COMMENTARY
THE PROBLEM OF “RUBBER-STAMPING” IN
STATE CAPITAL HABEAS PROCEEDINGS: A
HARRIS COUNTY CASE STUDY
Jordan M. Steiker,∗ James W. Marcus,** and Thea J. Posel***
TABLE OF CONTENTS
I.

FRAMEWORK FOR FACT-FINDING IN TEXAS CAPITAL HABEAS
SCHEME ................................................................................................... 896

II. LOPSIDED FACT-FINDING IN HARRIS COUNTY CAPITAL
POST-CONVICTION CASES ................................................................. 898
III. A CLOSE EXAMINATION OF FACT-FINDING PRACTICES ........... 906
A.
B.

C.

Adopting Verbatim “State’s Proposed Findings of
Fact and Conclusions of Law” in Contested Cases ...... 907
Brief Time Intervals Between the Filing and
Signing of the State’s Proposed Findings and
Conclusions Suggest Cursory Engagement with
the Facts of the Case .................................................... 908
Sticky Notes Found in Files Suggest Ex Parte
Communications Between Post-Conviction
Prosecutors and Judges Regarding Proposed
Findings and Conclusions ........................................... 910

∗ Judge Robert M. Parker Chair in Law and Director of the Capital Punishment
Center, The University of Texas School of Law; J.D., Harvard Law School, 1988.
**
Clinical Professor and Co-Director, Capital Punishment Clinic, The University
of Texas School of Law; J.D., University of Houston Law Center, 1993.
*** Clinical Fellow, Capital Punishment Center, The University of Texas School of
Law; J.D., University of Colorado, 2016.
The authors are grateful for the invaluable assistance of our students: Bethanie J.
Crawford, Ilana Leuchtag, Ethan Levinton, Nichole E. Montalbano, Nicole W. Parreira,
Elizabeth A. Schmelzel, Nicole Searle, Fergus T. Smith, Jennifer Tang, and Seti Tesefay.

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D. Signs of Perfunctory Review, Including
Uncorrected Drafting Mistakes and Proofreading
Errors, Appear in Many Findings of Fact and
Conclusions of Law Adopted by the Trial Courts ........ 914
IV. THE TEXAS COURT OF CRIMINAL APPEALS’ TOLERATION
OF FLAWED FACT-FINDING PRACTICES IN
HARRIS COUNTY ................................................................................... 915
V.

UNRELIABLE RESULTS: A FEW ILLUSTRATIONS OF FLAWED
FACT-FINDING PRACTICES IN HARRIS COUNTY ......................... 916
A. Anthony Medina........................................................... 917
B. Dexter Johnson............................................................. 918
C. Steven Butler ................................................................ 919
D. Martin Draughon ......................................................... 921

VI. FACTORS CONTRIBUTING TO THE RUBBER-STAMPING
PHENOMENON ....................................................................................... 922
Resources ...................................................................... 923
Locating Post-Conviction Review in the Court of
Conviction .................................................................... 923
C. Trial Judge Selection ................................................... 924
D. No Consequences for Trial Courts’
Rubber-Stamping Approach ........................................ 925

A.
B.

VII. RESPONSES TO RUBBER-STAMPING ............................................ 925
VIII. CONCLUSION ...................................................................................... 929
When the United States Supreme Court embarked on
significant constitutional regulation of the American death
penalty beginning in the 1960s, prevailing practices were deficient
along numerous dimensions. Trial lawyers appointed to represent
capital defendants had no particular expertise in death penalty
litigation, and they had neither the resources nor the training to
develop compelling arguments to spare their clients. State capital
statutes contributed to the low level of representation, because
they often excluded evidence about a defendant’s background or
limitations, confining the presentation of evidence to the
circumstances of the crime.1 In some jurisdictions, capital trials
were “unitary,” with the jury deciding guilt and punishment at the
1. See, e.g., Robert E. Knowlton, Problems of Jury Discretion in Capital Cases, 101
U. PA. L. REV. 1099, 1108–20 (1953).

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same time, providing no special focus on the question whether
death ought to be imposed.2 Review of capital sentences was ad
hoc. Many states had not modernized their systems for challenging
convictions and sentences, instead relying on a set of arcane writs
and procedures; indigent death-sentenced inmates by and large
were not entitled to post-conviction counsel, so they were left to
navigate the procedural morass on their own.3 The absence of clear
standards for when death should be imposed, together with
rudimentary trial, appellate, and post-conviction processes, led to
arbitrary and discriminatory administration of the death penalty.
All of these deficiencies, together with the Court’s perception that
popular support for the death penalty was in steep decline,
contributed to the Court’s landmark 1972 decision in Furman v.
Georgia invalidating the old prevailing statutes.4 States quickly
revised their capital statutes in response, and when the Court
confronted the new statutes in 1976, it held that the death penalty
is not itself unconstitutional so long as it is administered with
heightened procedures to ensure its regular, even-handed
application.5 New state statutes enumerated aggravating and
mitigating circumstances to guide sentencer discretion.6 These
statutes also bifurcated the guilt and sentencing decisions to
ensure focused consideration on whether the defendant should be
put to death,7 and provided for new systems of review of capital
convictions and sentences.8
Perhaps one of the most significant structural changes in the
two decades following Furman involved the overhaul of state postconviction proceedings. State post-conviction review (also known
as “state habeas corpus”) affords inmates a forum for litigating
claims requiring factual development, such as claims regarding
the failure of trial counsel to undertake adequate investigation or

2. McGautha v. California, 402 U.S. 183, 208, 232 (1971).
3. Jordan Steiker, Restructuring Post-Conviction Review of Federal Constitutional
Claims Raised by State Prisoners: Confronting the New Face of Excessive Proceduralism,
1998 U. CHI. LEGAL F. 315, 340–44 (1998).
4. Furman v. Georgia, 408 U.S. 238, 241–42, 245, 249–50, 253, 256–57 (1972)
(Douglas, J., concurring); id. at 369 (Marshall, J., concurring) (stating that the average
citizen, if given “knowledge of all the facts presently available regarding capital
punishment” would not support it).
5. Gregg v. Georgia, 428 U.S. 153, 198, 206–07 (1976).
6. See, e.g., id. at 196–98.
7. Id. at 190–92.
8. See id. at 198.

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the state’s failure to disclose exculpatory evidence.9 If, for example,
state post-conviction investigation reveals that an inmate should
have been evaluated for intellectual disability, state post-conviction
counsel can seek relief from a capital sentence. Before Furman,
few states had comprehensive systems of post- conviction remedies
and virtually none provided counsel to indigent inmates seeking
to challenge their convictions; indeed, many inmates filed their
handwritten pro se applications without the benefit of an
investigation of any kind.10
States revamped their post-conviction schemes for two
reasons. First, the Court’s burgeoning constitutional regulation of
the death penalty increased the number and complexity of postconviction claims brought by death-sentenced prisoners and it
simply was no longer feasible to rely on ad hoc writs filed by
unrepresented inmates to resolve these claims.11 Second, states
wanted to insulate their convictions and sentences from federal
review.12 In the absence of effective state post-conviction
mechanisms, state death-sentenced prisoners can bring their nonrecord claims directly to federal court, where a federal judge
resolves factual disputes in the first instance. But where states
facilitate the resolution of such claims in state court, state inmates
are required to exhaust those opportunities, and the fact-findings
made in state court are afforded deference in federal court.13
Moreover, after the passage of the Antiterrorism and Effective
Death Penalty Act, state legal conclusions receive deferential
review as well.14 These limitations on federal habeas corpus
9. See Nancy J King, Appeals, in 3 REFORMING CRIMINAL JUSTICE: PRETRIAL AND
TRIAL PROCESSES 253, 258–59 (Erik Luna ed., 2017), http://academyforjustice.org/wpcontent/uploads/2017/10/12_Reforming-Criminal-Justice_Vol_3_Appeals.pdf
[https://perma.cc/K5AY-KRMD].
10.
Stefanie Lindeman, Because Death is Different: Legal and Moral Arguments for
Broadening Defendants’ Rights to Discovery in Federal Capital Cases, 73 ST. JOHN’S L. REV.
541, 562 (2012); Steiker, supra note 3 at 340–41; Bryan A. Stevenson, The Politics of Fear
and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. REV.
699, 715 (2002).
11.
See Kuhlmann v. Wilson, 477 U.S. 436, 450 (1986); Jeffrey T. Renz, PostConviction Relief in Montana, 55 MONT. L. REV. 331, 333–34 (1994); Steiker, supra note 3
at 340.
12.
Steiker, supra note 3, at 316–17, 341; see also CAROL S. STEIKER & JORDAN M.
STEIKER, COURTING DEATH: THE SUPREME COURT AND CAPITAL PUNISHMENT 171–72
(2016).
13. 28 U.S.C. § 2254(b), (d) (1995).
14. 28 U.S.C. § 2254(d)(1); see e.g. Buntion v. Quarterman, 524 F.3d 664, 670 (5th
Cir. 2008); cf. Brown v. Allen, 344 U.S. 443, 506 (1953) (Frankfurter, J., concurring) (stating
that a district judge “may accept” the determination in the prior state proceeding but that

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review elevate the importance of meaningful state post-conviction
review.15
Despite the modernization of state post-conviction schemes—
including the standardization of procedures for filing claims and
the provision of counsel to death-sentenced inmates—state postconviction adjudication remains one of the most troubling and
least reliable aspects of the contemporary American death penalty.
At its best, state post-conviction proceedings allow for an
important “second look” at what happened (or didn’t happen) at
trial. But in many jurisdictions, state post-conviction proceedings
are simply a sham, with state trial judges refusing to engage in any
meaningful fact-finding. Two practices are particularly
problematic: the reluctance of state trial courts to conduct
evidentiary hearings to resolve contested factual issues, and the
wholesale adoption of proposed state fact-finding instead of
independent state court decision-making.
State post-conviction applications often include numerous
affidavits from witnesses and experts about important evidence
that could have been, but was not, presented at trial. Such
affidavits might include evidence related to the accuracy of the
conviction, including forensic, alibi, or eyewitness testimony; or
the affidavits might highlight important mitigating evidence
regarding the inmate’s psychiatric or psychological impairments,
abused background, or redeeming qualities. In response, state
attorneys will solicit affidavits from trial counsel explaining why
such evidence was not discovered or introduced. When conflicting
affidavits arrive in this posture, an evidentiary hearing in state
post-conviction proceedings is usually essential to resolve the
conflicting accounts about trial counsel’s decision-making. An
affidavit indicating that trial counsel forwent certain investigation
as a matter of “trial strategy” should be subject to crossexamination, and live testimony will afford the trial court a
preferred position to make judgments about demeanor and
truthfulness. Yet in many courts, starkly different factual
state adjudication cannot “be accepted as binding”).
15. See Lee Kovarsky, Structural Change in State Postconviction Review, 93 Notre
Dame L. Rev. 443, 460–61 (2017) (quoting Joseph L. Hoffmann & Nancy J. King, Essay,
Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. REV. 791, 809 (2009))
(“The cumulative effect of the substantive and procedural restrictions on the federal habeas
remedy—which some prominent scholars now call a ‘pipe dream’—is to transform State
PCR into the pivotal postconviction forum.”).

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accounts about trial counsel’s decision-making are resolved on the
pleadings, in a process some courts euphemistically term “paper
hearings.”16
Worse still, in some cases state post-conviction courts decide
every single factual dispute against the inmate by rubberstamping the state’s proposed findings, even where there are
numerous (sometimes over a hundred) contested factual issues.17
In many instances, the state post-conviction court will not even
change the heading of the document, such that the state- drafted
order/opinion will become the official decision in the case.18 The
practice of state courts adopting proposed findings verbatim has
been subject to criticism from both courts and advocates, and a
recent petition for certiorari to the United States Supreme Court
challenged the practice as contrary to due process.19
This Article seeks to provide a thick description of the rubberstamping phenomenon in a particular jurisdiction—Harris
County. The focus on Harris County stems in part from the fact
that Harris County has been ground zero of the American death
penalty in the modern era, responsible for an extraordinary and
disproportionate share of executions in the United States over the
past forty years.20 In addition, post-conviction courts have a
16.
STEIKER & STEIKER, supra note 12, at 136.
17.
Id.; see also infra notes 51–62 (listing many cases where the state’s proposed
findings were rubber-stamped, even some with over a hundred contested factual issues).
18.
Brief for The Nat’l Ass’n of Criminal Def. Lawyers as Amici Curiae Supporting
Petitioner, Wood v. Allen, 558 U.S. 290 (2010) at 2.
19.
See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 571–72 (1985)
(discussing circumstances under which a court’s adoption of party-authored findings may
not deserve deference on review); Jefferson v. Upton, 560 U.S. 284, 292–94 (2010)
(criticizing verbatim adoption of party-authored facts under circumstances casting doubt
on the court’s engagement with the underlying facts); Jefferson v. Sellers, 250 F. Supp. 3d
1340, 1351–52 (N.D. Ga. Apr. 10, 2017) (arguing that “the practice of adopting verbatim
findings of fact prepared by the prevailing party in the context of a death penalty case is
especially troublesome, given that factfinding procedures in capital proceedings are to
‘aspire to a heightened standard of reliability’” citing Ford v. Wainwright, 477 U.S. 399, 411
(1986)); Brief for The Nat’l Ass’n of Criminal Def. Lawyers as Amici Curiae Supporting
Petitioner, supra note 18, at 2, 13, 18–21 (urging that deference should not be afforded to
the lower court findings of fact where circumstances suggested a lack of independent
judicial fact-finding); Petition for Writ of Certiorari at 3–4, 16–18, Hamm v. Allen, 137 S.
Ct. 39 (2016) (No. 15–8753) (arguing that deference should not be afforded to the lower
court findings of fact where circumstances suggested a lack of independent judicial factfinding).
20.
Scott Phillips, Legal Disparities in the Capital of Capital Punishment, 99 J. CRIM.
L. & CRIMINOLOGY 717, 720 (2009); see also FAIR PUNISHMENT PROJECT, TOO BROKEN TO
FIX: PART I: AN IN-DEPTH LOOK AT AMERICA’S OUTLIER DEATH PENALTY COUNTIES, 47–52,
(2016), http://fairpunishment.org/wp-content/uploads/2016/08/FPP-TooBroken.pdf
[https://perma.cc/J7CG-F9JY].

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reputation in Texas for lax fact-finding practices, rarely holding
evidentiary hearings, and frequently rubber-stamping stateproposed findings.21 This study examines all available records
regarding state post-conviction adjudication in Harris County
since 1995. We requested and reviewed files from the archives of
the Texas Court of Criminal Appeals (“CCA”), the Texas State
Archives, and the Harris County District Clerk’s Office. We
reviewed Harris County dockets for all cases in which a postconviction writ was filed and adjudicated. We obtained copies of
the Harris County trial courts’ findings of fact and conclusions of
law, the CCA orders ultimately granting or denying relief, and,
where possible, copies of the State’s proposed findings of fact and
conclusions of law to compare against the official findings entered
by the court.
The study reveals cursory, one-sided consideration of
contested factual issues. The resulting determinations undermine
the accuracy and fairness of the death penalty in Harris County.
We conclude that inadequate development of facts in state
habeas prevents Harris County post-conviction courts from
enforcing federal constitutional norms. Because even rubberstamped findings receive deference in federal court, the
inadequate state court resolutions frustrate the enforcement of
constitutional norms in federal court as well. Moreover, Harris
County judges’ frequent recourse to rubber-stamping discourages
state post-conviction lawyers from undertaking extensive factual
investigation. The rubber-stamping phenomenon creates a vicious
cycle, in which state post-conviction courts assume inmates’
petitions lack merit, thereby lowering the quality and quantity of
claims brought in state post-conviction. Finally, the rubberstamping practice undermines the legitimacy of Harris County
executions: every time an execution of a Harris County inmate
occurs, prosecutors and newspapers recount the many layers of
review undertaken before the execution. When those layers of
review afforded no meaningful consideration of the inmate’s
constitutional claims, they make the general public more
comfortable with the execution than is justified by the underlying
reality.
21.
TEXAS DEFENDER SERVICE, LETHAL INDIFFERENCE: THE FATAL COMBINATION OF
INCOMPETENT ATTORNEYS AND UNACCOUNTABLE COURTS IN TEXAS DEATH PENALTY
APPEALS 54 (2002), http://texasdefender.org/wp-content/uploads/Lethal-Indiff_web.pdf
[https://perma.cc/2GXQ-GHB4].

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FRAMEWORK FOR FACT-FINDING IN TEXAS CAPITAL
HABEAS SCHEME

In 1995, the Texas legislature passed Article 11.071 of the
Code of Criminal Procedure,22 establishing the current procedures
for habeas corpus proceedings in a capital case and delineating
rules for appointment and compensation of counsel,23 duties and
funding regarding investigation,24 treatment of untimely25 and
subsequent applications,26 factual development, and resolution of
issues.27 The Texas capital habeas corpus statutory scheme
imposes on trial judges a series of mandatory duties that render
trial court proceedings the “main event” of state habeas corpus
proceedings.28 As the Texas CCA has explained, “[t]he legislative
framework of Article 11.071 contemplates that the habeas judge is
. . . the factfinder who resolves disputed factual issues, the judge
who applies the law to the facts, enters specific findings of fact and
conclusions of law, and may make a specific recommendation to
grant or deny relief.”29 Although the CCA has sole authority to
grant habeas corpus relief,30 this court regularly defers to the trial
courts by adopting their factual findings and legal conclusions.31
Thus, Texas trial judges are fundamentally responsible for making
factual findings and adjudicating claims in capital habeas corpus
cases.
Capital habeas corpus proceedings begin with the filing of an
“application for a writ of habeas corpus” by an inmate, a document
that raises claims challenging the constitutionality of the
22.
TEX. CODE CRIM. PROC. art. 11.071 (West 2015).
23. Id. § 2.
24. Id. § 3.
25. Id. §§ 4, 4A.
26. Id. § 5.
27. Id. §§ 8, 9.
28.
Cf. Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (expanding default on federal
habeas to ensure that state capital trials serve as the “main event” in capital litigation).
29.
Ex parte Simpson, 136 S.W.3d 660, 668 (Tex. Crim. App. 2004).
30. TEX. CONST. art. V, § 5 (1876).
31.
See Ex parte Simpson, 136 S.W.3d at 668 (“The legislative framework of Article
11.071 contemplates that the habeas judge is . . .the factfinder who resolves disputed factual
issues, the judge who applies the law to the facts, enters specific findings of fact and
conclusions of law, and may make a specific recommendation to grant or deny relief.”); Ex
parte Briseño, 135 S.W.3d 1, 12–13 (Tex. Crim. App. 2004) (stating that, in the habeas
context, “we afford almost total deference to the trial judge’s determination of the historical
facts supported by the record”); see also LETHAL INDIFFERENCE, supra note 21, at 68 (a 2002
study conducted by Texas Defender Service found that the Court of Criminal Appeals
adopts the trial courts’ findings of fact and conclusions of law in 92% of cases examined).

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conviction and/or sentence. For initial applications, a writ issues
automatically upon the filing of the application in the trial court.32
The state then files an answer to the claims raised in the
application, or may rest on a general denial.33 No later than twenty
days after the state files their answer,34 the habeas court must first
determine the existence of “controverted, previously unresolved”
issues of material fact. If the convicting court determines that such
factual disputes exist, the court must enter an order designating
the unresolved issues and the method(s) for resolving them. The
statute authorizes the trial court to order affidavits,
interrogatories, and evidentiary hearings to develop the necessary
factual record.35
Article 11.071 section 9 lays out procedures and timelines for
resolving factual disputes through an evidentiary hearing, and
mandates that “parties shall file proposed findings of fact and
conclusions of law for the convicting court to consider” before the
court enters its “written findings of fact necessary to resolve the
previously unresolved facts and make conclusions of law.”36 Should
the court determine that no material facts are in dispute, it may
still request argument of counsel on one or more issues.37 Whether
or not additional argument is requested, section 8 similarly
requires parties to file proposed findings of fact and conclusions of
law for the court to consider38 and requires that “the convicting
court shall make appropriate written findings of fact and
conclusions of law.”
32.
Initial application procedures and timelines are laid out in the Texas Code of
Criminal Procedure. Id. § 6. Upon receipt of a second or subsequent application, the trial
court must immediately forward the application to the CCA for review and authorization.
Here, the CCA acts as a gatekeeper, determining if the petitioner has pled “sufficient
specific facts” establishing that one (or more) of three narrow exceptions has been met. If
the CCA determines that an exception has been met, a writ of habeas corpus is issued and
the case returns to the trial court for further proceedings in the same fashion as an initial
proceeding. Id. § 5(b).
33. Id. § 7.
34.
Id. § 8(c). Although the statute contemplates a regimented set of deadlines and
establishes due dates for each step throughout the habeas process, it is common practice
statewide for habeas courts—busy with trial dockets—to soften or extend briefing deadlines
at the request of parties or even sua sponte; just as often (particularly where factual
development is necessary and/or the issues are numerous) the convicting court considers
the briefings before them for much longer than the period contemplated by statute.
35.
Id. § 9 (also providing that habeas judges may use “personal recollection” to
resolve disputed issues).
36.
Id. § 9(e) (emphasis added).
37. Id. § 8(c).
38. Id. § 8(b).

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The statute therefore contemplates multiple mechanisms for
factual development if the court determines that controverted
issues of material fact exist. Additionally, parties may file motions
requesting evidentiary hearings or other factual development, but
they are not required to do so. The court is always empowered to
hold hearings or to order affidavits sua sponte when material facts
are in dispute,39 and the law always requires that each party
submit findings of fact and conclusions of law for the court to
consider before entering written findings and conclusions and
making a recommendation of relief to the CCA.
Although the CCA reviews the habeas court’s findings of fact,
conclusions of law, and recommendation before issuing the final
order granting or denying relief, the Texas standard of review is
extremely deferential. Trial court findings of fact are traditionally
reviewed for abuse of discretion,40 and the CCA will grant “almost
total deference to findings of historical fact[]”41 even when those
findings are supported by affidavits and not live testimony.42 In
issuing its final order, the CCA routinely adopts the trial court’s
findings of fact and conclusions of law in their entirety, often in
boilerplate two-page orders without any explication of relevant
facts or analysis of the claims presented.43 The findings of fact and
conclusions of law entered by the habeas court typically become
the ultimate factual findings of the case as it proceeds to federal
court, and are then subject to deferential review under the
Antiterrorism and Effective Death Penalty Act.
Thus, both the statutory scheme and established judicial
practice of convicting courts and the CCA situate the trial judge as
the primary—and often only—judicial fact-finder in Texas capital
habeas corpus proceedings.
II.

LOPSIDED FACT-FINDING IN HARRIS COUNTY CAPITAL
POST-CONVICTION CASES

In Harris County capital habeas corpus cases, trial courts
routinely sign the prosecution’s proposed orders in their
39. Id. § 9(a).
40.
5 TEX. JUR. 3d Appellate Review § 573 (2015).
41.
Ex parte Briseño, 135 S.W.3d 1, 12–13 (Tex. Crim. App. 2004).
42. Manzi v. State, 88 S.W.3d 240, 242–44 (Tex. Crim. App. 2002).
43.
A 2002 study found that in 92% of cases examined across Texas, the CCA adopted
the convicting court’s findings of fact and conclusions of law in toto. See LETHAL
INDIFFERENCE, supra note 21, at 68.

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entirety, notwithstanding the presence of significant factual
disagreements. Indeed, many Harris County judges have adopted
every single finding of fact and conclusion of law proposed by the
State and not one finding or conclusion proposed by the defense
in the course of adjudicating capital habeas petitions.44 The sheer
disparity in findings for the state raises the question of whether
the state habeas process in
Harris County is genuinely
adversarial.
The Capital Punishment Clinic at the University of Texas
School of Law has collected data in order to shed light on this
question. The elements tracked in the study include: the length of
time between the prosecution’s submission of proposed findings of
fact and conclusions of law and the date the habeas judge signed
the findings and conclusions of the court; the style and heading of
the court’s findings and conclusions; the use of an evidentiary
hearing or other means of factual development apart from
affidavits or proposed findings; the ultimate resolution of any
unresolved issues of material fact; the deference to the trial court’s
recommendation in the CCA; and subsequent review of state
determinations in federal court.
This ongoing review of Harris County capital habeas
proceedings reveals a pattern of extreme deference to prosecutorwritten findings and a strong disinclination to hold evidentiary
hearings to resolve disputed facts, raising questions about the
depth and accuracy of the trial court’s review. In an overwhelming
number of Harris County cases, trial courts adopted the state’s
proposed findings of fact and conclusions of law verbatim,
resulting in findings that in some instances are plainly
contradicted by the record. The existing data shows that wholesale
adoption rates without evidentiary hearings are an enduring and
pervasive practice in Harris County.45
44.
See id., at 54 (noting the practice throughout Texas generally).
45.
Administrative issues surrounding the recording and filing of post-conviction
documents have impacted the data collection efforts of this study, likely understating the
prevalence of the Harris County judiciary’s practice of adopting state-authored findings of
fact and conclusions of law in their entirety. The Harris County District Clerk’s online
information system, Judicial Information Management System (JIMS), does not always
indicate the dates of filing for parties’ proposed findings of fact and conclusions of law. In
some cases, the JIMS entry conflicts with the file stamp on the document itself. Some
original files have been checked out or are unavailable from the District Clerk’s office and/or
the off-site warehouse. These issues with record completion and file maintenance are
nothing new—similar issues hampered data collection efforts in Texas Defender Service’s
Lethal Indifference study in the early 2000’s. See LETHAL INDIFFERENCE, supra note 21, at

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Harris County judges have signed over 200 sets of findings of
fact and conclusions of law in Article 11.071 proceedings since the
passage of the statute in 1995.46 Of those, we have compiled
complete data sets—sufficient documentation to ascertain the
degree of similarity between the prosecutor’s proposed findings of
fact and conclusions of law and the official findings and
conclusions of the court—for 199 sets of findings of fact and
conclusions of law. In 191 of the 199 sets, the fact-finding process
has been contested, with Harris County prosecutors submitting
proposed findings of fact and conclusions of law recommending
that relief be denied.47 The statistical analysis that follows is in
the context of those contested cases.
In these cases, Harris County post-conviction prosecutors
have authored and proposed 21,275 separate findings of fact and
conclusions of law and the Harris County courts have adopted
20,261 of the prosecutors’ proposed findings verbatim: an adoption
rate of 95%.48 In fact, judges in Harris County have adopted all of
the prosecutors’ findings verbatim in 183 out of 191 sets of
findings, or 96%.49 In the vast majority (167) of those

54–55. The data compiled in this ongoing study is continuously being fact-checked and
updated as necessary; therefore, when filing dates and grants or denials of evidentiary
hearings cannot be confirmed, the data sets are left incomplete rather than making
assumptions. Throughout this Article, when a statement of fact contains (or could contain)
data points that are either unknown or unconfirmed, it is indicated and, if possible,
explained in the notes below.
46.
See infra notes 56–67.
47.
In the remaining eight sets of findings, the State-authored findings either
recommended that relief be granted or recommended that the CCA review the applicant’s
claims. Ex parte Alexander, No. 532255-C (338th Dist. Ct., Harris County, Tex., May
4, 2012) (prosecutors recommended review of Alexander’s Penry claim and the trial court
recommended relief); Ex parte Mason, No. 620024-B (228th Dist. Ct., Harris County., Tex.,
Nov. 6, 2012) (recommending review of Mason’s Penry claim); Ex parte Wheatfall, No.
608052-A (178th Dist. Ct., Harris County, Tex., Sept. 7, 2014) (recommending review of
Wheatfall’s Penry claim); Ex parte Reynosa, No. 941651-A (263d Dist. Ct., Harris County,
Tex., May 4, 2007) (recommending that the CCA extend Reynosa’s period to file his habeas
application after his lawyer missed the filing deadline); Ex parte Brown, No. 1035159-A
(351st Dist. Ct., Harris County, Tex., May 28, 2013) (recommending relief on a Brady
claim); Ex parte Carr, No. 644434-B (176th Dist. Ct., Harris County, Tex., Dec. 20, 2006)
(recommending relief on an Atkins claim); Ex parte Smith, No. 564448-B (351st Dist. Ct.,
Harris County, Tex., Feb. 10, 2004) (recommending relief on an Atkins claim); Ex parte
Smith, No. 1045419-A (263d Dist. Ct., Harris County, Tex., Apr. 10, 2012) (recommending
relief on an Atkins claim).
48.
See Appendix 2 (Contested Cases Chart).
49.
See Appendix 2 (Contested Cases Chart); Cf. LETHAL INDIFFERENCE, supra note
21, at 54 (noting a similar study done by Texas Defender Service that found a similar
percentage of cases with all prosecutor-authored findings (90%)).

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cases, the judges simply signed the state’s proposed document
without changing the heading.50
At least forty-seven judges have signed one or more sets of
findings in capital habeas proceedings under 11.071; we were able
to locate the data necessary to determine the rate at which judges
adopted the state’s findings for all but seven judges.51 Of the forty
judges for whom adoption rates can be fully ascertained, thirtyfour (85%) have—in every instance— adopted every single finding
of fact and conclusion of law proposed by the state verbatim.52 For
example, Judge Belinda Hill—who was appointed to the 230th
District Court in 1997 from the Harris County District Attorney’s
Office and resigned from the bench in 2012 to return to the
prosecutor’s office53— adopted the state’s proposed findings of fact
and conclusions of law verbatim in each of the fifteen (15) sets of
findings and conclusions she signed during her judicial tenure.54
Judge
50.
See infra notes 56–67; cf. LETHAL INDIFFERENCE, supra note 21, at 54
(highlighting the same trend as found in the ongoing University of Texas study).
51.
Adoption rates can be fully determined for 40 of 47 judges—for the other seven, a
copy of the State’s proposed findings of fact and conclusions of law is missing for
comparison. However, of those seven judges, five of them have a 99% or higher adoption
rate in the cases for which we have complete data sets.
52.
See Appendix 3 (Judicial Adoption Rates in Contested Cases Chart).
53.
Brian Rogers, Former Judge to Run District Attorney’s Office, HOUS. CHRON.
(Aug. 21, 2013),
https://www.houstonchronicle.com/news/houston-texas/houston/article/Former-judge-torun-district-attorney-s-office-4778476.php.
54.
Ex parte Ayestas, No. 754409-A (230th Dist. Ct., Harris County, Tex., Feb. 18,
2008) (113 findings of fact and conclusions of law); Ex parte Davis, No. 616522-A (230th
Dist. Ct., Harris County, Tex., Feb. 4, 1999) (15 findings of fact and conclusions of law); Ex
parte Duncan, No. 9402885-A (230th Dist. Ct., Harris County, Tex., Jul. 13, 2000) (102
findings of fact and conclusions of law); Ex parte Fratta, No. 1195044-B (230th Dist. Ct.,
Harris County, Tex., Jun. 29, 2004) (128 findings of fact and conclusions of law); Ex parte
Guidry, Nos. 1073163–A, -B (230th Dist. Ct., Harris County, Tex.) (90 findings of fact and
conclusions of law in 1073163-A, signed Jul. 14, 2000; 180 findings of fact and conclusions
of law in 1073163–B, signed Mar. 14, 2012); Ex parte Hunter, No. 968713-A (230th Dist.
Ct., Harris County, Tex., Jan. 14, 2008) (97 findings of fact and conclusions of law);
Ex
parte Jackson, No. 748752-A (230th Dist. Ct., Harris County, Tex., Sept. 1, 2004) (74
findings of fact and conclusions of law); Ex parte Ogan, No. 549893-A (230th Dist. Ct.,
Harris County, Tex., Mar. 11, 1999) (57 findings of fact and conclusions of law); Ex parte
Prystash, Nos. 723036–A, -B (230th Dist. Ct., Harris County, Tex.) (84 findings of fact and
conclusions of law in 723036–A, signed Feb. 25, 2004; 125 findings of fact and conclusions
of law in 723036–B, signed Sept. 25, 2012); Ex parte Rosales, No. 432787–B (230th Dist.
Ct., Harris County, Tex., Jun. 5, 2002) (49 findings of fact and conclusions of law); Ex parte
Rowell, No. 905130-A (230th Dist. Ct., Harris County, Tex., May 29, 2002) (59 findings of
fact and conclusions of law); Ex parte Smith, No. 274702–C (230th Dist. Ct., Harris County,
Tex., Dec. 28, 2012) (114 findings of fact and conclusions of law); Ex parte Wilson, No.
823411-A (230th Dist. Ct., Harris County, Tex., Mar. 26, 2003) (101 findings of fact and
conclusions of law).

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Michael McSpadden of the 209th District Court has presided over
nine habeas proceedings,55 the entirety of the 209th District’s
capital habeas docket since the passage of Article
11.071. In all nine proceedings, Judge McSpadden adopted every
one of the state’s proposed findings of fact and conclusions of law
verbatim—a total of 1109 findings of fact and conclusions of law.56
Judge Marc Carter of the 228th District Court has presided
over seven contested capital habeas proceedings in which he
signed findings of fact and conclusions of law, and he adopted
every one of the state’s 886 total proposed findings of fact and
conclusions of law, verbatim.57 Carter’s predecessor in the 228th
District, Judge Ted Poe, presided over four capital habeas
proceedings and adopted every single one of the state’s 458
proposed findings and conclusions.58 Judge Poe was presiding
55.
George Curry’s habeas application is currently pending in Judge McSpadden’s
court and findings of fact and conclusions of law have yet to be entered. Most recently, on
December 4, 2017, Judge McSpadden granted trial counsel Doug Durham an extension of
time to file an affidavit until December 23, 2017. Ex parte Curry, No. 1223596-A (209th
Dist. Ct., Harris County, Tex. Dec. 4, 2017). Curry’s proceeding will be the tenth in which
Judge McSpadden enters findings and conclusions.
56.
Ex parte Broxton, No. 599218-A (209th Dist. Ct., Harris County, Tex. Sept. 3,
1999) (71 findings of fact and conclusions of law); Ex parte Broxton, 599128-B (209th Dist.
Ct., Harris County, Tex. July 31, 2009) (110 findings of fact and conclusions of law); Ex
parte Coleman, No. 735351-A (209th Dist. Ct., Harris County, Tex. Mar. 6, 2001) (97
findings of fact and conclusions of law); Ex parte Cotton, No. 733844-A (209th Dist. Ct.,
Harris County, Tex. Apr. 17, 2000) (83 findings of fact and conclusions of law); Ex
parte Green, No. 823865-A (209th Dist. Ct., Harris County, Tex. Sept. 12, 2012) (94 findings
of fact and conclusions of law); Ex parte Kincy, No. 663162-A (209th Dist. Ct., Harris
County, Tex. Apr. 18, 2001) (99 findings of fact and conclusions of law); Ex parte
Landor, No. 1194597-A (209th Dist. Ct., Harris County, Tex. Feb. 12, 2016) (161 findings
of fact and conclusions of law); Ex parte Pippin, No. 9410637-A (209th Dist. Ct., Harris
County, Tex. Sept. 26, 2001) (268 findings of fact and conclusions of law); Ex parte Tamayo,
No. 9422714-A (209th Dist. Ct., Harris County, Tex. Mar. 28, 2003) (126 findings of fact
and conclusions of law).
57.
Ex parte Greer, No. 602461-B (228th Dist. Ct., Harris County, Tex. Oct. 10, 2006)
(27 findings of fact and conclusions of law); Ex parte Mason, No. 620074-A (228th Dist. Ct.,
Harris County, Tex. Dec. 28, 2009) (92 findings of fact and conclusions of law); Ex
parte Medina, No. 726088-B (228th Dist. Ct., Harris County, Tex. May 26, 2009) (254
findings of fact and conclusions of law); Ex parte Rivers, No. 475122-B (228th Dist. Ct.,
Harris County, Tex. Jan. 3, 2007) (91 findings of fact and conclusions of law); Ex parte
Rivers, No. 475122-B (228th Dist. Ct., Harris County, Tex. May 22, 2007) (146 findings of
fact and conclusions of law); Ex parte Wesbrook, No. 768395-B (228th Dist. Ct., Harris
County, Tex. Jan. 26, 2007) (119 findings of fact and conclusions of law); Ex parte Wesbrook,
No. 768395-B (228th Dist. Ct., Harris County, Tex. Sept. 5, 2014) (158 findings of fact and
conclusions of law).
58.
Ex parte Greer, No. 602461-A (228th Dist. Ct., Harris County, Tex. Aug. 2, 2002)
(207 findings of fact and conclusions of law); Ex parte McWilliams, No. 735581-A (228th
Dist. Ct., Harris County, Tex. Dec. 11, 2000) (43 findings of fact and conclusions of law); Ex
parte Rivers, No. 475122-A (228th Dist. Ct., Harris County, Tex. Aug. 14, 2002) (163

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over the 228th District bench when the provisions of Article
11.071 took effect in 1995, and Judge Carter remains the elected
judge in the 228th. In the twenty-two years since 11.071 became
law, the judges of the 228th District Court have been presented
with 1,466 proposed findings of fact and conclusions of law written
by post-conviction prosecutors in contested cases and have
adopted every single finding and conclusion verbatim.59 And
Judge Mary Lou Keel, former judge of the 232nd District Court,60
was presented with 905 proposed findings of fact and conclusions
of law written by Harris County prosecutors—she presided over
all six post-11.071 capital habeas cases adjudicated in the 232nd
District. In those six cases, Judge Keel adopted all eight sets of

findings of fact and conclusions of law); Ex parte Shannon, No. 639095-A (228th Dist. Ct.,
Harris County, Tex. Jan. 20, 2001) (45 findings of fact and conclusions of law).
59.
Visiting Judge Doug Shaver signed the findings in Coy Wayne Wesbrook’s initial
habeas corpus proceeding in 2002. Ex parte Wesbrook, No. 768395-A (228th Dist. Ct., Harris
County, Tex. Mar. 14, 2002) (122 findings of fact and conclusions of law).
60.
Judge Keel now serves on the Court of Criminal Appeals; she was elected to the
CCA on November 8, 2016. TEX. JUD. BRANCH, Judge Mary Lou Keel,
http://www.txcourts.gov/cca/about-the-court/judges/judge-mary-lou-keel
[https://perma.cc/5CQX-8NYD] (last visited Jan. 9, 2018).

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the state’s proposed findings of fact and conclusions of law, for a
100% adoption rate.61
Including the examples cited above, at least eight Harris
County courts—the 179th,62 183rd,63 184th,64 209th, 228th, 232nd,
263rd,65 337th,66 and 339th67 Districts—have never rejected a stateauthored finding of fact or conclusion of law since the passage of
Article 11.071, even when those findings and conclusions are plainly
contradicted by the record.68
Evidentiary hearings are indispensable tools of post-conviction
fact development, and yet preliminary data suggests that Harris
61.
Ex parte Basso, No. 816855-A (232d Dist. Ct., Harris County, Tex. Nov. 28, 2005)
(127 findings of fact and conclusions of law); Ex parte Campbell, No. 586190-A (232d Dist.
Ct., Harris County, Tex. Nov. 11, 1999) (44 findings of fact and conclusions of law); Ex
parte Escobedo, No. 783728-A (232d Dist. Ct., Harris County, Tex. Oct 28, 2008) (112
findings of fact and conclusions of law); Ex parte Escobedo, No. 783728-B (232d Dist. Ct.,
Harris County, Tex. Mar. 9, 2007) (113 findings of fact and conclusions of law; 111 adopted
verbatim and pen line through findings of fact 75 “during the cell inventory conducted at
the Polunsky Unit on July 20, 2006” and fact 76 “during the July 20, 2006 cell inventory at
the Polunsky Unit”); Ex parte Escobedo, No. 783728-B (232d Dist. Ct., Harris County, Tex.
Sept. 26, 2012) (127 findings of fact and conclusions of law); Ex parte Griffith, No. 9426715A (232d Dist. Ct., Harris County, Tex. Jul. 23, 2003) (14 findings of fact and conclusions of
law); Ex parte Soffar, No. 319724-C (232d Dist. Ct., Harris County, Tex. Jan. 5, 2012) (315
findings of fact and conclusions of law); Ex parte Tercero, No. 762351-A (232d Dist. Ct.,
Harris County, Tex. Jun. 10, 2005) (53 findings of fact and conclusions of law).
62.
Ex parte Mamou, No. 800112-A (179th Dist. Ct., Harris County, Tex. Nov. 13,
2013) (55 proposed findings of fact and conclusions of law signed by Judge Kristin Guiney);
Ex parte Morris, No. 602258-A (179th Dist. Ct., Harris County, Tex. Apr. 11, 2000) (76
proposed findings of fact and conclusions of law signed by Judge Mike Wilkinson); Ex
parte Rhoades, No. 612408-A (179th Dist. Ct., Harris County, Tex. May 21, 2014) (228
proposed findings of fact and conclusions of law adopted essentially verbatim by Judge
Kristin Guiney; Judge Guiney rearranged many of the proposed findings and conclusions
and duplicated two proposed findings twice each, for a total of 232 court’s findings—all of
which were authored by the prosecution); Ex parte Sales, No. 893161-A (179th Dist. Ct.,
Harris County, Tex. Aug. 15, 2014) (180 proposed findings of fact and conclusions of law
signed by Judge Kristin Guiney); Ex parte Sonnier, No. 648197-A (179th Dist. Ct., Harris
County, Tex. Jul. 31, 2003) (38 findings of fact and conclusions of law signed by Judge Mike
Wilkinson with a note, “I think I’ve previously signed this”).
63.
Ex parte Johnson, No. 573760-A (183d Dist. Ct., Harris County, Tex. May 22,
2003) (69 proposed findings of fact and conclusions of law signed by Judge Joan Huffman);
Ex parte Matthews, No. 941608-A (183d Dist. Ct., Harris County, Tex. Mar. 11, 2011) (106
proposed findings of fact and conclusions of law “signed in error” by Judge Vanessa
Velasquez on Feb. 2, 2011, before Matthews’ proposed findings were filed Feb. 18, 2011;
state’s proposed findings re-signed by Judge Velasquez on Mar. 11, 2011); Ex
parte Smith, Trial Court No. 1021168-A (183d Dist. Ct., Harris County, Tex. Sept. 26, 2014)
(113 proposed findings of fact and conclusions of law signed by Judge Vanessa Velasquez).
64.
Ex parte Charles, No. 941969-A (184th Dist. Ct., Harris County, Tex. Apr. 25,
2007) (152 proposed findings of fact and conclusions of law signed by Judge Jan Krocker);
Ex parte Goynes, Nos. 583424-A (184th Dist. Ct., Harris County, Tex. May 6, 2002) (92
proposed findings of fact and conclusions of law signed by Judge Jan Krocker) and 583424C (184th Dist. Ct., Harris County, Tex. Aug. 30, 2011) (14 proposed findings of fact and
conclusions of law signed by Judge Jan Krocker); Ex parte Martinez, No. 387158-A (184th

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County courts have entered findings of fact and conclusions of law
without the benefit of live hearings in the vast majority of capital
habeas proceedings conducted in the jurisdiction since the passage
of 11.071. In fact, among all fact-finding proceedings examined in
the study, available data69 indicates that the trial court has held a
Dist. Ct., Harris County, Tex. July 9, 1999) (41 proposed findings of fact and conclusions of
law signed by Judge Jan Krocker); Ex parte Martinez, No. 387158-C (184th Dist. Ct., Harris
County, Tex. Oct. 4, 2012) (88 proposed findings of fact and conclusions of law signed by
Judge Jan Krocker); Ex parte O’Brien, No. 9402971-A (184th Dist. Ct., Harris County, Tex.
Nov. 13, 2011) (107 proposed findings of fact and conclusions of law signed by Judge Jan
Krocker); Ex parte Sorto, No. 921805-A (184th Dist. Ct., Harris County, Tex. Dec. 29, 2008)
(64 findings of fact and conclusions of law signed by Judge Jan Krocker).
65.
Ex parte Dennes, No. 750313-A (263d Dist. Ct., Harris County, Tex. Aug. 21,
2013) (158 proposed findings of fact and conclusions of law signed by Judge Jim Wallace);
Ex parte Haynes, No. 783872-A (263d Dist. Ct., Harris County, Tex. Aug. 5, 2004) (50
proposed findings of fact and conclusions of law); Ex parte Newton, No. 474102-A (263d
Dist. Ct., Harris County, Tex. Jun. 5, 2000) (160 proposed findings of fact and conclusions
of law signed by Judge Jim Wallace); Ex parte Perez, No. 9414441-A (263d Dist. Ct., Harris
County, Tex. Jan. 26, 2001) (28 proposed findings of fact and conclusions of law signed by
Judge Jim Wallace); Ex parte Reynosa, No. 941651-A (263d Dist. Ct., Harris County, Tex.)
(23 proposed findings of fact and conclusions of law signed on October 11, 2006; 29 proposed
supplemental findings and conclusions signed on May 4, 2007).
66.
Ex parte Clay, No. 710714-A (337th Dist. Ct., Harris County, Tex. Oct.
13, 1999) (25 proposed findings of fact and conclusions of law signed by Judge George
Godwin); Ex parte Cruz-Garcia, No. 1384794-A (337th Dist. Ct., Harris County, Tex. Dec.
29, 2016) (192 proposed findings of fact and conclusions of law signed by Judge Renee
Magee); Ex parte Freeney, No. 909843-A (337th Dist. Ct., Harris County, Tex. Dec. 5, 2012)
(188 proposed findings of fact and conclusions of law signed by Judge Herb Ritchie); Ex
parte Freeney, No. 909843-A (337th Dist. Ct., Harris County, Tex. Dec. 10, 2013) (68
proposed supplemental findings of fact and conclusions of law signed by Judge Renee
Magee); Ex parte Thomas, No. 710716-A (337th Dist. Ct., Harris County, Tex. Jan. 3, 2002)
(39 proposed findings of fact and conclusions of law signed by Judge Don Stricklin).
67.
Ex parte Anthony Francois, No. 961278-A (339th Dist. Ct., Harris County, Tex.
Dec. 30, 2008) (30 proposed findings of fact and conclusions of law signed by Judge Caprice
Cosper); Ex parte McCullum, No. 9419102-A (339th Dist. Ct., Harris County, Tex. May 29,
2002) (32 proposed findings of fact and conclusions of law signed by Judge Caprice Cosper);
Ex parte McGowen, No. 448450-A (339th Dist. Ct., Harris County, Tex. May 19, 2006) (66
findings of fact and conclusions of law signed by Judge Charles Campbell); Ex
parte Medellin, No. 675430-A (339th Dist. Ct., Harris County, Tex. Jan. 22, 2001) (81
proposed findings of fact and conclusions of law signed by Judge Caprice Cosper); Ex
parte Morris, No. 597997-A (339th Dist. Ct., Harris County, Tex. Sept. 28, 1999) (106
proposed findings of fact and conclusions of law signed by Judge Caprice Cosper); Ex
parte Shore, No. 966087-A (339th Dist. Ct., Harris County, Tex. Sept. 11, 2012) (168
proposed findings of fact and conclusions of law); Ex parte Whitaker, No. 9424545-A (339th
Dist. Ct., Harris County, Tex. Nov. 18, 2002) (108 proposed findings of fact and conclusions
of law signed by Judge Caprice Cosper); Ex parte Woodard, No. 836845-B (339th Dist. Ct.,
Harris County, Tex. Sept. 19, 2006) (143 proposed findings of fact and conclusions of law
signed by Judge Caprice Cosper).
68.
For an example, see the case of Anthony Medina, infra notes 108–13 and
accompanying text.
69.
Available information often does not make clear whether or not a live evidentiary
hearing was held. For the purposes of the study, no assumptions were made—data was
gathered and compiled for all cases in which either the trial court findings of fact or the
CCA order explicitly stated that the trial court did hold an evidentiary hearing or the
hearing transcript was personally reviewed by the authors; cases were only counted as

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live hearing before entering findings of fact and conclusions of law
in only twenty-five confirmed instances.70 In some cases, the CCA
remanded the cause to the trial court with orders for factual
development—or specifically for a live hearing—but the trial court
either held a perfunctory “paper hearing,” by receiving additional
affidavits on the contested issue,71 or simply declined to hold a
hearing and adopted (or re-adopted) the state’s proposed findings
and conclusions verbatim.72
III.

A CLOSE EXAMINATION OF FACT-FINDING PRACTICES

The overwhelming rate of verbatim adoption of
state-authored findings of fact and conclusions of law—usually
without a hearing—suggests perfunctory fact-finding and legal
analysis. In many cases it is unclear from the clerk’s records
whether prosecutors filed a copy of their proposed findings in the
clerk’s office before the judge signed and adopted them, and in
some cases it is clear that they did not. Where the state does file
an unsigned copy with the court, the intervals between filing and
signing of the state’s proposed findings are often very brief
(sometimes within a single day), even in cases with over a hundred
proposed findings of fact and conclusions of law involving
extensive factual disputes. Buried in the original district clerk’s
files are handwritten notes, some on yellow Post-its, evidencing ex
parte communications between post-conviction prosecutors and
the presiding judges. Misspellings, misnumberings, and other
typographical errors are present throughout rubber-stamped
orders, suggesting that the court had not reviewed the document
before signing and adopting the state-authored findings in their
entirety. Despite these practices, the CCA continues to allow and
to encourage trial courts to adopt prosecutor-authored findings
and recommendations as their own. Indeed, the CCA rubberstamps the rubber-stamped recommendations of trial courts

having been denied a hearing when the docket indicates denial of a motion for an
evidentiary hearing.
70.
In 2002, Lethal Indifference found that a live evidentiary hearing was held in only
55 of 251, or 22%, of petitions reviewed statewide See LETHAL INDIFFERENCE, supra note
21, p. 54 n. 90. Although the data in the current study is still being compiled and is not yet
complete, preliminary indications reveal a Harris County hearing rate (in 25 of 191
contested fact-findings, or 13%) of approximately half that found statewide in 2002.
71.
See Ex parte Greer, No. 602461-B (228th Dist. Ct., Harris County., Tex., Oct. 10,
2006) (remanded by the CCA for a “live evidentiary hearing,” Ex parte Greer, No. WR53,836-02 (Sept. 14, 2005) and resolved by the trial court after ordering affidavits).
72.
For an example, see the case of Steven Butler, infra notes 117–29, and
accompanying text.

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almost without exception73—unless the trial court recommends
relief.74
A. Adopting Verbatim “State’s Proposed Findings of Fact and
Conclusions of Law” in Contested Cases
Harris County judges adopted all of the state’s proposed
findings verbatim in 183 of 191 instances, or 96% of the time. In
the vast majority (87%) of instances, trial judges summarily adopt
the state’s findings by signing the last page of the prosecutors’
proposed findings and conclusions, without revising the heading
“Respondent’s [or State’s] Proposed Findings of Fact and
Conclusions of Law.”75 Out of the 191 contested fact-finding
proceedings in Harris County for which complete data sets could
be obtained, there have been only six recommendations of relief.76
In 167 instances in which Harris County trial courts
recommended denying state habeas relief, it is clear that the trial
court’s findings were authored in their entirety by Harris County
prosecutors and embraced by the court, as the trial judge did not
change the heading on the prosecutor’s proposed findings of fact
and conclusions of law. 77 In 16 additional instances, the trial judge
73.
See LETHAL INDIFFERENCE, supra note 21, at 68 (at the time of 2002 study, CCA
adopted the trial court’s findings without revision in 92% of cases).
74. See, e.g., Ex parte Brown, WR-26,178–03, 2017 WL 4675396 at *1 (Tex.
Crim. App. Oct. 18, 2017) (rejecting a trial court recommendation of relief on a faulty
ballistics claim); Respondent’s Partially Adopted Proposed Findings of Fact, Conclusions of
Law, and Order at 58–67, 131, Ex parte Moore, No. 314483-C (trial court recommended
relief on Moore’s intellectual disability claim and adopted the state’s proposed findings and
conclusions relating to the other forty-seven claims; the CCA denied relief despite the
habeas court’s recommendation in Ex parte Moore 470 S.W.3d 481, (Tex. Crim. App. 2015),
rev’d sub nom Moore v. Texas, 137 S. Ct. 1039 (Mar. 28, 2017)); Court’s Findings of Fact,
Conclusions of Law and Order at 20, 62, Ex parte Sheppard, No. 668505-A (trial court
recommended relief on single ineffective assistance of counsel claim, CCA denied relief
despite the habeas court’s recommendation in Ex parte Sheppard, No. WR-78,132–01, 2013
WL 5568434, at *2 (Tex. Crim. App. Oct. 9, 2013) (per curium); Findings of Fact and
Conclusions of Law, Ex parte Smith, No. 564448-A, at 31–32 (351st Dist. Ct., Harris County,
Tex., Mar. 11, 1999), (trial court recommended relief after holding an evidentiary hearing
but the CCA denied relief over the habeas court’s recommendation in Order at 2, Ex
parte Smith, No. WR-40,874–01 (Tex. Crim. App. Apr. 21, 1999)).
75.
In 167 of 191 contested sets of findings.
76.
Ex parte Cathey, 451 S.W.3d 1, 4 (Tex. Crim. App. Nov. 5, 2014); Ex parte
Maldonado, No. 721568-B (338th Dist. Ct., Harris County, Tex., Dec. 12, 2012); Ex parte
Moore, No. 314483-C (185th Dist. Ct., Harris County, Tex., Feb. 6, 2014); Ex parte Plata,
No. 693143-B (351st Dist. Ct., Harris County, Tex., Sept. 28, 2007;); Ex parte Sheppard, No.
668505-A (185th Dist. Ct., Harris County, Tex., Aug. 24, 2012); Ex parte Williams, WR46,736–02 (Tex. Crim. App. Apr. 24, 2002).
77.
See supra Part III(A) discussing the adoption of proposed findings of fact without
modification.

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adopted the prosecution’s proposed findings verbatim after making
only cosmetic changes to the document, such as changing the title
or rearranging the order of the findings.78 Harris County judges
produced original work in just two out of 185 instances, or 1% of
the time, in which they recommended denying habeas relief. Put
differently, Harris County courts recommended denying relief in
185 out of 191 instances, and the courts adopted the state’s
proposed findings verbatim in 99% of the orders recommending
denial of the death-sentenced inmate’s claims.
B. Brief Time Intervals Between the Filing and Signing of the
State’s Proposed Findings and Conclusions Suggest
Cursory Engagement with the Facts of the Case.
It is sometimes unclear from the clerk’s records whether
prosecutors even filed a copy of their proposed findings before the
judge signed and adopted them. In some cases it is clear that
prosecutors did not file, in violation of statutory procedure.79
Intervals between filing and signing of the state’s proposed
findings are often remarkably brief, sometimes within a single
day. This is true even in cases where the state proposes over a
hundred findings of fact and conclusions of law and/or where
detailed factual disputes exist. Article 11.071 requires that the
parties “shall file” proposed findings of fact and conclusions of law
for the court to consider before making its own written findings.80
But in practice, Harris County courts often run afoul of this
statutory mandate. For example, in Ray Freeney’s case, Judge
Renee Magee signed the prosecutor’s proposed supplemental
findings on December 10, 2013, thirteen days before the deadline
for submission and before Freeney had even submitted his own
supplemental findings for the court to consider.81 In another
example, Harris County prosecutors filed their 105 proposed
findings of fact and conclusions of law in Bill Gates’s case on March
18, 2008; the trial judge signed and adopted them verbatim on
March 19, 2008.82
78.
For an example, see infra text accompanying notes 114–16, for a discussion on
the case of Dexter Johnson.
79.
See TEX. CODE CRIM. PRO. art. 11.071 § 8(b) (West 2015).
80.
Id.
81.
See Clerk’s Record, Ex parte Freeney, No. 909843-A (337th Dist. Ct., Harris
County, Tex. Dec. 10, 2013).
82.
Respondent’s Amended Proposed Findings of Fact, Conclusions of Law, and Order
at 1, 28, Ex parte Gates, No. 832407-A (262d Dist. Ct., Harris County, Tex., Mar. 19, 2008);

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Swift, verbatim adoption of the prosecutor’s proposed
findings is a common phenomenon.83 In fact, some judges have
rejected fact-intensive claims, based on voluminous trial and postconviction records, by signing off on the State’s proposed findings
of fact and conclusions of law on the same day the prosecutors file
the document.84 In the case of Dexter Johnson, infra, the
prosecutor filed sixty-one proposed findings of fact and conclusions
of law on February 24, 2010, and the judge signed the “Court’s
Findings” the same day.85 In some instances, judges adopt the
entirety of the state’s proposed findings and conclusions in toto
without any indication the document has been previously filed at
all.86 And in one particularly egregious example, Judge Charles
Campbell signed and adopted the state’s proposed findings of fact
and conclusions of law recommending that relief be denied to
Roger McGowen on May 19, 2006, and the order was entered into
the Harris County docket that same day—but the State’s proposed

Trial Court’s Findings of Fact and Conclusions of Law and Order of the Court at 22,
Ex parte Gates, No. 832407-A (262d Dist. Ct., Harris County, Tex., Mar. 19, 2008).
83.
See, e.g., State’s Proposed Findings of Fact, Conclusions of Law, and Order, Ex
parte Dennes, No. 750313-A (263d Dist. Ct., Harris County, Tex., Aug. 21, 2013) (adopting
158 findings and conclusions two days after submission); Respondent’s Proposed Findings
of Fact, Conclusions of Law, and Order, Ex parte Martinez, No. 387158-C (184th Dist. Ct.,
Harris County, Tex., Oct. 4, 2012) (adopting 88 findings and conclusions three days after
submission); Respondent’s Amended Proposed Findings of Fact, Conclusions of Law, and
Order, Ex parte Rivers, No. 475122-B (228th Dist. Ct., Harris County, Tex., May 22, 2007)
(adopting 145 findings and conclusions four days after submission); Respondent’s Proposed
Findings of Fact, Conclusions of Law, and Order, Ex parte Rivers, No. 475122-A (228th Dist.
Ct., Harris County, Tex., Aug. 14, 2002) (adopting 163 findings and conclusions two days
after submission); State’s Proposed Findings of Fact, Conclusions of Law, and Order, Ex
parte Russell, No. 898795-A (182d Dist. Ct., Harris County, Tex., Oct. 9, 2012) (adopting 92
findings and conclusions the day after submission); Respondent’s Proposed Findings of
Fact, Conclusions of Law, and Order, Ex parte Washington, No. 449603-B (185th Dist. Ct.,
Harris County, Tex., Sept. 28, 2006) (adopting 86 findings and conclusions two days after
submission); Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order, Ex
parte Wesbrook, No. 768395-B (228th Dist. Ct., Harris County, Tex., Jan. 26, 2007) (adopting
119 findings and conclusions two days after submission).
84.
See, e.g., Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order,
Ex parte Matamoros, No. 643410-B (180th Judicial District Ct., Harris County Tex., Dec.
18, 2006) (adopting 169 findings and conclusions based on a record that included a four-day
post-conviction hearing); see also Respondent’s Proposed Findings of Fact, Conclusions of
Law, and Order, Ex parte Janecka, No. 642963-A (248th Dist. Ct., Harris County, Tex.,
Sept. 13, 1999) (adopting 29 findings and conclusions on the day of submission).
85.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order,
Ex parte Johnson, No. 1085483-A (208th Dist. Ct., Harris County, Tex., Feb. 24, 2010).
86.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order, Ex
parte Sonnier, (179th Dist. Ct., Harris County, Tex., Jul. 31, 2003) (adopting 38 findings and
conclusions on the day of submission with a handwritten note that says “I think I’ve
previously signed this;” JIMS shows no separate filing date for the state’s proposed findings
and conclusions, and the file stamp on the official court findings is Sept. 22, 2003).

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findings themselves were not filed until May 25, 2006, six days
after the judge adopted them.87
Quick ratification of state proposed fact-finding and
conclusions is particularly worrisome when it occurs just before a
presiding judge transitions off the bench, often because of an
election loss. This has happened numerous times in Harris
County.88
C. Sticky Notes Found in Files Suggest Ex Parte
Communications Between Post-Conviction Prosecutors and
Judges Regarding Proposed Findings and Conclusions.
During the course of the study, evidence emerged of ex parte
communications between post-conviction prosecutors and the
presiding judges in the form of handwritten notes, some on yellow
Post-its, buried in the original files kept by the post-conviction
clerk.
87.
Findings of Fact, Conclusions of Law, and Order, Ex parte McGowen, No. 448450A (339th Dist. Ct., Harris County, Tex., May 19, 2006); cf. Respondent’s Proposed Findings
of Fact, Conclusions of Law, and Order, Ex parte McGowen, No. 448450-A (339th Dist. Ct.,
Harris County, Tex., May 25, 2006) (although the official findings signed by the court are
captioned “Findings of Fact, Conclusions of Law, and Order,” a side-by-side comparison
reveals that the substance of the two documents is otherwise identical).
88.
E.g., Respondent’s Suppl. Proposed Findings of Fact, Conclusions of Law, and
Order at 12, Ex parte Burton, No. 760321-B, (338th Dist. Ct., Harris County, Tex., Dec. 31,
2008) (47 proposed findings of fact and conclusions of law filed Dec. 5, 2008 and signed by
Judge Brock Thomas on Dec. 31, 2008, his last day on the bench); Brock Thomas,
https://ballotpedia.org/Brock_Thomas [https://perma.cc/G2GK-ZVHC] (last visited Feb. 7,
2018); State’s Proposed Findings of Fact, Conclusions of Law, and Order at 51, Ex
parte Cruz-Garcia, No. 1384974-A (192 proposed findings of fact and conclusions of law filed
by the state on Dec. 21, 2016 and adopted by Judge Renee Magee—who had refused to
recuse herself from the habeas proceedings despite an allegation of judicial misconduct
contained in the pleadings—verbatim on Dec. 29, 2016, two days before her term expired);
Applicant’s Objections to the Convicting Court’s Findings of Fact, Conclusions of Law, and
Request for Remand at 16–18, Ex parte Cruz-Garcia, WR-85,051–02 (Tex. Crim. App. May
5, 2017); Renee Magee, https://ballotpedia.org/Renee_Magee [https://perma.cc/Q8NTHMYZ] (last visited Feb. 7, 2018); Respondent’s Proposed Findings of Fact, Conclusions of
Law, and Order at 12, Ex parte Francois, No. 760321-B (339th Dist. Ct., Harris County,
Tex., Dec. 31, 2008) (30 proposed findings of fact and conclusions of law filed Dec. 15, 2008
and signed by Judge Caprice Cosper on Dec. 30, 2008, her second-to-last day on the bench);
Mark Bennett, Judge Caprice Cosper, DEFENDING PEOPLE: CRIMINAL DEFENSE AND FREE
SPEECH (May 21, 2008),http://blog.bennettandbennett.com/2008/05/
judge-cosper/ [https://perma.cc/2EPA-EY3T]; State’s Proposed Findings of Fact,
Conclusions of Law, and Order at 58, Ex parte Prevost, No. 1414421-A (351st Dist. Ct.,
Harris County, Tex., Jan. 3, 2017) (243 proposed findings of fact and conclusions of law filed
by the state on Dec. 22, 2016; in Prevost’s case, incoming Judge George Powell signed and
adopted the state’s proposed findings on the third day of his term, while outgoing Judge
Mark Ellis signed an identical copy of the prosecutors’ proposed findings on Jan. 17, 2017,
despite
having
left
the
bench
on
Dec.
31,
2016);
George
Powell,
https://ballotpedia.org/George_Powell [https://perma.cc/YYN5-QTT8] (last visited Feb. 7,
2018).

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Several of these notes suggest that Harris County postconviction prosecutors presented their proposed findings and
conclusions to the presiding judge off the record. For example,
Clyde Smith was executed in 2006 despite a substantial claim of
trial counsel ineffectiveness for failure to investigate and present
mitigating evidence. Although post-conviction investigation
revealed that Smith was abused as a child by his mother and her
five husbands, the penalty phase mitigation presentation offered
a sanitized, incomplete picture of Smith’s childhood. The State’s
proposed findings credited the affidavit of trial counsel, who stated
that he “discovered nothing unusual regarding [Smith]’s
background in defense counsel’s numerous conversations” with
Smith and his family members.89 The sequence of filings in Smith’s
proceedings proved hard to recreate,90 and a review of the hardcopy post-conviction file kept at the Harris County District Clerk’s
warehouse revealed multiple unsigned copies of the state’s
proposed findings, including one without a signature but datestamped in the signature line “04/21/99,” and a signed copy dated
July 27, 2000. Multiple yellow sticky notes reflecting
communications between the judge, the prosecutors, and the postconviction clerks were found in the file on various copies of the
proposed findings, including an undated note from a former

89.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order at 5, Ex
parte Smith, No. 629259-A (338th Dist. Ct., Harris County, Tex., July 27, 2000).
90.
The Judicial Information Management System used to track Harris County
criminal cases but does not indicate a filing date for the proposed findings of fact and
conclusions of law, and the earliest file stamp on a copy of the state’s proposed findings
found in the file is August 10, 1998. Respondent’s Proposed Findings of Fact, Conclusions
of Law and Order at 8, Ex parte Smith, No. 629259-A (338th Dist. Ct., Harris, County, Tex.
Aug. 10, 1998).

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post-conviction prosecutor: “Veronica - Please do not send up
to judge—I will give judge a copy—Thanks, [prosecutor].”91

In another example, the note in the file seems to reference
previous ex parte communications between the prosecutor and the
judge. Charles Thacker raised several ineffective assistance of
counsel claims in his application for a writ of habeas corpus, and
the State attached an affidavit from trial counsel to its answer to
undermine Thacker’s assertions.92 On the signed copy of the
“Respondent’s Proposed Findings of Fact and Conclusions of Law”
found in the Harris County District Clerk’s file, a sticky
91.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order at 1, Ex
parte Smith, No. 629259-A, prosecutor’s note to Presiding Judge (338th Dist. Ct., Harris
County, Tex Apr. 21, 1999) (photographed by study authors on July 26, 2017, during a file
review in original post-conviction file in Harris County Clerk Warehouse, 1301 Franklin
St.).
92.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order at 6, Ex
parte Thacker, No. 661866-A (338th Dist. Ct., Harris County, Tex., Jul. 11, 2000).

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note from post-conviction prosecutor Eric Kugler reads, “Dear
Judge, you wanted me to remind you about this case on
4/19/00. Here is an extra copy of the State’s proposed FOF. Eric
Kugler x 5826.”93

93.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order at 1, Ex
parte Thacker, No. 661866-A (338th Dist. Ct., Harris County, Tex., Jul. 11, 2000)
(Photographed by study authors on July 21, 2017, during a file review in original postconviction file in Harris County Clerk Warehouse, 1301 Franklin St.).

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D. Signs of Perfunctory Review, Including Uncorrected
Drafting Mistakes and Proofreading Errors, Appear in
Many Findings of Fact and Conclusions of Law Adopted
by the Trial Courts.
Misspellings, misnumbering, and other typographical
errors are scattered throughout many of these official documents,
suggesting that the court either did not read—or gave no more
than cursory attention to—the State-authored findings before
signing and adopting them in their entirety.
In Ex parte Thompson, Judge Denise Bradley signed the
State’s proposed findings of fact and conclusions of law just one
day after the State filed them, on February 8, 2013.94 This was all
the more extraordinary in light of the facts that (1) she was not
presiding over the case; and even if she had been assigned to the
case, (2) she adopted the State’s findings ten days before Thompson
filed his proposed findings. On February 22, 2013, the judge
presiding over the case—Judge Doug Shaver—signed an identical
copy of the State’s proposed findings. Three days later, Judge
Denise Bradley issued an order acknowledging that she was not
presiding over the case and rescinded her findings, which were
“signed in error.”95 Less than two months later, the Court of
Criminal Appeals adopted the findings and conclusions of the trial
court and followed the lower court’s recommendation, denying
Thompson relief.96 However, the CCA order also noted that the
“State’s Proposed Findings of Fact, Conclusions of Law and Order”
signed by the trial court included an erroneous characterization of
a witness’s testimony as a punishment phase rather than a guiltinnocence phase witness97 and had reached the merits of several
non-cognizable claims.98
In another example suggesting perfunctory review, Judge
Michael McSpadden signed and adopted the State’s 99 proposed
findings of fact and conclusions of law in Kevin Kincy’s case
despite multiple misnumberings throughout the document,
including on the last page right above the signature line.99 Though
94.
Findings of Fact, Conclusions of Law, Ex parte Thompson, No. 782657-A (262d
Dist. Ct., Harris County Tex., Feb. 8, 2013).
95.
Order, Ex parte Thompson, No. 782657-A (262d Dist. Ct., Harris County Tex.,
Feb. 25, 2013).
96.
Ex parte Thompson, Nos. WR-78,135–01, –02, 2013 WL 1655676, at * 1 (Tex.
Crim. App. Apr. 17, 2013).
97.
Id.
98.
Id.
99.
Respondent’s Amended Proposed Findings of Fact, Conclusions of Law, and Order
at 15, 16, 20, Ex parte Kincy, No. 663162-A (209th Dist. Ct., Harris County Tex. Apr. 18,
2001) (misnumberings in findings of fact).

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the findings and conclusions in Dexter Johnson’s case are entitled
“The Trial Court’s Findings of Fact and Conclusions of Law,” the
document itself bears multiple indications that the post-conviction
prosecutor produced it, including identical misnumberings in both
the “Respondent’s Proposed” and “Trial Court’s” findings and
conclusions.100 And Judge Marc Carter, adopted all 254
state-authored findings verbatim in Anthony Medina’s case—with
the result that the official findings of fact and conclusions of law
recommending denial of relief on an ineffective assistance of trial
counsel claim consistently misspelled trial counsel’s name
throughout.101 Despite indications of perfunctory review in the
convicting courts, the CCA accepted the state-authored findings in
virtually all of the above cases, denying relief with little or no
change to the rubber-stamped findings.102
IV.

THE TEXAS COURT OF CRIMINAL APPEALS’ TOLERATION
OF FLAWED FACT-FINDING PRACTICES IN HARRIS
COUNTY

The CCA’s reticence to intervene in trial court practices is
most evident where the text of the trial court’s findings of fact and
conclusions of law contain blatant errors or unsupportable
assertions, but is not limited to those cases. The unquestioning
deference to post-conviction prosecutors that is pervasive
throughout the Harris County courts is particularly problematic
in light of the requisite statutory deference to trial court findings
of fact and lack of de novo review in the CCA. Thorough and
discerning review of a trial courts’ findings of fact, conclusions of
100.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order at
20–21, Ex parte Johnson, No. 1085483-A (208th Dist. Ct., Harris County, Tex. Feb. 12, 2010)
cf. Trial Court’s Findings of Fact, Conclusions of Law, and Order at 20–21, Ex parte
Johnson, No. 1085483-A (208th Dist. Ct., Harris County, Tex. Feb. 24, 2010).
101.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order at 34, Ex
parte Medina, No. 726088-B (228th Dist. Ct., Harris County Tex. Apr. 25, 2008) (misspelling
co-counsel Jack Millin’s name “Mullin” and “Mullins”).
102.
See Part II(D) and accompanying text. Ex parte Burton, No. WR-64,360–02, 2009
WL 1076776, at *1 (Tex. Crim. App. Apr. 22, 2009); Ex parte Francois, No. WR-71,345–01,
2009 WL 624006, at *1 (Tex. Crim. App. Mar. 11, 2009); Ex parte Freeney, No. WR-78,109–
01, 2014 WL 333695, at *1 (Tex. Crim. App. Jan. 29, 2014); Ex parte Gates, No. WR-69,637–
01, 2008 WL 3856718, at *1 (Tex. Crim. App. Aug. 20, 2008); Ex parte Johnson, No. WR73,600–01, 2010 WL 2617804, at *1 (Tex. Crim. App. Jun. 30, 2010) (with the exception of
footnotes 1, 2, 5, 10–13, & 17); Ex parte Kincy, No. WR-50,266–01, at 2 (Tex. Crim. App.
Nov. 21, 2001); Ex parte Medina, Nos. WR-41,274–02, –04, 2009 WL 2960466, at *1 (Tex.
Crim. App. Sept. 16, 2009); Ex parte Rivers, No. WR-53,608–02, 2007 WL 2660291, at *1
(Tex. Crim. App. Sept. 12, 2007) (with the exception of finding 27); Ex parte Russell, No.
WR-78,128–01, 2013 WL 6212211, at *1 (Tex. Crim. App. Nov. 27, 2013); Ex parte
Thompson, Nos. WR-78,135–01, –02, 2013 WL 1655676, at *1 (Tex. Crim. App. Apr. 17,
2013).

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law, and recommendation occurs only in the rare instance in which
the trial court recommends that relief be granted. In one such case,
the petitioner, Eric Cathey, raised a substantial Atkins claim in a
subsequent application, and his case was remanded to the trial
court for a live hearing. In its remand order, the CCA gave the trial
court explicit directions on the factual issues to be developed.103
After conducting a five-day hearing, presiding Judge Shawna
Reagan adopted Cathey’s proposed findings and recommended
relief on her last day in office, December 31, 2012.104 The CCA
rejected the trial court’s findings and recommendation and instead
denied Cathey relief. In its lengthy order, the CCA pointed out that
the habeas judge signed the findings recommending relief on her
last day in office and concluded that “the record does not support
the habeas judge’s factual findings or legal conclusions.”105 And yet
the
CCA
has
adopted
numerous
rubber-stamped
recommendations that relief be denied that were signed by trial
judges on their way off the bench without reservation.106 The
recommendation of relief in Eric Cathey’s case was one of only
three confirmed instances in which the Harris County courts have
adopted an applicant’s proposed findings of fact and conclusions of
law in a contested case since the passage of Article 11.071 in
1995.107
V.

UNRELIABLE RESULTS: A FEW ILLUSTRATIONS OF
FLAWED FACT-FINDING PRACTICES IN HARRIS COUNTY

The failure of Harris County state post-conviction courts to
afford fair and reliable consideration of inmates’ constitutional
claims becomes apparent when individual cases are examined
closely. Anthony Medina’s state habeas proceedings reflect a case
in which the prosecutor alone controlled the fact-finding process,
resulting in findings inconsistent with the trial record. The
findings of fact and conclusions of law in Dexter Johnson’s case
suggest that the problem of one-sided rubber-stamping might be
more prevalent than a review of document headings would
103.
Ex parte Cathey, No. WR-55,161–02, 2008 WL 4927446, at *1 (Tex. Crim. App.
Nov. 18, 2008).
104.
Order at 2, Ex parte Cathey, No. 713189-B (176th Dist. Ct., Harris County Tex.
Dec. 31, 2012).
105.
Ex parte Cathey, 451 S.W.3d 1, 4 (Tex. Crim. App. 2014).
106.
See supra note 88 and accompanying text (discussing expedient judicial adoptions
of the state’s proposed findings of fact and conclusions of law as judges depart after an
election loss).
107.
Ex parte Brown, No. 636535-B (351st Dist. Ct., Harris County Tex., Dec. 19,
2016); Ex parte Cathey, supra note 127; Ex parte Nelson, No. 483164-B (178th Dist. Ct.,
Harris County Tex., Dec. 28, 2012).

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indicate because the trial court chose not to sign the prosecutor’s
proposed findings only to reproduce the identical findings and
issue them as its own. Steven Butler’s case provides the rare
example of a case in which a CCA judge expressed dismay with the
rubber-stamping process in the Harris County trial court. The case
of Martin Draughon demonstrates that Harris County’s rubberstamping process will inevitably fail to vindicate meritorious
claims.
A. Anthony Medina.
Anthony Medina’s state habeas proceedings are illustrative of
a case in which the central fact-finding role was played by the
prosecutor: it is clear that the post-conviction prosecutor authored
not only the state court findings of fact and conclusions of law, but
the affidavits of critical actors on which the findings relied,
including the affidavit submitted by Medina’s trial lawyer in
response to a substantial claim of ineffective assistance of counsel.
Medina’s case was the last of four unrelated capital cases that his
lead counsel tried over a seven-month period. Lead counsel was in
trial on the first of these four cases when appointed to Medina’s
case and, despite trying two other capital cases in the interim, he
took Mr. Medina’s case to trial just six months after being
appointed. Second chair counsel tried two other capital murder
cases during the six months between his appointment in Medina’s
case and taking it to trial. He was also fatally ill during trial and
passed away during the month following the verdict.108
In his state habeas application, Medina alleged that his
attorneys’ pre-trial investigation was deficient in numerous
respects. For example, Medina alleged that counsel failed to secure
records showing Medina’s good behavior in the Harris County jail
prior to trial. Lead counsel’s post-conviction affidavit in response
stated that the omission was a strategic decision because “juries
are typically not impressed” with an argument that a defendant
posed no problems in jail.109 However, the record shows that the
defense argued just that—that Medina posed no problems in jail—
during his closing argument and was shut down by a state
objection due to the lack of evidence in the record.110 In addition to
being squarely contradicted by the record, a reviewing court might
108.
Application for Writ of Habeas Corpus by a Person Sentenced to Death at 28–33,
Ex parte Medina, No. 726088-B (228th Dist. Ct., Harris County, Tex. Apr. 10, 2001).
109.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order, Ex. C at
3, Ex parte Medina, No. 726088-B (228th Dist. Ct., Harris County, Tex. Apr. 25, 2008).
110.
Application at 131–33, Ex parte Medina, No. 726088-B (228th Dist. Ct., Harris
County, Tex. Apr. 10, 2001)

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have found lead counsel’s post-conviction affidavit suspect for
another reason. The second chair counsel’s last name was “Millin,”
and lead counsel had tried other cases with him the past. Yet, lead
counsel’s affidavit referred to his co-counsel as “Mullin”
throughout.111 This same misspelling of the co-counsel’s name
appeared throughout the prosecutor’s pleadings, including her
answer to Medina’s application and her proposed findings of
fact,112 leaving no doubt that these documents were all prepared
by the same person. Despite the consistent misspelling of a central
actor in the case and assertions clearly contradicted by the trial
transcript, the trial court rubber stamped all 254 of the state’s
proposed findings of fact and conclusions of law—which repeatedly
relied on the “credible” affidavit of trial counsel—without so much
as changing the heading, let alone addressing the inaccuracies of
the findings themselves.113
B. Dexter Johnson.
While the number of trial court findings that bear the “State’s
Proposed” caption is high, the findings of fact and conclusions of
law in Dexter Johnson’s case suggest that the problem of one-sided
rubber-stamping may be more prevalent than a review of
document headings would indicate. Instead of a signed copy of the
prosecutor’s proposed findings summarily adopted as the findings
and conclusions of the trial judge, the findings of fact and
conclusions of law document in Johnson’s case is captioned “The
Trial Court’s Findings of Fact and Conclusions of Law and Order
of the Court.”114 However, a line-by-line comparison against the
state’s proposed findings and conclusions indicates that the two
documents are entirely identical in substance, with the exception
that the court’s findings do not bear the prosecutor’s signature
block or certificate of service and the spacing has been rearranged
to make up for the extra room left at the bottom of the last page by
the omission of the signature block.115 The prosecutor’s proposed
111.
Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order, Ex. C,
Ex parte Medina, No. 726088-B (228th Dist. Ct., Harris County, Tex. Apr. 25, 2008).
112.
See e.g., Respondent’s Proposed Findings of Fact, Conclusions of Law and Order
at 34–35, Ex parte Medina, No. 726088-B (228th Dist. Ct., Harris County Tex. Apr.
25, 2008).
113.
Findings of Fact, and Conclusions of Law at 34–35, Ex parte Medina, No. 726088B (228th Dist. Ct., Harris County., Tex. May. 26, 2008). Mr. Marcus is currently counsel for
Mr. Medina in federal habeas corpus proceedings but did not represent Medina in the state
proceedings described herein.
114.
Trial Court’s Findings of Fact, Conclusions of Law, and Order at 1, Ex parte
Johnson, No. 1085483-A (208th Dist. Ct., Harris County, Tex. Feb. 24, 2010).
115.
Id. at 21–22; Respondent’s Proposed Findings of Fact, Conclusions of Law, and

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findings and the trial court’s adopted findings are written in the
same distinctive font and share the same mistake in numbering in
the final set of conclusions of law. Both sets are file-stamped on
February 24, 2010, and Judge Denise Collins signed the document
captioned “The Trial Court’s Findings” on the same day.
The issues in Johnson’s case were not boilerplate—he had a
history of low IQ scores, schizophrenia, brain damage, and
learning difficulties, and the claims raised in his habeas
application attack both the voluntariness of his statements to
police and the effectiveness of his appellate counsel.116 However,
circumstances indicate that the trial judge either signed the
findings authored by the state the very same day they were filed
(changing the heading herself), received an ex parte copy of the
state’s proposed findings to consider before they were filed with
the court, or was provided with a clean and revised copy of the
state’s proposed findings by the prosecutor to further streamline
the rubber-stamping process. Out of 185 sets of findings
recommending that relief be denied in contested cases, sixteen of
the eighteen sets that are not captioned “State’s [or Respondent’s]
Proposed Findings” are nevertheless identical in substance—like
in Dexter Johnson’s case—with only minor cosmetic changes.
C. Steven Butler.
Steven Butler’s is the rare case in which a CCA judge
expressed dismay with the rubber-stamping process in the Harris
County trial courts. Butler’s first subsequent post-conviction writ
raising an Atkins claim was denied in 2007,117 after a hearing in
which Dr. George Denkowski testified for the state.118 Despite
Butler’s extensive evidence of intellectual disability, including an
IQ score of 69 (administered by Denkowski himself in 2006) and
testimony from a defense expert contradicting and refuting
Denkowski’s statements and methodology, the trial court adopted
the state’s proposed findings verbatim and denied relief based in

Order, at 21–22, Ex parte Johnson, No. 1085483-A (208th Dist. Ct., Harris County, Tex.
Feb. 24, 2010).
116.
See Trial Court’s Findings of Fact, Conclusions of Law, and Order at 2, 4–5, 13–
14, Ex parte Johnson, No. 1085483-A (208th Dist. Ct., Harris County, Tex. Feb. 24, 2010).
117.
Ex parte Butler, 416 S.W.3d. 863, 863–64 (Tex. Crim. App. 2012) (per curiam).
118. Id. at 863–64.

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large part on Denkowski’s evaluation, affidavit, and testimony.119
Butler then sought relief in federal court.
Denkowski was subsequently disciplined by the Texas State
Board of Examiners of Psychologists and entered into a settlement
agreement with the State of Texas to no longer engage in
intellectual disability evaluations of death-row inmates.120 The
Court of Appeals for the Fifth Circuit then granted Butler’s
request for a stay of the federal proceedings to return to state court
for reconsideration of his Atkins claim.121 The CCA revisited the
prior habeas denial on its own motion,122 remanding the cause to
the trial court “to allow it the opportunity to re-evaluate its initial
findings, conclusions, and recommendation in light of the
Denkowski Settlement” and inviting the convicting court to “order
affidavits or hold a live hearing if warranted.”123
On remand, Butler offered new affidavits and moved for a
hearing, but the trial court announced that it would not reconsider
its Atkins ruling and did not rule on the hearing request. Instead,
the court ordered the state to submit a new set of proposed findings
(without requesting the same from Butler) and signed the state’s
proposed findings without a single change on February 28, 2012.124
The state’s “new” findings merely removed the word “credible”
from the existing citations to “the credible affidavit of
Dr. Denkowski.” At least nineteen findings of fact were edited this
way (#57, 60, 62, 63, 69, 70, 71, 74, 75, 76, 85, 88, 90, 92, 93, 94,
95, 96, 97); in two conclusions of law the citation to “the credible
affidavit of Dr. Denkowski” is removed entirely, but the
conclusions are otherwise copied verbatim from the prior findings.
Butler filed objections to the trial court’s wholesale adoption of the
thinly-revised findings of fact and conclusions of law, but the CCA
affirmed the trial court’s denial of relief.125 The case is remarkable
for the lengthy dissent, authored by Judge Price and
119.
Id. at 872–73, 878–81 (Price, J., dissenting).
120.
See Maldonado v. Thaler, 625 F.3d 229, 234 (5th Cir. 2010) (noting the
proceedings brought against Denkowski in the State Office of Administrative Hearings);
Pierce v. Thaler, 604 F.3d 197, 213 (5th Cir. 2010) (noting that the CCA had recently found
Denkowski’s credibility to be lacking in Ex parte Plata, No. AP-75,820, 2008 WL 151296
(Tex. Crim. App., Jan. 16, 2008)).
121.
See Ex parte Butler, 416 S.W.3d. at 863.
122.
In most cases where the state relied on testimony from Denkowski to combat a
claim of intellectual disability, the CCA exercised its authority to revisit prior
determinations on its own motion, as in Ex parte Butler, No. WR-41,121–02, 2011 WL
6288411, at *1 (Tex. Crim. App. Dec. 14, 2011) (per curiam).
123.
Id.
124.
State’s Proposed Findings of Fact, Conclusions of Law, and Order Following
Remand, Ex parte Butler, No. 511112-B (185th Dist. Ct., Harris County, Tex. Feb. 28, 2012).
125.
Ex parte Butler, 416 S.W.3d. at 864.

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joined by Judge Johnson, lamenting both the rubber-stamping and
lack of meaningful engagement in the trial court, and criticizing
the majority’s adoption of the lower court recommendation.126 The
dissenters “would [have] reject[ed] the convicting court’s
recommended findings of fact and conclusions of law as
insupportable,”127 asserting that although the case was remanded
for reconsideration, “[t]he convicting court has apparently refused
to avail itself of this opportunity.”128 Despite the minor revisions in
the findings on remand, Judge Price found that “[n]either the
amendments themselves nor the process by which they were made
inspire confidence.”129
D. Martin Draughon.
The case of Martin Draughon illustrates how meaningful
review can make a difference in constitutional adjudication.
Draughon was denied relief based on findings that were authored
by Harris County prosecutors and rubber-stamped by both the
habeas court and the CCA. Draughon thereafter won relief in
federal court.
Draughon was charged and convicted of capital murder
during the course of a robbery.130 At trial, Draughon testified that
he fired his gun aiming above the crowd from a pick-up truck bed
as he and his codefendant were fleeing the robbery. Draughon
testified that he did not intend to hurt anyone and did not know at
the time that he had in fact shot someone. The state presented
expert testimony that the bullet that killed the decedent showed
no signs of a ricochet and was likely fired at close range; the
defense did not present any ballistics testimony to counter the
state’s narrative. In his state habeas petition, Draughon raised an
ineffective assistance of counsel claim for failure to investigate and
present ballistics evidence, offering an affidavit from Dr. Vincent
DiMaio stating that the bullet found at the autopsy showed signs
of a ricochet/impact before contact with the victim. Draughon also
offered an affidavit from his codefendant Gafford corroborating
Draughon’s version of events and asserting that Gafford had
shared this information with police at the time of arrest. The trial
court found that no evidentiary hearing was necessary and signed
the state’s proposed findings declaring Draughon’s evidence
126.
127.
128.
129.
130.

Id. at 878, 883–84 (Price, J., dissenting).
Id. at 883–84.
Id. at 880.
Id. at 881.
Draughon v. State, 831 S.W.2d 331, 333 (Tex. Crim. App. 1992).

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incredible and rejecting the ineffective assistance of trial counsel
claim. The CCA in turn adopted the prosecutor-authored findings
and denied relief.131
However, the federal district court found deficient
representation and granted both guilt- and penalty-phase relief,
holding that the state courts’ decision that Draughon received
effective assistance was an unreasonable application of federal
law.132 In its opinion affirming the district court decision, the Fifth
Circuit noted:
[T]he crux [of the district court’s holding] was that . . . the
[ballistics] evidence [offered in post-conviction] should have
been presented in the state trial. The court found that had
this evidence been adduced at trial, it would have directly
confronted the state’s core theory. . . [and] the state court’s
rejection of the Strickland claim was an unreasonable
application of federal law.133
The Fifth Circuit agreed that there existed a “reasonable
probability of a different outcome” had his trial counsel properly
investigated the merits of Draughon’s claim.134 Not only did the
federal courts find the state court’s decision that trial counsel was
effective to be unreasonable, but also that the facts developed at
the federal evidentiary hearing directly contradicted the findings
written by Harris County prosecutors and rubber-stamped by the
trial court and accepted by the CCA.
VI.

FACTORS CONTRIBUTING TO THE RUBBER-STAMPING
PHENOMENON

The widespread practice in Harris County of rubber-stamping
state-proposed findings results from a myriad of factors. State trial
courts lack the resources of state appellate and federal courts and
are ill-equipped to independently produce lengthy orders
containing independent findings. Such resource deficiencies were
likely exacerbated by the sheer volume of capital cases that moved
through the Harris County courts from the late 1980s onward.
Additionally, locating non-record fact finding in the court of
conviction undermines independent decision-making. Although
this practice is designed for efficiency (the trial judge is already
familiar with many of the details of the case), it creates a problem
131.
Order, Ex parte Draughon, No. WR-27,511–02, at 2 (Tex. Crim. App. May 9, 2001)
(per curiam).
132. Draughon v. Dretke, 427 F.3d 286, 295–98 (5th Cir. 2005).
133. Id. at 294.
134. Id. at 297.

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of dissonance: a trial judge who has presided over a capital trial
yielding a conviction and death sentence is invested in the
underlying fairness and accuracy of that result. The selection of
state trial judges in Texas—through partisan elections—also
places pressures on those judges to err on the side of the
prosecution, contributing to the rubber-stamping phenomenon.
Moreover, the common career trajectory of state trial judges in
Harris County—moving from the District Attorney’s office to the
bench—creates an unseemly collaborative ethos between judges
and prosecutors, as reflected in a number of the cases discussed
above.
A. Resources
Trial judges in Harris County, unlike judges on the CCA or in
federal court, do not have law clerks to assist in preparing lengthy
opinions or orders. In most litigation, this deficiency is not
significant, as many trial orders are short or issued from the
bench. In capital habeas litigation, though, the number and
complexity of issues (both factual and legal) make it exceedingly
difficult for judges to independently produce lengthy, detailed, and
independent findings. The temptation to simply sign proposed
findings in this context is very strong, as is borne out by the
astonishing rate of rubber-stamped orders. The frequency of
rubber-stamping in Harris County was likely compounded by the
unprecedented volume of capital cases moving into state habeas
beginning in the 1990s and continuing through the first decade of
the twenty-first century: Harris County sent more than 50
inmates to death row in the five-year period 1999–2003 alone,
which amounts to more inmates than the entire state of Texas has
sent to death row over the past seven years.135 In many
jurisdictions, state trial judges will rarely see multiple capital
post-conviction applications. In Harris County, multiple
applications were the norm, putting additional pressure on judges
already managing high volume dockets.
B. Locating Post-Conviction Review in the Court of
Conviction
Many jurisdictions, like Texas, locate post-conviction review in
the court of conviction.136 This choice is premised on the efficiency
gains associated with giving decision-making authority to a trial
135.
136.

FAIR PUNISHMENT PROJECT, supra note 20, at 47–48.
King, supra note 9, at 220.

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judge familiar with the underlying pre-trial proceedings and trial.
But there are real costs to allocating jurisdiction in this way:
asking trial judges to pass on the fairness and accuracy of trials
over which they presided creates a problem of dissonance. Judges
who have expended hundreds of hours of court time and likely
hundreds of thousands of dollars of county resources are often
understandably hesitant to find reversible error necessitating a
new trial. Moreover, in some cases the errors complained of on
state post-conviction are errors that the trial judge might have
avoided with better oversight, such as the failure of trial counsel
to present any mitigating case at punishment. The purported
efficiency gains of the practice are also overstated. The central
purpose of state post-conviction is to uncover and examine facts
outside of the trial record. The trial judge is often in no better
position to assess the persuasiveness of such claims than a judge
with no exposure to the original trial. The role of dissonance in
producing rubber-stamped orders is confirmed in part by the much
higher rate at which relief is recommended by trial courts in cases
where the Harris County judge assigned to the post-conviction
proceeding had not presided over trial.137
C. Trial Judge Selection
State trial judges in Texas are selected through partisan
elections and there is no retention mechanism other than to stand
for re-election. This level of popular control creates obvious
disincentives against granting relief in post-conviction. Judges are
justifiably concerned that a grant of relief will be used against
them in subsequent elections. Moreover, given that the postconviction judge presided over trial, a decision to grant relief is an
acknowledgement that the judge somehow “allowed” the original
trial to be defective. Many Texas trial judges campaign on “toughon-crime” platforms, and some have even gone so far as to take
credit for capital convictions obtained in their courtroom.138

137. See, e.g., Ex parte Brown, No. WR-26,178–03, 2017 WL 4675396, at *12 (Tex. Crim.
App. Oct. 18, 2017); Ex parte Cathey, 451 S.W.3d at 4–6; Ex parte Maldonado, No. WR—
51,612—02, 2013 WL 2368771, at *1 (Tex. Crim. App. May 22, 2013); Ex parte Sheppard,
No. WR—78, 132—01, 2013 WL 5568434, at *1–2 (Tex. Crim. App. Oct. 9, 2013).
138.
Jordan M. Steiker, Penry v. Lynaugh: The Hazards of Predicting the Future, in
DEATH PENALTY STORIES 277, 316 (John H. Blume & Jordan M. Steiker eds., 2009) (quoting
from the campaign reelection literature of former Judge Elizabeth Coker who, distributed
materials declaring, “[c]riminals fear walking into Judge Coker’s courtroom because they
know her reputation for handing down tough sentences. When the John Paul Penry capital
murder trial came before her court in 2002, Judge Coker cleared the way for the jury to
issue a death sentence.”).

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The politicization of the judicial function is compounded by the
informal career track of state trial judges in Harris County, which
sees many prosecutors in the district attorney’s office running for
and then occupying seats on the bench.139 The presence of former
prosecutors on the bench contributes to some of the informality in
communications between prosecutors and judges seen in some of
the cases discussed above. The frequent movement of former
prosecutors to Harris County trial courts likely increases the
dynamic of rubber-stamping findings. Prosecutors who have
participated in the practice of drafting proposed findings (and who
have become accustomed to the rubber-stamped acceptance of
those findings in state post-conviction) are likely less inclined to
reflect upon and reject that practice when they join the bench.
D. No Consequences for Trial Courts’ Rubber-Stamping
Approach
Though a variety of institutional, historical, and structural
circumstances have contributed to the prevailing rubber-stamping
practice, the most likely explanation for the sustained embrace of
the practice in Harris County is the willingness of the CCA and
federal courts to accept fact findings generated in such a fashion.
The CCA is no doubt aware of the ubiquity of rubber-stamping and
yet affords deference to such findings in the same manner as those
produced after more extensive, independent proceedings
(evidentiary hearings followed by independent court-drafted
orders). Similarly, federal courts within the Court of Appeals for
the Fifth Circuit routinely defer to fact findings contained in
rubber-stamped state-proposed orders, insisting such deference is
mandated by the federal habeas statute. So long as rubberstamping continues to receive the imprimatur of the CCA and the
federal courts, state post-conviction judges have little incentive to
abandon the practice.
VII.

RESPONSES TO RUBBER-STAMPING

There are several possible state-level responses to the postconviction rubber-stamping phenomenon in Harris County. State
statutory law could be amended to require post-conviction courts
to make independent findings and to prohibit wholesale adoption
of proposed findings. The CCA could exercise its
139.
See supra note 87 and accompanying text. At least 37 of 47 judges (80%) who
signed findings of fact and conclusions of law encompassed in this study were formerly
employed by the Harris County District Attorney’s office; several of the judges who were
not previous employees were visiting judges without a regular Harris County docket.

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supervisory authority to discourage the practice by remanding
cases involving rubber-stamped findings for further consideration.
Finally, Texas could choose to eliminate the state post-conviction
forum in capital cases, channeling post-conviction claims directly
to federal court.
Each of these potential responses has strengths and
weaknesses. Amending 11.071 section 9 to require “independent”
findings and to discourage wholesale adoption of one party’s
proposed findings might send a sufficient signal to trial courts to
improve their practices. But the requirement of “independent”
findings would be illusory if trial judges maintain their prevailing
practice of resolving factual disputes without hearings and
without any genuine adversarial engagement. Courts could
essentially continue on their current course by merely tinkering
with state-proposed findings and passing them off as their own (as
was done by trial judges in some of the cases described above).
Moreover, if the lack of resources is a strong contributing factor to
the problem, mandating independent findings would not be
enough: funds would need to be allocated to facilitate robust,
independent review in state post-conviction.
The CCA is in a comparatively better position than the
legislature to end the prevailing undesirable practice. Because the
CCA is ultimately responsible for disposing of post-conviction
writs, it can communicate clearly and frequently what it expects
in terms of trial court fact finding and decision-making. The failure
of the CCA to do so thus far reflects some of the same problems
contributing to rubber-stamping approach at the trial court level.
CCA judges are selected in partisan elections and
disproportionately possess prosecutorial backgrounds. Texas is
one of only two states in the country with a separate high criminal
court; the separation of criminal and civil courts at the top of state
justice systems, especially when combined with partisan elections,
amplifies the pressure on judges to favor prosecution over
defendant interests in the run of cases. No one runs for statewide
judicial office on the platform of increasing protection for criminal
defendants. These pressures notwithstanding, the CCA could
enhance the reliability of capital proceedings by insisting postconviction courts engage in their own fact-finding.
Alternatively, Texas could forego capital state postconviction proceedings altogether. Where states fail to afford
death-sentenced inmates a forum for litigating their non-record
claims, inmates can bring such claims directly to federal court; in
such circumstances, federal district courts are authorized to hold
evidentiary hearings on contested issues of fact and to decide those

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factual disputes de novo. This approach would be preferable to the
status quo. Instead of having two sets of courts expend resources
litigating federal constitutional claims—and having neither of
those courts engage the underlying facts in a meaningful and
reliable way—the elimination of state post-conviction would
ensure one real opportunity for federal constitutional norm
enforcement.
Absent corrective action by the state, federal courts should
refuse to embrace rubber-stamped findings. Under prevailing
federal habeas law, habeas relief cannot be granted on
constitutional claims “adjudicated on the merits in State court”
unless the state court adjudication involved unreasonable legal or
factual determinations.140 As a threshold matter, although federal
courts typically regard a state court order denying relief on a
prisoner’s claims as an “adjudication on the merits,”141 the
presumption is rebuttable.142 Federal courts faced with rubberstamped findings should look closely to see whether the state court
engaged in genuine fact-finding. When a rubber-stamped order is
accompanied by other indicia that the trial judge did not attempt
to engage contested issues of fact, a federal habeas court should
not indulge the fiction of an “adjudication.”
Prevailing doctrine treats the question of “[w]hether a
claim has been adjudicated on the merits [as] a case-specific
inquiry.”143 An “adjudication on the merits” in the federal habeas
context requires that a court has “heard and evaluated the
evidence and the parties’ substantive arguments.”144 Federal
habeas courts accordingly have declined to consider a state court
process “an adjudication on the merits” when, for example, state
courts failed to allow appropriate development of the record with
adequate safeguards.145 In our view, among the considerations a
federal habeas court should consider in assessing whether the
state court factfinding process qualifies as an “adjudication on the
merits” are whether:
140. 28 U.S.C. § 2254(d) (2012).
141.
Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”).
142.
Id.
143.
Winston v. Pearson (Winston II), 683 F.3d 489, 496 (4th Cir. 2012).
144.
Johnson v. Williams, 568 U.S. 289, 302 (2013) (emphasis in the original).
145.
Winston, 683 F.3d. at 502; see also Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir.
2015) (“A claim is not ‘adjudicated on the merits’ when the state court makes its decision
‘on a materially incomplete record,’ . . . [a] record may be materially incomplete ‘when a
state court unreasonably refuses to permit further development of the facts’ of a claim.”)
(quoting Winston II, 683 F.3d at 496).

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The trial court relied exclusively on the
prosecution’s evidence, without any indications that
the state court engaged the prisoner’s evidence and
arguments;
• The trial court relied on evidence not in the record
and available only to the prosecution;
• The trial court unreasonably refused to permit
necessary fact development;
• The trial court only acknowledged and ruled on
motions filed by the prosecution;
• The trial court signed the prosecution’s proposed
findings so soon after their submission such that it
could not have ascertained whether they were
accurate and supported by the record;
• The rubber-stamped findings include basic errors—
such as obvious typographical errors and
misspellings—that make clear that the state court
failed to review, much less evaluate, the state’s
order before signing it;
• The trial court signed the prosecution’s proposed
findings before the petitioner’s were filed and
available for review, suggesting a complete
breakdown of the adversarial process;
• The presence of ex parte contacts between the court
and prosecution in the process of rubber-stamping
the state’s order;
• A trial court’s repeated practice of signing stateproposed findings verbatim;
• The prosecution-submitted findings include obvious
errors that cannot be squared with the evidence or
the record before the state court.
This is not an exhaustive list of factors suggesting a breakdown in
the adversarial process, but they are all factors we observed during
our review of Harris County cases. Other circumstances might
likewise suggest the state court process should not be deemed “an
adjudication on the merits.”
Second, even where the state court proceeding qualifies as
an adjudication on the merits, the federal habeas statute
authorizes relief for state prisoners where a state court decision is
“based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”146 The
Supreme Court has suggested that a state court determination is
•

146.

28 U.S.C. §2254(d)(2) (2012).

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unreasonable not merely when it is wrong or lacks support, but
also when an inmate makes a significant factual showing and the
procedure used by the state to arrive at its resolution is deeply
flawed.147 Lower courts and commentators also agree.148 Rubberstamping, in combination with some of the above enumerated
circumstances—or others that may arise in a particular case, may
qualify as a procedurally unreasonable determination of fact under
§ 2254(d)(2).
The refusal of a state post-conviction court to provide
adequate procedure and consideration when a petitioner’s claim
raises important issues of contested fact, followed by a rubberstamped order embracing prosecution proposed-findings, negates
the application of § 2254(d). Restrictions on federal habeas relief
should be reserved for cases in which the state court provides an
inmate with a meaningful opportunity to be heard and issues an
independent decision.
VIII.

CONCLUSION

Texas has been the unquestioned leader of the American
death penalty in the modern era, accounting for over a third of the
executions nationwide since executions resumed in 1977.149
147.
See, e.g., Brumfield v. Cain, 135 S. Ct. 2269, 2282–83 (2015) (holding that the
failure of state court to hold evidentiary hearing to resolve contested fact issue regarding
petitioner’s claim of intellectual disability enabled petitioner to overcome § 2254(d)(2)
barrier to merits consideration of his claim).
148.
See Milke v. Ryan, 711 F.3d 998, 1007 (9th Cir. 2013) (“[U]nreasonable
determinations ‘come in several flavors,’ one of them being ‘where the fact-finding process
itself is defective.’”) (quoting Taylor v. Maddox, 366 F.3d 992, 1000–01 (9th Cir. 2004));
Moore v. Hardee, 723 F.3d 488, 499 (4th Cir. 2013) (““[W]here the state court has before it,
yet apparently ignores, evidence that supports [the] petitioner’s claim,” the state court factfinding process is defective.”) (quoting Taylor, 366 F.3d at 1001); Simmons v. Beard, 590
F.3d 223, 237 (3d Cir. Pa. 2009) (“A state court’s fact-finding may qualify as unreasonable
where ‘the state court . . . had before it, and apparently ignored,’ evidence supporting the
habeas petitioner’s claim.”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 346 (2003)); Byrd
v. Workman, 645 F.3d 1159, 1171–72 (10th Cir. 2011) (“[W]here the state courts plainly
misapprehend or misstate the record in making their findings, and the misapprehension
goes to a material factual issue that is central to petitioner’s claim, that misapprehension
can fatally undermine the fact-finding process, rendering the resulting factual finding
unreasonable”) (quoting Taylor, 366 F.3d at 1001) (internal quotations omitted); Norton v.
Spencer, 351 F.3d 1, 7 (1st Cir. Mass. 2003) (circumstances suggesting the state court failed
to actually review evidence it subsequently deemed credible “is an unreasonable
determination of the facts.”). See also Hertz & Liebman, FEDERAL HABEAS CORPUS
PRACTICE AND PROCEDURE, § 20.2[c] n.87 (7th Ed.) (“The word ‘determination’ in section
2254(d)(2) has two meanings in common parlance—the process by which a decision is
reached, and the substance of the decision that is reached . . . Section 2254(d) appears to
use the word in both senses.”).
149.
See DEATH PENALTY INFO. CTR., FACTS ABOUT THE DEATH PENALTY 3,
https://deathpenaltyinfo.org/documents/FactSheet.pdf [https://perma.cc/WSK4-KVSN] (last
updated Feb. 23, 2018).

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And Harris County has been the unquestioned leader of the Texas
death penalty, with more executions than any State during this
period (other than Texas itself).150 An important, and troubling,
contributing factor to this success has been the failure of Harris
County courts to rigorously and impartially enforce constitutional
norms in state post-conviction proceedings. The types of claims
raised in these proceedings go to the heart of the fairness of the
Texas capital system. It is the sole forum available to challenge
ineffective representation at trial and prosecutorial misconduct,
among other significant claims.
Despite statutory authority to conduct hearings regarding
contested facts, Harris County courts have chosen not to exercise
this power. Instead, in the vast majority of cases, Harris County
courts have simply signed off on prosecution-authored findings,
without regard to whether they comport with the facts on the
ground. It is one thing to side with the prosecution in case after
case, it is quite another to brazenly conclude, without the benefit
of live testimony, that every single assertion by the state is true
and every assertion by a petitioner is false. Close examination of
post-conviction litigation in Harris County reveals the process to
be even worse, with trial judges signing lengthy prosecutiondrafted orders within hours of their receipt, without the benefit of
petitioner submissions, with manifest errors, and, in a particular
extreme example, in a case assigned to a different judge.
The failure of Harris County courts to take their role seriously
has gone unchallenged by the Texas Court of Criminal Appeals,
which itself has routinely rubber stamped the trial courts’ rubberstamped recommendations. Federal courts, in turn, have afforded
deference to the fact findings produced in this strikingly nonadversarial fashion.
The overall effect of prevailing practice is to legitimate a
manifestly malfunctioning system. Prior to the modern era, deathsentenced inmates had few constitutional protections and few
mechanisms for their enforcement. Today, it is widely known that
death-sentenced inmates have important constitutional rights and
several layers of review to secure those rights. Less well known is
the extent to which those rights and mechanisms of review have
become an empty formality, in which courts have
150.
DEATH PENALTY INFO. CTR., Top 15 Counties by Execution Since 1976: As of
1/1/2013, https://deathpenaltyinfo.org/executions-county#overall (last accessed Feb. 23,
2018) (From 1976 through Jan. 1, 2013, Harris County accounted for 116 executions); cf.
DEATH PENALTY INFO. CTR., supra note 149, at 3 (showing that Virginia, the second-leading
state after Texas, has executed 113 individuals since 1977).

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outsourced their responsibility to the prosecution. Rather than
enhancing the reliability of the capital system, post-conviction
litigation in Harris County has become an unfortunate obstacle to
constitutional norm enforcement, a black eye for the most active
death penalty county in the most active death penalty state.

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APPENDIX 1
COMPLETE SETS CHART

[55:4

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State?s Trial Total State?s

Applicant CCAW 'tN dt? Proposed Court's .3315?? Trial Proposed

'1 ?0mm" 3 "m a 935 3:2: 01 Adopted

Date Signed FOFCL Verbatim
1 Matti/122, Raymond Deny Unknown 7/9/1999 41 41 41
2 Demo/Gregory Deny Acaa Unknown 5/13/2002 58 58 38
3 Draugnoan/artin WR-21511-02 Deny Acaa Unknown 6/28/2000 161 161 161
4 Smith,1r., Clyde 1110-4513001 Deny Acaa 8/10/1995 4/21/1999 29 29 29
Thacker,Charles Deny Ataa Unknown 7/11/2000 54 54 54
6 Estraca,Larry WR-53.499-01 Deny Anderson 8/16/2002 8/26/2002 32 32 32
FLer?tes,Anthony Deny Anderson Unknown 146 146 14-6
8 Gates, Bill Deny Anderson 3/18/2008 3/19/2008 105 105 105
9 Green, Dommaue Deny Anderson 2/22/2000 2/25/2000 194 194 1.94
10 M00dy.Stephen Deny Anderson 8/11/1999 3/19/1999 64 64 64
11 Madonadong?Ho WR-51.612-01 Deny Bacon Unknown 7/11/2001 40 40 40
12 Matamorus,Johr 1012-5099102 Deny Bacon 12/15/2005 12/18/2006 159 159 159
13 RicnardJMichae Deny Bacon 12/2/2006 12/28/2006 143 143 143
14 Deny Bar' 6/23/2006 8/12/2006 122 122 122
15 Gallo,Tomas 1014740339701 Deny Bar' 6/18/2012 6/25?2012 206 206 206
16 HarperJ Garlanc Deny Bar? 11/25/2014 12/11/2014 315 315 315
17 Rickarc,Mich5el Deny Bar' 2/29/2000 11/2/2000 42 42 42
18 Slater, Paul Deny Bond 10/1/2012 2/13/2014 191I 202 200
19 Slater, Paul Deny Bond 10/9/2019 3/5/2015 201 202 200
20 1011-7802801 Deny Bradley 10/8/2012 10/9/2012 92 92 92
21 Cuhas.Edgarco Deny B?idgewa?te? 11/7/2008 11/13/2008 135 135 135
22 Tong, Chuong Deny Bndgewa?te' 5/20/2003 11/10/2008 20E: 205 206
23 Deny Brown,? 3/5/2012 3/30/2012 142 142 142
24 Butler, Deny Brown, 5. 3/5/2007 1/5 125 175
25 Butler, Steven Deny Brown,S. 2/10/1999 3/12/1999 30 30 3D
26 Butler, Deny Brown, 5. 2/20/2012 2/28/2012 183 133 183
27 Butler,Steven Deny Brown, 5. Unknown 12/2/1993 28 28 23
23 Garcia.Juan Deny Brown, 5. 2/27/2007 3/5/2007 133 133 133
29 Martinez, Alexancer D'smias Brown,S. Unknown 3/31/2005 10 10 10
30 McCoskey,Jannie Deny Brown,5. 12/21/2005 1/25/2002 131 131 131
31 McCoskeyJann'le Deny Brown,5. 4/15/2008 6/23/2008 161 161 161
32 M0015,Bobby Grant? Bruwn,5. 1/23/2014 2/6/2014 544 577 409
55 RodriguezLior?ell Deny Brown, 5. Unknown 10/0/2001 15: 151 15/
34 Rousseau, Aribal Deny Brown,5. Unknown 10/5/1999 13 13 13
35 SheppardEr/ca 1110-1513201 Gram? Brown.S. 10/4/2011 3/24/2012 240 244 230
95 Washingtonwulie 1011-5210-0203 Deny Brown,S 9/25/2005 9/25/2005 55 55 55
37 Will, l,Roben 1012-5359001 Deny Brown.5. 9/1/2005 11/15/2005 25 25 25
38 Robert Will-63,5900} Deny Bmwn,5. 12/31/2014 1/26/2015 120 120 120
39 Deny BrownM. 12/15/2010 1/14/2011 222 222 227
40 Deny Berette 4/24/2002 6/21/2002 8? 8?
41 Roger Deny Can'pbeIIJC. 5/25/2006 5/19/2006 66 66 66
42 1051550101 WR-62.589-03 Deny (lambs/LL 2/20/2001 12/18/2001 29 1'9 29
43 Deny Carrabe/IJA 1/15/2003 2/5/2005 106 106 106
44 Raby, Charles Deny Carrabo/IJ. Unknown 11/14/2000 44 44 44
45 Ripkowskie-tt Deny Carrabem. 12/9/2005 5/2/2005 92 93 93
46 Williams, Nanor 1014746336702 Gram" CarrabeH.J. Unknown 5/3/2001 221 201 113
47 1014-5333602 Deny Carter Unknown 10/10/2006 27 27 27

 

 

 

2018]

CAPITAL HABEAS PROCEEDINGS

983

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State?s Trial Total State?s

A licant CCA 't cl Proposed Court's Stat: Trial Proposed

pp a m" a ge FOFCL rile FOFCL 31$: Ct Adopied

Date Signed FOFCL Verbatim
Mason, William 02, 03 Deny Carter 1012512005 1212812009 92 92 92
Mason, William 11916397 Review- Carter 1011512012 111612012 43 43 43
Medina, Anthony Deny Caner 4125/2003 512512009 254 254 254
Rivers, Warrer MFR-5360802 Deny Carter 1211512006 11312002 91 91 91
Rivers, Warrer' Deny Carter 511812001r 512212007 145 146 145
Wesbrom, Coy Deny Carter 112412007 112612007 119 119 119
Wesbrom, Coy Deny Carter 612112014 91512014 158 158 158
BJck, Ddane Deny Col ins 211112003 112512003 33 33 33
Johnson, Dexter Deny Col ins 2124/2010 2124/2010 61 51 51
Non no, Eric MFR-50.59801 Deny Col ins Unknown 9121/2001 12 12 12
Smitl", Roy Deny Col ins Unknown 8124/1999 42 42 42
Villanueva, Jorge Deny Col ins Unknown 5111/2001 149 149 149
Williams, Arthur 02 Deny Col ins 61112010 613012010 49 49 49
Francois, Ar?thony MIR-7134501 Deny Cosper 1211512008 1213012008 30 30 30
McCullum, Demarco MFR-5264201 Deny Casper Unknown 5129/2002 32 32 32
Medellin, lose Deny Cosper Unknown 1122/2001 81 31 31
Morris, Kenneth Deny Cosoer Unknown 912811999 106 106 106
W'litaker, II, George Deny Cosper 811912002 1111812002 108 108 108
Woodard, Robert DIR-46.50102 Deny Cosper 811412006 911912006 143 143 145
Ca?ty, Lnda Deny Davies 111112004 121212004 93 93 93
Jackson, Donell WR-52-532-01 Deny Davies 312512002 511512002 45 45 45
w? Il'arns, Jeffrey 0-5 0,662-01 Deny Davies Unmown 2120/2 003 75 75 75
Janecka, Aller? 1992491602 Deny Densen 911311999 911311999 29 29 29
Aller. Kerry Deny El is 412512008 311212009 126 126 126
B'ble, Danny WR 75,122.01 Deny El is 3130/2009 6124/2011 12? 12? 122
B'own, A fee Grant El is 3/22/2013 5/23/2013 40 40 4o
Browr, Arthur Deny El is 613012006 86 86 86
Elizalde, Jr., Jaime Deny El is Unknown 3191200] 56 56 56
Joubert, Elijah Deny El is 41812015 411812013 150 150 130
Norris. Michael MFR-7263502 Deny El is 111812012 812212012 108 108 106
Plata, Daniel Grant El is 81912001 912812007 115 28? 115
Plats, Daniel Deny El is Unknown 612112000 43 43 4B
Prible, 0., Ronald Deny El is 11412003 112512003 75 16 25
Smiti?. Robert Deny El is 1211111998 311111998 123 123 123
Smith. Robert MFR-40.81402 Grant El is 211012004 2110/2004 13 15 13
Ihonnpson, Roben Deny El Is Unknown 112512005 16 16 16
Ha miltor, Ronald Deny Evans 811212014 1112512014 116 116 116
Marshall, Gerald 03 Deny Evans 3118/2014 1118/2014 92 92 92
L'nda WR-GLOSS-DZ Deny Garner 812912016 91112016 191 140 91
Alix, Frarklin Deny Godwin Unknown 1018/2001 59 59 59
Clay, Keith Deny Godwin Unknown 1011311999 25 25 25
Conner, Joi?nny Deny Godwin Unknown 8116/2001 20 20 20
lnghes, Prestor Deny Godwin Unknown 5119/2000 155 155 155
MtFa' and, George Deny Godwin 101112003 61812004 115 113 113
Pie 'ce, Anthony Deny Godwin 1211/2005 111212007 104 104 104
Va le, Yosvanis 0102-6106301 Deny Godwin 91112005 911312005 13 13 13
Williams, Richard Deny Godwin Unknown 1011311999 93 93 93

 

 

 

 

 

 

 

 

 

 

934

HOUSTON LAWREVIEW

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State's Trial Total State's

Proposed Court?s Total State Trial Proposed

Applicant CCA Writ No. Recommendation Habeas Judge OF Cl File 0F CL Ci Adopted

Date Signed FOFCL Verbatim
95 Batiste, Tedcerick Dew Guerrero 1205,0014 1/2112015 211 211 211
96 Mamou, Jr Charles 03 Dew Guiney 111522013 11/13r'2013 55 55 55
92 Rhoaoes, Rick DewI Guiney 101'2622013 5f2112014 228 232 223
98 Sales, Tarus Dew Guinev 51112013 81?151'2014 180 180 180
95" Cantu, Peter 1410-6533401 Dew Harmon 111'29/2003 00 80 B0
100 Capetiilo, Edward Dew Harmon U1k1ow?. 3/]512001 M. 44 
101 Ecridge?era?d Dew Harmon 9/14/2004 90412004 2? 77 76
102 Jackson, James Dew Harmon 2/2112002 6f2012002 36 36 36
103 Matchett, Farley Dew Harmon U1k10w?. 92 92 92
104 Nelsm, Marin Dew Harmon Unmowo M2002 111 111 111
105 Nicl?ois.loseph Dew Harmon U1k10w-1 4/91'2001 122 117 112
106 Resendiz, Angel WR Dew Harmon 111512004- 1/21/2004 23 23 23
107 Rocha, Felix 1013-5251301 Dew Har'non 1012102001 111112001 57 57 62
103 Williams, Perri; Dew Harmon 8/2512005 42 42 42
109 Cole, Jaime Dew Hart 6f3f2016 6/1412016 141 141 14-1
110 Davis, Briar Dew Hart 3225/2005 71'25/2005 141 159 133
111 Davis, Briar 100403390108 Dew Hart 2f12/?2015 11712016 233 233 233
112 Fratta, Robert Dew Hart 111'18/2013 1211312013 160 160 160
113 Jackson, Christopler Dew Han 522412013 121212013 193 193 193
114 lea n, Joseph Dew Har?l 7112112016 325 326 326
115 Ayestas,Carlos Dew 10112003 2/1812008 113 113 113
116 Davis, Briar Dew i'ill 2f3f1999 34/1999 15 15 15
117 Duncan, Richarc Dew i'ill U1k1owo 171322000 102 102 102
118 Fratta, Robert Dew Fill 33112004- 6f2912004 12B 120 128
119 Guidry, Howard 100-414-1702 Dew 7220/2011 3/14/2012 180 180 180
120 Guldry, Howard Dew U1l<1owo 7/1412000 90 90 90
121 Hunter, Calvir? WR-69.291-01 Dew l-ill 1/141'2008 9? 97 92
122 Jackson, Derrick WR-60.124-01 Dew i'ill 7161,2004 91112004 24- 74- 7'4
123 Ogan, Craig DewI i-ill 21'4f'1999 31121999 57 57 52
124 Dew l-ill 11,1'17r'2003 2(2512004 84 84 84
125 Dew i?ill 121212011 9/2512012 125 125 125
126 Rosales, Mariano 1013?1010003 Dew i-ill 313112002 6/512002 49 49 119
12? Rowell, Robert Dew l-ill U1l<10w1 5f291'2002 59 59 59
123 Smith,lack WR-3.315-07 Dew i?ill 10f14r'2011 12123112012 114 114 114-
129 Wilson, Geno 1013-5154301 Dew i-ill U'ik'iown 3/2512003 101 101 101
130 Johnson, Lonnle Dew HL?rran 21512002 5f2212003 65? 69 69
131 Sl?ore, Anthony WR-TB.133-01 Dew Jackson 91'41?2012 9111112012 168 160 168
132 Alexancer, Grant Jones 7/28/2011 5/4/2012 138 67 0
133 Maldoraao, Virgilio Grant Jones 1130/2012 12/1212012 151 195 0
134 Basso, Suzarne Dew Keel 9f27f2005 11128112003 12? 121' 121II
135 Campbell, Robert Dew Keel U?k?ow-?t 11/11r'1999 44- 44- 44
136 Escobedo,loel Dew Keel urn/2006 31912007 113 113 113
137 E5cobed0,loe  141135631302 Dew Keel 4,1?1f2008 101?28/2008 112 112 112
138 E5cobedo,loel WR-56.81B-01 Dew Keel 8/2122012 9f26J'2012 12? 12? 127Ir
139 Griffith, Michael Dew Keel 131412003 7(2312003 14 14 14
140 Soffar, Max lam-2938003 Dew Keel 1211012011 1510012 315 315 315
14-1 Bernardo 1006259301 Dew Keel 121112004- 6/1012005 53 53 53

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2018] CAPITAL HABEAS PROCEEDINGS 935

State's Trial Total S1ate'5

A Iicant CC AWI ll Proposed Court?s Trial Proposed

"p mm? 3 3 e? ?e FOFCL 1:36:61? c: Adopted

Date Signed FOFCL Verbatim
142 Charles, Derrick Deny Krocke? 4/25/2007 152 152 152
143 Goynes,Theodore Dism'ss Krocke? 3/22/2011 9/30/2011 14 14 14
144 Guynes,Theodore Deny krocker Unknown 5/6/2002 92 92 92
145 Martinez, Raymond Deny Krotke' 10/1/2012 10/4/2012 08 38 88
145 O'Brier, Derrick 010.51.254.01 Deny krocker 11/9/2001 11/13/2001 104 104 104
141I Sorto, Walter WR-71I.381-01 Deny Krocker 12/19/2008 12/29/2008 64 64 64
143 Cruz-Garcia, Ubei Deny Magee 12/21/2016 12/29/2016 192 192 192
149 Freeney, Ray Wit-18,1090] Deny Magee Unknown 12/10/13 65 63 68
130 Brenton, Eugene Deny McSpadden 2/28/2009 2/31/2009 110 110 110
151 Brox'tonlugere Deny MoSpadden Unknown 9/3/1999 71 21 71
152 Coieman,Christopher Deny MoSpadden Unknown 11/7/2000 92 92 97
153 Cotton, M31005 Deny Mos/Jadden Unknown 4/12/2000? 83 33 83
154 Green, Travis Wit-4301902 Deny MESpadden 8/31/2012 9/12/2012 94 94 94
155 Kincy, Kevin MFR-50.26601 Deny MoSpadden 6/12/2000? 4/13/2001 99 99 99
156 Lancer, Mabry Deny MoSpadden 10/15/2014 2/12/2016 161 161 161
131? Pippin, Roy Wit-506130102 Deny McSpadden Unknown 9/26/2001 263 266 268
158 Tamayo, Edgar Deny MESpadden 2/22/2003 3/28/2003 126 126 126
159 Buntion, Cari Deny Viendoza 8/30/2016 12/28/2016 163 168 164
160 Wheatfall, Daryl Review Mendoza 2/9/2014 9/7/2014 49 49 49
161 Greer, Randoiph Wit-53,8360] Deny Poe 10/19/200111  0/2/2002 201 201 201
162 McWilIiams, Frederick Wit-4323201 Deny Poe Unknown 12/11/2000 43 43 43
163 Rivers, Warren Deny P00 8/12/2002 0/14/2002 163 163 163
164 Shannon, Wiliie elk-50,1110] Deny Poe Unknown 1/20/2001 45 45 45
165 Preuost,Jeffery 010.34,.05001 Deny Powel 12/22/2015 1/3/2011 243 243 243
166 inn-5120101 Deny Price 2/9/2001 9/13/2001 119 0 0
162I Carr, Darreil Grant Rains 12/22/2006 12/20/2006 42 42 42
163 Carr, Darreil Deny Rains Unknown 1/29/2003 05 33 85
169 Cathay, Eric Deny Rains 10/1/2002 1/29/2003 35 35 35
110 Masterson. Richard 1110-5948101 Deny Rains 1118/2009 3/13/2000 02 02 62
121 Mays. Rex Deny Rains Unknown 9/3/1999 33 33 33
172 Rachai. Rodney Deny Rains 7/23/2004 10/4/2004 47 47 4.7
123 Cathey, Eric G'anT? Reagin 2/21/2011 12/31/2012 363 215 0
174 Freeney, Ray hulk-73,1090] Deny Ritchie 11/28/2012 12/5/2012 133 133 183
125 Robert 111111-404320] Deny Robertson 12/14/1998 1/5/1999 111 111 111
176 Thompson, Charles Deny Snayer 2/7/2013 2/22/2013 166 166 166
177 Trottie, Willie Deny Snayer 146/2003 7/10/2008 92 92 92
123 Wesbrook, Coy Deny Snaver 3/4/2002 3/14/2002 122 122 122
129 Dudley, Marion -02 Deny Striokiin Unknown 1/28/2000 42 42 42
130 Guevara, Giimar Deny Strickiin 3/1/2005 1/19/2006 120 120 120
181 Matam0r05,10hr Deny Stricki?in 10/11/2001 11/1/2001 10? 101r 107
182 Ti?omas, Daniel Wit-15,1530? Deny Stricklin Unknown 9/3/2004 342 342 342
133 Ti?omas, Si?anron Deny Stricklin Unknown 5/22/2001 39 39 39
134 Alexander, Guy Wit-51.15001 Deny Thomas 4/14/2003 9/4/2003 94 94 94
185 AlvarezJuao Deny Thomas 2/7/2008 5/23/2008 92 92 92
186 VIE-64.36001 Deny T000135 9/15/2035 3/10/2006 51 51 51
131 Burton,Ar?ter Deny Thomas 12/5/2003 12/31/2009 41 41 41
133 Mattl'ews, Damon 1110-7591901 Deny Velasquez 1/31/2011 2/2/2011 106 106 106

 

 

 

 

 

 

 

 

 

 

 

 

936

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ouerrode recommendation

Trial courl made no recommendation

 

 

 

State?s Trlal Total State?s
. Proposed Court?s Total State Trial Proposed
Applicant CCA No. Recommendation Habeas Judge 0F CL File 0F CL "rigged Cl Adopted
Date Signed FOFCL Verbatim
189 Smith, Demetrius Wit-10.59301 Deny Vulaacuuz 113 113 113
190 Barnes, Reinaldo Milt-34.62102 Dew Wallace 8/15/2013 8/21/1013 1213 1'33 1'33
191 Anthony WIT-59.52901 Dc?w Wallace 8/3/2004 8/5/2004 50 50 50
192 Newton, Frances Wit-41.02301 Dc Wallace Unknown 6/5/2000 160 1w 1le
15'! Perez, Efrain Wit-45.61401 Deny Wallace Unknown 1126,1200] 28 28 28
194 ReynosaJLan WK 55,260.01 Extend' Wallace 51mm): h/afzuur 29 29 29
195 ReynosaJLan WR 56,2600] new Wallace 10f5f2006 10/11/2006 23 23 23
195 Smitl', Roosevelt WIT-7154601 Grant Wallace 4f10f2l312 29 29 29
197 Johnson, Johnrv Dew ZIIWZDUD 63 (fl 
198 Morrisl Lorenm Wit-43.13001 Deny Wilkinson unknown 4f11f2000 76 7f. 70
199 Bonnier, Derrick Wit-5123601 Deny Wilkinson 2131/2003 JIHJHUUH 33 38 38
TOTAL 21658 21454 205th?:

 

 

 

"Remanded to consider attorney abandonment/default, oourl recommended extending tiling period

937

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2018] CAPITAL HABEAS PROCEEDINGS
APPENDIX 2
CONTESTED CASES CHART

. State's Trial Court's Tcnal 5:22:12 cl

Applicant No. Recommendation HabeasJudge Proposed Propose Trial Adopted

FOFCL File Date Signed Verbatim
1 Adams,Timothy Deny Ban 612312006 811712006 122 122 122
2 Alexander?uy Deny Tnomas 411412003 91412003 94 94 94
3 WR-501786-01 Deny Godwin Unknown 101812001 59 59 59
4 l111173.586 01 Deny El's 4125112008 31212009 126 126 126
5 AlvarezJuan Deny Tnomas 21712008 512312008 92 92 92
6 Ayestas, Carlos 111969674701 Deny Hil 111712008 211812008 113 113 113
7 Basso,Suzanne Deny Keel 912712005 1112812005 127 127 127
8 Batiste?edde?ck Deny Guerrero 1211512014 112112015 211 211 211
9 Berna,Johnnie Deny Berette 412412002 612112002 87 87 87
10 Bible. Danny 141117612201 Deny El's 313012009 612412011 127 127 127
11 BrownA'thU' 1118726178702 Deny [I's 613012006 813112007 86 86 86
12 Eroxton, Eugene Deny McSpadden Unknown 91311999 71 71 71
13 Broxton, Eugene Deny McSpadden 712812009 713112009 110 110 110
14 Buck. Duane Deny Col'ns 711112003 712312003 33 33 33
15 Buntion,Car  WR 22,548 04 Deny Mendoza 813012016 1212812016 168 168 164
16 Burton,A'thU' Deny Tnomas 121512008 1213112008 47 47 47
17 BurtonA'thur Deny Tnomas 911512005 311012006 51 51 51
18 Butler, Steven Deny Brown?? Unknown 121211998 28 28 28
19 Butler, Steven Deny Browns. 211011999 311211999 39 so 30
20 Butlen Steven Deny Browns. 31512007 313012007 175 175 175
21 Butler?teven l11111-41921-02 Deny Brown,5. 212012012 212812012 183 183 183
22 Camobell,Rober1 1110-4455101 Deny Keel Unknown 1111111999 44 44 44
23 Cantu, Peter van-5533491 Deny Ha'rrlon 1112912903 61712006 so 90 en
24 Capet?illo, Edward Deny Ha'mon Unknown 311512001 44 44 44
25 Carr,Darrel  Deny Rains Unknown 112912003 85 85 85
26 Carry, Linda 01 Deny Davies 111112004 121212004 93 93 93
27 Cam], Linda Deny Garner 812912016 91112016 191 140 97
28 Cathey,Er'c Grant? Reagin 212112011 1213112012 363 215 0
29 Cathey,Er'c Deny Rains 101112002 112912003 35 35 35
30 Cha'les_. Derrick Deny Krocker 412312007 412512007 152 152 152
31 Clay, Keith WR-431906-01 Deny Godwin Unknown 1011311999 25 25 25
32 ColeJaime 191784322701 Deny Hart 61312016 611412016 141 141 141
33 Coleman?hristopher 1410-4852301 Deny McSpadden Unknown 111712000 97 97 97
34 Deny Godwin Unknown 811612001 20 20 20
35 Cotton, Marcus Deny McSpadden Unknown 411712000? 83 83 83
36 Coulson, Robert Deny Robertson 1211411998 11511999 111 111 111
37 Cruz-Garcia?bel Deny Magee 1212112016 1212912016 192 192 192
38 Cubas,Edgardn Deny Bridge-water 111712008 1111312008 135 135 135
39 Day's, Brian 111940339701 Deny Hil 21311999 21411999 15 15 15
an Day's, Brian Deny Hart 312512905 712512903 1:11 159 133
41 Dav's,Erian 08 Deny Hart 211212015 11712016 233 233 233
42 Denie'y,Greg0'y Deny Alcala Unknown 511312002 58 58 58
43 Deny Wallace 811912013 312112013 158 158 158
44 Draughon, Martin Deny Alcala Unknown 612812000 161 161 161
45 Dud ey,Mar'on 02 Deny Stricdln Unknown 712812000 42 42 42
46 Duncan} Rimard Deny Hil Unknown 711312000 102 102 102
47 Ed'idge,Gerad Deny Ha'mon 911412004 912412004 77 77 76
48 Eiza 11111748957701 Deny El's Unknown 31912001 56 56 56
49 EscoaedoJoe 1118-5681802 Deny Keel 41112008 1012812008 112 112 112

 

 

 

 

 

 

 

 

 

 

 

 

938 HOUSTON LAWREVIEW [55:4

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Slate?s Trial Cam's Fatal 1:16:6de

Applicant canrith. Recommendation Habeasludge Pmpesed Propose Trial Ct Adap?led

FOFCL File Date Slgned FDFEL FOFCL Verbatim
50 Escobedo,loel 11005681301 Deny Keel 1212112006 31912007 113 113 113
51 Escot-edu,loel WR-56.810-01 Deny Keel 812112012 912612012 12? 121 12?
52 Estradaylar'y Deny Awderson 811612002 812612002 32 32 32
53 Deny Cosper 1211512008 1213012008 30 30 30
54 Franz, Robert Deny Hill 313112004 612912004 126 128 128
55 Fratta, Robert WR-31.536-04 Deny Ha?t 1111812013 1211812013 160 160 160
56 Freeney, Ray 111018009 01 Deny Magee Unmoww 12110113 68 68 68
5? Freeney, Ray Deny Ritch'e 1112812012 121512012 188 186 188
56 Fuentes.Anthony WR-45.719-01 Deny Awderson Unmoww 51112000 146 146 146
59 Galle,Tomas Deny Barr 611812012 612512012 206 206 206
60 Garc'a..luan WR-67.096-01 Deny B'uwn.S. 212112001I 31512007 133 133 133
61 Gates, Bill Deny Awderson 311812008 311912008 105 105 105
62 Goynes,Theodore 111052481703 Dis'niss Krocker 812212011 313012011 14 14 14
63 Goynetheodore Deny Krocker Unmoww 51612002 92 92 92
64 Green.D0n1'nque Deny Awderson 212212000 212512000 194 194 194
65 Green,Trayis wR-48,019-02 Deny McSpadden 813112012 911212012 94 94 94
66 Greer, Rando:ph Deny Carter Unt'icwn 1011012006 27 27 27
67 Greer, Randaph 111953836701 Deny Poe 1011912000?) 81212002 207 207 207
68 WR-56.987-01 Deny Keel 111412003 712312003 14 14 14
69 Gueya'a,Gllmar Deny St?iclclin 81112005 111912006 120 120 120
3'0 Guidry, Howard Vim-4141101 Deny Hill Unmoww 111412000 90 90 90
71 Guidry?. Howard Deny 712812011 311412012 180 180 180
72 Hamilorl, Ronald Deny Evans 811212014 1112512014 116 116 116
73 Harper,Garland WR-SL516-01 Deny Barr 1112512014 1211112014 315 315 315
74 HaynesyAnthony Deny Wa lace 81312004 81512004 50 50 50
75 Hughes, Preston 990457876701 Deny Godw'n Unmoww 511912000 155 155 155
76 Hunter?avin Deny Hill 812012007 111412008 91' 97 97
77 I'ya'i,Wilian1 WR-75.420-01 Deny BrownyM. 1211512010 111412011 227 227 227
18 Jacksm, Christopher WR-18-121-01 Deny H31 612412013 121212013 193 193 193
79 Deny Hill 71612004 91112004 74 74 74
80 Jacksm?onel 1410527532701 Deny Dav?es 312512002 511512002 45 45 45
81 Jacksm,Jarnes WR-52.904-01 Deny Har'non 212112002 612012002 36 36 36
82 Janecka?len Deny Densen 911311999 911311999 29 29 29
83 Jeameseph Deny Ha?t 11812016 112112016 326 326 326
84 Jonnson,Dexter Deny Collins 212412010 212412010 61 61 61
85 WR-57.654-01 Deny W'IKinson 211612000 813012000 63 63 63
86 Jo1nson,Lonnie WR 56,197-01 Deny Huffman 21512002 512212003 69 69 69
81' Jones?heton Deny CampbelJ. 712012007 1211812007I 79 79 1'9
86 Jones?heten 9111762589701 Deny Campbell 1111512003 71512005 106 106 106
89 1016ert,Elijan Deny 41812013 411812013 130 130 130
90 Kincy,Keyl'1 Deny McSpadden 611212000? 411812001 99 99 99
91 Deny McSpadden 10115120121 211212016 161 161 151
92 Maldonado, 111051612702 Grant Jones 1113012012 1211212012 161 195 0
93 Maldonado, yi'gilio Deny Bacon Unmow'i 111112001 40 40 40
94 Marnou.lr.,Chares Deny GJiney 111612013 1111312013 55 55 55
95 Marshal,Gera?d Deny Evans 311812014 111812014 92 92 92
96 Mart?nez,Alexander Dis?niss B'own, S. Unnow1 313112005 10 10 10
91 Deny {illeg?ble} Unmoww "11911999 41 41 41
98 Mart'nez,Raymend l111042341703 Deny Krecker 101112012 101412012 38 38 88

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2018] CAPITAL HABEAS PROCEEDINGS 989

. State's Trial Court's Total ?53:21.23;

Recommendation HabeasJudge Proposed Proposed Trial :1 Adopted

FOFCL File Date Signed FOFCL Verbatim
99 Mason,Wil'am 02,03 Deny Carter 10/25/2005 12/28/2009 92 92 92
100 Masterson, Richard Deny Rains 2/18/2008 3/13/2008 62 62 62
101 Matamoros,lohn Deny St?lcklin 10/11/2001 11/1/2001 107 107 107
102 Matarnoros,lohn Deny Brown,M. 3/5/2012 3/30/2012 142 142 142
103 Matarnoros,10hn Deny Bacon 12/18/2006 12/18/2006 169 169 169
104 Matchett, Farley Deny Har'non Unknown 1/30/1999 92 92 92
105 Matthews, Damon Deny Velasquez 1/31/2011 2/2/2011 106 106 106
106 Mays, Rex Deny Rains Unknown 9/3/1999 33 33 33
107 McCoskey,Ja'nie Deny B'own,S. 12/21/2006 1/26/2007 131 131 131
108 McCoske-yJa?nie Deny B'own?. 4/15/2008 6/23/2008 161 161 161
109 01:60 lom, De'narco Deny Cosper Unknown 5/29/2002 32 32 32
110 McFarland,Ge0'ge Wit-5933701 Deny Godw'n 10/1/2003 6/8/2004 175 173 173
111 McGowen, Roger Deny Cannpbel, C. 5/25/2006 5/19/2006 66 66 66
112 0.1ch iams, Frederick 998748282701 Deny Poe Unknown 12/11/2000 43 43 43
113 Medelr?n,lose Wit-50.19101 Deny Cosper Unknown 1/22/2001 81 81 81
114 MedinaAnthony Wit-41.27402 Deny Carter 4/25/2008 5/26/2009 254 254 254
115 Moody, Stephen Deny Anderson 8/11/1999 8/19/1999 64 64 64
116 None Boboy Grant? B'own,S. 1/23/2014 2/6/2014 544 577 409
117 Morris, Kenneth Deny Cosper Unknown 9/28/1999 106 106 106
118 Morris, LU'enzo Deny W'lkinson Unknown 4/11/2000 76 76 76
119 helson, Marlin lull/8753148701 Deny Harmon Unknown 7/8/2002 111 111 111
120 henno, Eric 108750598701 Deny Collins Unknown 9/27/2001 12 12 12
121 hewtomFrances Deny Wa lace Unknown 6/5/2000 160 160 160
122 hicho s,lo5e:ih Deny Harnlon Unknown 4/9/2001 122 117 112
123 horris, M'chael Deny Ell?rs 1/18/2012 8/22/2012 108 108 108
124 O'Brien, Derr'ck Deny Krocker 11/9/2001 11/13/2001 104 104 104
125 Ugan, Craig Deny Hill 2/4/1999 3/11/1999 57 57 57
126 Pe'eLEf'ain Deny Wa lace Unknown 1/26/2001 28 28 28
127 Pierce/\ntlrony Deny Godw'n 12/1/2006 1/12/2007 104 104 104
128 Piapin, Roy 998750613701, 02 Deny McSpadden Unknown 9/26/2001 268 268 268
129 Plata, Daniel Deny Ellis Unknown 6/27/2000 48 48 48
130 Flat], Daniel Wit-46.74902 G'ant 3/9/2007 9/28/2007 175 287 175
131 Preyost, Jeffery Wit-84.06801 Deny Powell 12/22/2016 1/3/2017 243 243 243
132 Deny Ellis 1/4/2008 1/25/2008 76 76 76
133 Deny Hill 11/17/2003 2/25/2004 84 84 84
134 Deny Hill 12/2/2011 9/25/2012 125 125 125
135 Easy, Char es Deny Campbellyl. Unknown 11/14/2000 44 44 44
136 Racnal, Rodney 998760394701 Deny Rains 7/23/2004 10/4/2004 47 47 47
137 lResendiz, Angel we 53.17201 Deny Har'non 1/15/2004 1/21/2004 23 23 23
138 lReynOSa, Juan WR 66,260-01 Deny Wa lace 10/5/2006 10/11/2006 23 23 23
139anoades, Rim Wit-78.12401 Deny Gniney 10/26/2013 5/21/2014 228 232 228
140 R'chard, M'chael Wit-47.91101 Deny Barr 2/29/2000 11/7/2000 42 42 42
141 R'chard, M'chael Deny Bacon 12/2/2006 12/28/2006 143 143 143
142 R'pkowskiy Br'tt Deny CampbellJ. 12/9/2005 5/2/2006 93 93 93
143 Rivers, Warren Deny Carter 12/15/2006 1/3/2007 91 91 91
144 Riversy Warren Deny Carter 5/18/2007 5/22/2007 145 146 145
145lR'yer5, Warren Deny Poe 8/12/2002 8/14/2002 163 163 163
146 laeb'nson, W'lliam weep/207701 Deny Price 2/3/2007 3/13/2007 113 0 0
147lRocha, Felix 998752515701 Deny Harmon 10/24/2001 11/1/2001 67 67 67

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

940 HOUSTON LAWREVIEW [55:4
. State's Trial Court?s 13:; Total $2129.: 
A1313143301 No. Recommendation Habeas Judge Proposed Proposed Trial Ct Adomed
File Date Signed FOFCL FOFCL Verbatim
148 Deny Brow1,S. Unenown 10/8/2001 187 187 137
149 Rosa es, Mariano Deny Hii 5/31/2002 6/5/2002 49 49 49
150 Rousseau,,4n'bal Deny Bron/1,9 Un<nown 10/5/1999 13 13 13
151 Rowel, Robert Deny Hi1 Unrnown 5/29/2002 59 59 59
152 Russei,lr_, Pete Deny Bradley 10/8/2012 10/9/2012 92 92 92
153 Sales, Ta'us Deny Guinei,l 5/1/2013 8/15/2014 180 180 180
154 Shannon, Willie Deny Poe Unmown 1/20/2001 45 45 45
155 Sheppard, Erica Grant? Brow1,S. 10/4/2011 8/24/2012 240 244 230
156 Shore, Anthony Deny Jackson 9/4/2012 9/11/2012 168 168 168
157 Slater, Pau Deny Bond 10/1/2012 2/13/2014 197 202 200
158 SIater,Pau Deny Bond 10/9/2013 3/5/2015 201 202 200
159 Smith, Demetrius Deny Velasquez 7/18/2014 9/26/2014 113 113 113
160 Smith,Jack WR 8,315-07 Deny Hii 10/14/2011 12/28/2012 114 114 114
161 Smith,Jr., Clyde Deny Aca 8 8/10/1998 4/21/1999 29 29 29
162 Smith, Robert Deny Ell's 12/17/1998 3/11/1998 123 123 123
163 Smith, Roy Vim-42,8010] Deny Coll'ns Unmown 8/24/1999 42 42 42
164 Soffar, Max WR 29,980 03 Deny Keei 12/16/2011 1/5/2012 315 315 315
165 Deny Wiidnson 7/31/2003 7/31/2003 38 38 38
166 Sorto, Walter II1101-7138101 Deny Krocker 12/18/2008 12/29/2008 64 64 64
167 Tamayo, Edgar Deny McSpadden 2/27/2003 3/28/2003 126 126 126
168 Terce'o, Be'nardo Wit-62.59301 Deny Keei 12/1/2004 6/10/2005 53 53 53
169 hacker; Charles Deny Aca a Unmown 7/11/2000 54 54 54
170 Tnomas, Daniel Deny Strickl'n Unqnown 9/3/2004 342 342 342
171 Tnomasy Shannon Deny Strickl'n Un-znown 5/22/2001 39 39 39
172 Tnompsonjharles 02 Deny Shaver 2/7/2013 2/22/2013 166 166 166
173 Tnompsonl. Rohe't Deny Ell's Unrnown 1/25/2005 76 76 76
174 Tong,Ch00ng Deny Bridgewater 6/20/2008 11/10/2008 206 206 206
175 Deny Shaver 6/6/2008 7/10/2008 92 92 92
176 Deny Godw'n 9/1/2005 9/13/2005 73 73 73
177 VillanJevaJorge l111849591701 Deny Coll'ns Unmown 5/17/2001 149 149 149
178 Wasnington,W'llie Deny Bruit/1,5. 9/26/2006 9/28/2006 86 86 86
179 Wesoroot, cw van-52.12002 Deny Carter 024/200? 1/26/2007 119 119 119
180 Wesoroog Coy Deny Shaver 3/4/2002 3/14/2002 122 122 122
131 Wesorooi, Coy vans/2.120702 Deny Carter 6/27/2014 9/5/2014 158 15a 150
182 Whitake'. Ii, George WR 54,762-01, 02 Deny Cosper 8/19/2002 11/18/2002 108 108 108
183 Wi I, II, Robet Deny Brown?. 9/1/2005 11/15/2005 26 26 26
184 Wi I, II, Robe": Deny Brow1,S. 12/31/2014 1/26/2015 120 120 120
185 WI Arthu' 02 Deny Coll'ns 6/1/2010 6/30/2010 49 49 49
186 Wi  ia"n5,Jeffrey Deny Davies Unrnown 2/20/2003 75 75 75
187 Wi Hans, Nanon 1178-4673602 Grant? Camaheil,1. Un<nown 5/3/2001 227 207 113
188 Wi Iia'ns, Perry Deny Hai?i?l?lO'l 8/23/2005 8/26/2005 42 42 42
189 Wi  ia"ns, R'C'rard MFR-4390701 Deny Godw'n Un<nown 10/13/1999 93 93 93
190 Wison, Geno Deny Hi i Unmown 3/26/2003 101 101 101
191 Woodard, Robert 10846501 02 Deny Cosper 8/14/2006 9/19/2006 143 143 143
overrade recommendation TOTAL 21215 21142 20261

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2018] CAPITAL HABEAS PROCEEDINGS 941
APPENDIX 3
JUDICIAL ADOPTION RATES
IN CONTESTED CASES
Habeas 3:31:25 51:11:; Al?zd Adoption Former
Judge Rate 
Slgned Proposed Verbatlm
1 Hill 15 1333 1333 100% Yes
2 McSpadder?i 9 1109 1109 100% Yes
3 Keel 3 905 905 100% Yes
4 Carter 7 336 336 100% Yes
5 Collins 346 346 100% NO
6 Cosper 500 500 100% Yes
7 Krecker 514 514 100% Yes
3 Anderson 5 541 541 100% Yes
9 Rains 5 262 262 100% Yes
10 Wallace 5 419 419 100% NO
11 Aleala 4 302 302 100% Yes
12 Barr 4 695 695 100% Yes
13 Poe 4 453 453 100% Yes
14 Bacon 3 312 312 100% No
15 Davies 3 213 213 100% Yes
16 Guine'j.r 3 453 463 100% Yes
17 Shaver 3 330 330 100% Yes
13 Wilkinson 3 177 100% Yes
19 Bond 2 393 393 100% Yes
20 Bridgewater 2 341 341 100% Yes
21 Brown, M. 2 369 369 100% Yes
22 Magee 2 260 260 100% Yes
23 Evans 2 208 208 100% Yes
24 Velasquez 2 219 219 100% Yes
25 Burdette 1 87 3? 100% Yes
26 Campbell, C. 1 66 66 100% Yes
27' Guerrero 1 211 211 100% No
28 Huffman 1 69 69 100% Yes
29 Jackson 1 163 163 100% Ne
30 Powell 1 243 243 100% No
31 Ritchie 1 133 133 100% Ne
32 Robertson 1 111 111 100% Yes
33 1 92 92 100% Yes
34 Benson 1 29 29 100% Ne
35 Harmon 10 694 634 99% Yes
36 Brown, S. 15 206? 1922 93% Yes
37" Campbell,Garner 1 191 97? 51% N0
39 Price 1 119 0 0% Yes
40 Reagin 1 363 0 0% No
Total 153 16306 15961