouses were away.Id . at 16-17; Holland deposition at 52. Mr. O'Connell could not recalltelling anyone, except possibly his sisters, about his romantic relationshipwith Judge Holland. O'Connell deposition at 18. Judge Holland told noone. Holland deposition at 31, 3 3 .

B. Conclusions of Law1. The equitable doctrine of laches is inapplicable to inmates seeking postconviction relief in a subsequent application pursuant to A rticle 11.071 ofthe Texas Code of Criminal Procedure.2. The CCA has repeatedly recognized that "Article 11.071 now contains theexclusive procedures for the exercise of this Court's original habeas corpusjurisdiction in death penalty cases." Ex parte Smith, 977 S.W.2d 610, 611(Tex. Crim. App. 1998) (emphasis in original) (quoting Ex parte Davis, 947

S.W.2d 216, 224 (Tex. Crim. App. 1996) (opinion of McCormick, P.J.)).33. Any attempt to impose additional requirements on death-sentencedprisoners challenging their conviction or punishment would undermine theLeg islature's clear intent in enacting Article 11.071 and violate theseparation of powers.4. Section 5 of Article 5 of the Texas Constitution expressly g ives theLegislature the complete authority to regulate "the m eans, manner, andmode" of asserting a habeas claim. Davis, 947 S.W.2d at 223. TheLegislature's constitutional regulatory authority includes the right to imposerestrictions on a death row inmate's ability to file abusive or successivehabeas applications challenging the same criminal conviction or sentence.Id . at 222-24; Ex parte Blue, 23 0 S.W.3d 151, 155-56 (Tex. Crim. App.

2007).3 Although Presiding Judge McCo rmick's opinion in Davis is labeled a concurring opinion, amajority of the CCA joined it and regards it as an opinion for the Court. Smith, 977 S.W.2d at611 n.4.


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5. The CCA has recognized that the intent of Article 11.071 is "to speed up thehabeas corpus procedures for capital cases, while retaining exceptionswhich permit late filings" in a narrow set of circumstances. Smith, 977S.W.2d at 611. By imposing strict deadlines for filing an initial habeasapplication, the Legislature sought to expedite the capital post-convictionprocess in support of the State's interest in finality. See Tex. Code Crim.Proc. art. 11.071, 4 .

6. The Legislature also created a set of narrowly-defined exceptions, allowingthe filing of a subsequent application if (1) the facts or law in support of theclaim were not previously available through the exercise of reasonablediligence; (2) no rational juro r would have found the inmate guilty; or (3 ) norational juro r would have sentenced the inmate to death. See Tex. CodeCrim. Proc. art. 11.071, 5. The Legislature imposed no time limits on theCC A's consideration of the merits of a later-filed, successive application ifit otherwise meets one of the limited exceptions found in Section 5 ofArticle 11.071.

7. As the CCA emphasized in Smith, when the applicant asked the Court tocreate an exception to the strict filing deadlines for initial applications setout in Article 11.071:Our oaths are to uphold the constitutions and laws o f thiscountry and state; they are not a commission to do what amajority of us think is fair. This law was passed by thelegislature and approved by the governor, in accordancewith our constitutional form of government. The law isclear: this court shall dismiss this application because itwas filed late. If the law is barbarous, the legislatureshould repeal it or the governor should commute orpardon those who are subjected to it. In the mean time,we must follow it.

977 S.W.2d at 611; see Blue 23 0 S.W.3d at 167 (noting that Article11.071 does not provide for appointment of counsel on a successivepetition and concluding that "this is a regrettable dilemma But itis one we are not at liberty to solve for him, in light of the legitimatelegislative judgm ent as expressed in the statute. Counsel for the

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applicant, and others similarly situated, must present their dilemmafor the consideration of the Legislature.").8. The CCA has explained its duty to refrain from intruding into the legislative

realm:Courts have no power to legislate. It is the cou rt's dutyto observe, not to disregard statutory provisions. Cou rtscan neither ignore nor emasculate the statutes. Further,courts have no pow er to create an exception to a statute,nor do they have power to add to or take from legislativepains, penalties and re m ed ie s. .. . It is for theLegislature, not the courts, to remedy defects or supplydeficiencies in the laws , and to give relief from unjustand unwise legislation.

State v. Ross, 953 S.W.2d 748, 751 n.4 (Tex. Crim. A pp. 1997).9. In Smith, the courts lacked the power to create a judicial exception thatwould have benefitted the applicant. Here, the courts lack the power toimpose an additional successive application requirement that would work tothe State's advantage. The Legislature has occupied the field of regulatingpost-conviction proceedings in death penalty cases. If the State believesthat a successive petition filed after excessive delay - that otherwise meets

one of the exceptions to the general bar on successive applications - shouldbe rejected, then it must take up its complaint with the Legislature and urgeit to amend Article 11.071. The courts may not create an ad hoc judicialrequirement in this case or any other.10. Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999), is inapt. InCarrio, the CCA adopted the doctrine of laches for non-death-sentencedinmates filing an initial habeas petition under Article 11.07. The CCAnoted that, unlike A rticle 11.071, the post-conviction provisions of Article11.07 contain no timeliness requirements for filing the initial application.

Id . at 488 n.3. More important, Carrio does not purport to allow a lachesdefense to the filing of a subsequent petition that otherwise meets one of theexceptions to the general prohibition on such petitions - excep tions that are"virtually iden tical" to the ones found in Section 5 of Article 11.071. Davis,


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15. The State cannot invoke the equitable doctrine of laches because its handsare unclean: Judg e Holland and M r. O'Conn ell did not abide by their ethicaland constitutional d uties to disclose the fundamental conflict caused by theirrelationship. See Tex. Disciplinary R. Prof 1 Conduct, Rule 3.05(a), (b)(prohibiting lawyers from improperly influencing tribunal orcommunicating ex parte with tribunal); cmt. 3 (noting that "ex partecontacts between a lawyer and a tribunal have been subjected to stringentcontrol because of the potential for abuse such contacts present"); Rule 3.09cmt. 1 ("A prosecutor has the responsibility to see that justice is done, andnot simply to be an advocate."); Tex. Code of Judicial C on du ct, C anon 1("A judge should participate in establishing, maintaining, and enforcinghigh standards of conduct, and should personally observe those standards sothat the integrity and independence of the judiciary is preserved."); Canon2(A) ("A judge shall comply with the law and should act at all times in amanner that promotes public confidence in the integrity and impartiality ofthe judiciary ."); Canon 2(B) ("A jud ge shall not allow any relationship toinfluence judicial conduct or judg m ent."); Canon 3(B )(8) (prohibiting exparte contacts); Canon 4(A) ("A judg e shall conduct all of the jud ge 's extrajudicial activities so that they do not: (1) cast reasonable doubt on theju dg e's capacity to act impartially as a jud ge ; or (2) interfere w ith the properperforman ce of judicia l duties."); Banks v. Dretke, 540 U.S. 668, 696 (2004)("A rule thus declaring 'prosecutor may hide, defendant must seek,' is nottenable in a system constitutionally bound to accord defendants dueprocess."); Strickler v. Greene, 527 U.S. 26 3 , 280 (199 9) (emph asizing "thespecial role played by the American prosecutor in the search for truth incriminal trials"); Berger v. United States, 295 U.S. 78, 88 (1935) (notingthat the State has an interest in a criminal pro secution to see "not that it shallwin a case, but that justice shall be done").

16. Even if the State could demonstrate "clean hands," it cannot show that thedelay has prejudiced its ability to respond to the allegations in the petition.17. The CCA has adopted an understanding of laches for non-death-sentenced

inmates seeking initial habeas relief in which "the length of delay alone willnot constitute unreasonableness of delay or prejudice." Carrio, 992 S.W.2dat 48 8. Instead, the State bears the burd en of ma king a particularizedshow ing of prejudice in its ability to respond to the allegations in thepetition caused by the inm ate's having filed a delayed petition. Id .-7 -


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18. The depositions of Mr. O'Connell and Judge Holland reveal that there is nodispute that their intimate, sexual relationship began before Hood's trial.Any disputes of fact possibly attributable to the erosion of memory causedby the passag e of time concern only the date the affair ende d. Th ese factualdisputes are imm aterial. It is the appearance of partiality that is dam aging tothe public 's confidence in the integrity of the judicial pro cess; Hood neednot prove actual bias. See In re M urchison, 349 U.S. 133, 136 (1955) ("[T]operform its high function in the best way, justic e mu st satisfy th e ap pearan ceof justice."); Commonwealth Coatings Corp. v. Continental Casualty Co.,393 U.S. 145, 150 (1968) (holding that "any tribunal permitted by law to trycases and controversies not only must be unbiased but also must avoid eventhe appearance of bias"); Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim.App. 1992) (holding that the standard for assessing judicial bias is whetherthe allegation of lack of impartiality is groun ded on facts that would createdoubts con cerning the jud ge 's impartiality in the mind of a reasonab leperson with knowledge of all the circumstances involved).

19. Under the doctrine of laches, even if the State could show that Hood's delaycaused the State prejudice in its ability to respond to the claim , the Statewould still have to demonstrate that Hood did not act with reasonablediligence in bringing the judicial bias claim. See Carrio, 992 S.W.2d at488. This element of laches appears similar to the "reasonable diligence"requirement found in Section 5 of Article 11.071. Hood acted withreasonable diligence. See Part II, infra.


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II. REASONABLE DILIGENCEA. Findings of Fact1. In its remand order, the CCA says that Hood "did not try to obtain proof ofthe affair until some eighteen years after his trial." Ex parte Hood,No. WR-41,168-11 (Tex. Code Crim. App. Nov. 19, 2008), slip op. at 4. Thisstatement is incorrect.2. Based only on rumors of an affair, Hood's former habeas counsel decided tolook into the matter, prior to filing the initial habeas application. In 1995-96, Hood's investigator, Tena S. Francis, conducted extensive recordsresearch. She reviewed divorce records, records obtained from the Office ofElections Administration, and case files in the Collin County DistrictClerk's Office. M s. Francis interviewed m embers of Ho od's defense team,attorneys practicing in Collin County, and Judge Holland's former husband,Earl Holland. She attempted to interview Judge Ho lland 's bailiff, but herefused to discuss the judg e's personal life with her. She contacted the StateCommission on Judicial Conduct. See Affidavit of Tena S. Francis (Aug. 1,1996).3. Ms. Francis was unable to develop any concrete evidence of the affair.4. On June 27 , 200 5, shortly before H ood 's scheduled execution date, A.

Richard Ellis, former counsel for Hood , contacted Judge Holland. Sherefused to comm ent on the allegations that she had had a romantic affairwith Mr. O'Conne ll. On the same day, Mr. Ellis contacted M r. O 'Conne ll.Mr. O'Connell denied that he had had a romantic affair with Judge Holland.See Affidavit of A. Richard Ellis (Mar. 3 , 2009).5. On June 3 , 2008, Hood received the affidavit of Matthew G oeller, a formerassistant district attorney in Collin County, Texas.6. Mr. Go eller's affidavit marked the first time that a former employee of the

District Attorney's O ffice who had worked there during Mr. O 'Con nell'stenure was willing to speak on the record and under oath about therelationship.7. Mr. Goeller stated that the romantic relationship between Judge Holland and-9 -


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Mr. O'Connell was ongoing when Mr. Goeller began working at the DistrictAttorney's Office in 1987.8. In June 2008, counsel for Hood retained Toni Knox, a private investigator.She reviewed the work previously conducted by M s. Francis, and theninterviewed approximately two dozen individuals in the Collin County areawho seemed likely to have some knowledge of the H olIand-O'Connellaffair. See Affidavit of Toni Knox, LCSW (Mar. 3, 2009).9. Like M s. Francis, M s. Knox found no one who could confirm the existenceof a romantic relationship between Judge Holland and Mr. O 'Connell. Thewitnesses could only attest that they had heard rumors about the affair.10. From June until September 2008, M s. Knox spent over 80 hoursinvestigating the judicial bias claim. Hoo d's counsel paid her over $5,500out-of-pocket for her time and expenses.11. In 2008, Hood's counsel, Gregory W. Wiercioch, left a voice mail messageon Judge Ho lland 's phone. She refused to cooperate with his investigation.Holland deposition at 15-16.12. Judge Holland and Mr. O'Connell wrongfully withheld relevant informationfrom defense counsel prior to and during the trial, the direct appeal, the statehabeas proceed ings, the federal habeas proceed ings, and the successive state

habeas proceedings. Indeed, Mr. O'Connell misled habeas counsel duringthe successive state habeas proceedings and Judge Holland resistedcounsel's investigative efforts.13. Hood filed his previous application on the morning of Septem ber 8, 2008.14. Hood did not complete the deposition of Mr. O'Connell until 7:17 p.m. onSeptember 8, 2008. O'Connell deposition at 2. Hood did not complete thedeposition of Judge Holland until 12:19 p.m. on September 9, 2008.Holland deposition at 2.15. Hood filed the current application on September 26 , 2008.

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B. Conclusions of Law1. To obtain merits review of his judicial bias claim, Hood must show"sufficient specific facts" establishing that the factual basis of the claim

"was not ascertainable through the exercise of reasonable diligence" at thetime he filed h is previous habeas application. See Tex. Code. Crim. P art11.071, 5(a)(1 ), (e).2. Hood exercised reasonable diligence.3 . Hood's unsuccessful efforts to obtain concrete evidence of the Holland-O'C onne ll affair cannot be attributed to his failure to exercise reasonablediligence but, instead, is explained by the princ ipals' longstanding efforts tokeep the affair h idden.4. In determining the scope of a habeas investigation, a reasonab ly diligentattorney is entitled to rely on the presumption that State officials have fullydischarged their ethical and constitutional duties.5. Hood cannot be faulted for failing to exercise reasonable diligence whenState officials prevented him from obtaining concrete evidence of theHolland-O'Connell affair. Cf. Murray v.Carrier, All U.S. 478 , 488 (1986)(finding that "some objective factor external to the defense" - including"interference by officials" -justifies inmate's failure to raise claim earlier).

Because conscientious counsel may presume that State officials have abidedby their ethical and constitutional responsibilities, counsel does not have aprocedural obligation to investigate constitutional error on the basis o f meresuspicion that some prosecutorial or judicial misconduct m ay have occurred.Strickler v. Greene, 527 U .S. 263, 286-87 (1999).6. In this case, however, the presumption proved false. Hood would neverhave had to seek a reprieve from the Governor had Judge Holland or Mr.O'Connell simply fulfilled their duty to disclose the fundamental conflictcaused by their relationship. See Tex. Disciplinary R. P ro f 1 Conduct, Rule

3.05(a), (b) (prohibiting lawyers from improperly influencing tribunal orcommunicating ex parte with tribunal); cmt. 3 (noting that "ex partecontacts between a lawyer and a tribunal have been subjected to stringentcontrol because of the potential for abuse such contacts prese nt"); Rule 3.09-11-


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cmt. 1 ("A prosec utor has the respon sibility to see that justic e is done, andnot simply to be an advocate."); Tex. Code of Judicial Co nd uc t, Canon 1("A judge should participate in establishing, maintaining, and enforcinghigh standards of conduct, and should personally observe those standards sothat the integrity and independence of the judiciary is preserved."); C anon2(A) ("A judge shall comply with the law and should act at all times in amanner that promotes public confidence in the integrity and impartiality ofthe judiciary."); Cano n 2 (B) ("A judge shall not allow any relationship toinfluence judicial conduct or judgm ent."); Canon 3(B)(8) (prohibiting exparte contacts); Cano n 4(A) ("A judge shall conduct all of the jud ge 's extrajudicial activities so that they do not: (1) cast reasonable doubt on theju dg e's capacity to act impartially as a jud ge ; or (2) interfere with the p roperperformance of jud icial du ties."); Banks v. Dretke, 540 U.S. 668, 696 (2004)("A rule thus declaring 'prosecu tor may hide, defendant m ust seek, ' is nottenable in a system constitutionally bound to accord defendants dueprocess."); Strickler, 527 U.S . at 280 (emphasizing "the special role playedby the American prosecutor in the search for truth in criminal trials");Berger v. United States, 295 U .S. 78, 88 (1935) (noting that the State has aninterest in a criminal prosec ution to see "not that it shall win a case, but tha tjustice shall be don e").

7. Tw o U.S . Supreme Court cases, Williams v. Taylor, 529 U.S. 420 (2000) ,and Strickler v. Greene, 527 U.S. 263 (1999), discuss the diligence of statehabeas counsel. Williams and Strickler recognize that reasonably diligenthabeas counsel, wh en determining the scope of their investigation, areentitled to trust that State actors have fulfilled their professional andconstitutional obligations. Without this presumption, the burden on habeascounsel to conduct a reasonably diligent investigation wo uld be onerousbecause the scope of the investigation would be limitless.

8. Instances in wh ich the CC A has perm itted applicants to proce ed on themerits of subsequent applications confirm a similar understanding ofSection 5(a)(1) of Article 11.071. When State officials have suppressedfavorable evidence, the CCA has found the reasonable diligencerequirement satisfied - even if habeas counsel could have uncovered theevidence had counsel undertaken fairly routine investigative tasks duringthe previous proceedings. See Ex parte Michael R oy Toney, WR-51,047-03(Tex Crim. App. Sept. 20, 2006) (unpublished) (authorizing successive

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proceedings on Brady and Napue claims based on evidence that subsequenthabeas counsel obtained through public information act request); Ex parteAnibal Garcia Rousseau, W R-43,53 4-02 (Tex. Crim. App . Sept. 11, 2002)(unpublished) (authorizing successive proceedings on Brady and actualinnocence claims based on evidence that subsequent habeas counseluncovered through request to review district attorney's file); see also Exparte Lemke, 13 S.W.3d 79 1, 794 (Tex. Crim. App. 2000) (authorizingsuccessive application raising ineffective assistance of counsel claim,because "reasonable diligence" did not require inmate "to query the districtattorney about the existence of plea bargain offers when he had beenassured by his attorney that there were none").

9. In the face of rum ors of an affair, Hood wa s entitled to presum e that JudgeHolland's and Mr. O'ConnelPs behavior - refusing to recuse themselvesfrom cases Mr. O'Connell personally prosecuted in Judge Holland'scourtroom - indicated that the rumors were false.

10. Even assuming the absence of State interference, Hood exercised reasonablediligence.11. Section 5(a)(1) does not require a death-sentenced inmate to use Rule 202of the Texa s Rules of Civil Procedure in an attempt to force recalcitrantwitnesses to speak.12. Hood's repeated attempts to uncover evidence of a secret affair cannot becharacterized as less than reasonably diligent simply because he did notpursue Rule 202 proceedings earlier. Under the "reasonable dil igence"inquiry of Article 11.071, the question is not whether the facts could havebeen ascertained previously, but whether the inmate was diligent in hisefforts. Diligence depe nds upon whe ther the prisoner mad e a reasona bleattempt, in light of the information available at the tim e, to investigate andpursue his claims. Williams, 529 U.S. at 43 5. It does not depend uponwhether those efforts could have been successful. Id .13 . Hood's investigation satisfies Lemke's interpretation of the "reasonablediligence" provision that "at least some kind of inquiry has been made intothe ma tter at issue." 13 S.W.3d at 794.

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14. Based on courthouse gossip and speculation about an intimate relationshipbetween Judge Holland and Mr. O'Connell, Hood's habeas counsel madereaso nab le efforts in 1995-9 6 to dev elop the facts of the affair. Be caus ecounsel was unable to confirm these suspicions, she did not have a goodfaith basis to allege a judicia l bias claim in the initial application. Und erthese circumstances, diligence did not demand that counsel pursue everyconceivable option, including commencing civil litigation under Rule 202.That Rule 202 would ultimately prove successful is imm aterial. SeeWilliams, 529 U.S. at 43 5.

15. In short, "reasonable diligence" does not impose on counsel a duty toconduct a broad, unfocused investigation grounded on mere speculation orrumor, withou t any basis in trigg ering /ac* . Article 11.071 now here requirescounsel to launch such a "fishing expedition." Instead, hab eas co un sel'sduty requires that counsel conduct an investigation concerning specifictriggering facts that com e to cou nse l's attention in the course of, amo ngother things, reviewing the reporter's record and the clerk's record,examining trial counsel's files, reading the appellate briefs, andinterviewing the client and trial counsel. See generally State Bar of Texas,Guidelines and Standards for Texas Cap ital Counsel, 69 Tex . Bar J. 966,977-81 (2006).

16. Despite relying on nothing but speculation as the basis for pursuing aninvestigation, Hood nonetheless made a conscientious attempt to determinewhether there was any truth to the rum ors of the Holla nd- O'C onn ell affair.The failure to develop the facts of the judicial bias claim in the first orsubsequent rounds of habeas review is squarely attributable to JudgeHolland and Mr. O'Co nne ll 's deception and no n-disclosure, rather than thelack of reasonable diligence on Hood's part.17. Mere speculation or suspicion does not suffice to "impose a duty on counselto advance a claim for which they have no evidentiary support." Strickler,527 U.S. at 286 . Only last year did Hood obtain evidence o f the H olland-

O'Connell affair from a credible source who was willing to provide a swornstatement.18. Only after obtaining the Go eller affidavit did Hood h ave a good faith basisfor seeking investigatory depositions under Rule 202 . He could not have

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filed such a petition any earlier without run ning afoul of Rule 13 of theTexas Rules of Civil Procedure. See Tex. R. Civ. Proc. 13 ("The signaturesof attorneys or parties consti tute a certificate by them t h a t . . . to the best oftheir knowledge, information, and belief formed after reasonable inquiry theinstrument is not groundless and brought in bad faith or groundless andbrought for the purpose of harassment.").

19. H ood 's pursuit of Rule 202 anticipatory deposit ions dem onstratesextraordinary diligence.20. Rule 202 is a rule of civil - not criminal - procedure. Hood argued in theRule 202 procee dings that deposit ions could lead to evidence supporting anapplication for clem ency or request for reprieve. Simp ly because Rule 202yielded evidence pertinent to a challenge to Hood's conviction and sentence

does not mean that habeas counsel must pursue civil remedies to satisfytheir duty of exercising reasonab le diligence. In fact, the State repeatedlyaccused Hood of improperly using civil procedure to pursue habeas relief.See, e.g., M otion to Correct Misnom er of Pleadings and File as S ubsequentHabeas Petit ion (docketed A ug. 22, 2008); Motion to Forward A ll Pleadingsin Cause N umb er 296-80 233 -90 in the 296th Judicial D istrict Court ofCollin County, Texas (docketed Sept. 2, 2008).

21. Hood did not use Rule 202 until after the CCA had dismissed his successivehabeas petition raising the judicial bias claim for the first time - despite theGoeller affidavit. In other words , Ho od did not attemp t to use Ru le 202until the habea s process had proved futile.22. Pursuing deposit ions under Rule 202 demanded pa instaking research, aswell as substantial time and money to conduc t the litigation - includingresponding to the notices of removal filed by Judge Holland and Mr.O'C onne ll . An attorney exercising ordinary care and reasonable dil igencewould not have felt compelled to expend limited resources on such aspeculative undertaking.23 . The deposition testimony of Judge Holland and Mr. O'Connell constitutes anew factual basis for the judicial bias claim that "w as not ascertainab lethrough the exercise of reasonable diligence" at the time Hood filed hisprevious application. Tex. Co de. Crim . P. art 11.071, 5(e).

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III. RECOMMENDATION1. The Court has collected and adduced the evidence necessary to make a

recommendation on the two issues presented by the Court of CriminalAppeals. Based upon the evidence, pleadings and arguments of counsel, theCourt recommends that the doctrine of laches does not bar the considerationof Applica nt's claim. Based upon the evidence, pleadings and arguments ofcounsel, the Court recommends that Applicant meets the dictates of Article11.071 5 of the Texas Code of Criminal Procedure. The Courtrecommends that Applicant has satisfied the showing required by Article11.071 5 (a)(1).2. The Clerk of this Court is ordered to send these Recom mendations and the

record of any proceedings conducted in connection with this matter to theCourt of Criminal Appeals instanter.

SIGNED this

JUDGE GREG BREWER

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judge greg brewer's ruling in favor of charles dean hood

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