As a judge, what do you believe the goals of the criminal justice system should be?

1. To protect society by bringing to justice those who violate our criminal laws. 
2. To provide victims with some sense of closure to the crimes committed against them.
3. To provide those who have been accused of crimes a with a fair trial before an impartial judge who knows the Texas Code of Criminal Procedure, the Texas Rules of Evidence and Texas Penal Code. 
4. To equip the criminal courts with judges who are knowledgeable about the protections provided by the Texas and US Constitutions to all those accused of crimes. 

What Texas State court decision do you think has most impacted society? How and Why?

The State of Texas v. Rendon (477 S.W.3d 805). For society as a whole, in light of the USSCt opinion Florida v. Jardines, the Texas Court of Criminal Appeals reaffirmed the right of citizens to be free of unreasoanble and warrantless seraches of their homes and apartments. Law enforcement cannot circumvent the warrant/affidavit requirement, by simply claiming a drug sniffing dog was able to detect illegal activity behind a closed door when they had already entered the private property of a home owner without a warrant.

As a side note, although actual innocence cases don't impact society as widely as search and seizure cases, wrongfully incarcerating even one person is one too many.  I have been involved in hundreds of cases at the appellate level and authored precedent-setting cases in death penalty cases, search and seizure, and numerous other critical legal issues.   However, Ex parte Steven Chaney (December 19, 2018, authored by Judge Barbara Hervey) also stands out as one of the most important decisions written since I have been on the Court. Chaney affirms the long standing legal standard the Court of Criminal Appeals has used since 1997 that defendants (or applicants) must meet in order to be declared actually innocent when wrongfully convicted of the crimes, that sometimes have kept them imprisoned for decades. As a trial judge and as a Judge on the Court of Criminal Appeals, out of the thousands of cases I have dealt with, I have been involved in only 8 actual innocence cases.  

Who or which class of Texan does the Code of Criminal procedure 20.09. have in mind when it mentions "any Credible Person". How does the particular class invoke initiation of a Grand Jury investigation? CCP Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.

There are is no caselaw that defines a credible person in the context of grand jury proceedings under Article 20.09, so the plain language of the statute controls. Having been involved in one similar case as a visiting judge, the credible person was identified as a lawyer that practiced criminal law, was Board Certified in Criminal Law and the complaint that individual filed tracked the exact language of the Texas Penal Code violations alleged. That was deemed sufficient to classify that individual as a “credible person.”

Please describe what you believe are the most significant issues in this race, why and what you'll do to address them?

The most significant issue in this Primary race is electing the candidate that is the most qualified to sit on the State high court of for criminal cases. The Court of Criminal Appeals reviews all 1) death penalty cases, 2) pretrial and post conviction writs (including actual innocence claims 3) and decides which cases/appeals to review from the 14 intermediate appellate courts in the State. We have the authority to reverse the opinions of intermediate appellate courts and decisions made by trial judges. If the Republican party is interested in keeping the State “red” they will elect the most qualified candidate to win in November. In this election cycle the Democrats have recruited candidates with significant criminal experience (see attached article) including sitting judges and Board Certified candidates. In 2014 I won my Primary race with 60% of the vote. In the General election I had a Libertarian and Democratic opponent and still defeated my closest opponent by 24% points. In my Primary race I am the only candidate with judicial experience (20 years), death penalty experience (over 50 cases), writ experience (100s and 8 actual innocence cases) and significant appellate experience (100s compared to my opponents 3, the last being over 20 years ago). I am the only candidate that is Board certified in Criminal Law in this race. https://www.texastribune.org/2019/11/14/democrats-judicial-races-2020-ballot-crowded-primary/

Are the United States and Texas constitutions living documents? Please answer in the context of Progressivism versus Originalism.

Although the appellate courts are frequently asked to interpret both constitutions, and those opinions can vary dramatically in their conclusions, I follow the ideology of Neil Gorsuch (whom I will mention below): “For me, the respect the separation of powers implies originalism in the application of the Constitution and textualism in the interpretation of the statutes.” (Neil Gorsuch, A Republic, If You Can Keep It). In other words I am not a “Progressive” type of judge, I make every attempt to follow what Justice Gorsuch said in his most recent book: “These tools have served as the dominant methods for interpreting legal texts for most of our history – and for good reason. Each seeks to ensure that judges honor the law as adopted by the people’s representatives, and each offers neutral (nonpolitical, nonpersonal) principles for judges to follow to ascertain its meaning.” When I write my legal opinions, this is the judicial philosophy I follow.             

Please describe the changes you will make to improve the efficiency of your court, yet remain thoughful about rulings/orders - that allows all parties to be heard and their arguments considered. Please specifically address how many days a year your court will be “in session.”

I am on the State’s highest  appellate court, and each case is decided by a majority of the nine judges. Our cases are resolved in a manner different than trial courts where trial judges are solely responsible for “moving their dockets.” Our Court also differs from the intermediate appellate  courts, where the cases are usually decided by panels of three justices.  Having been a trial judge for 15 years, I am mindful of the differences in the workload of trial dockets versus appellate dockets/opinions. When I campaigned in 2014 I advocated for the idea that lawyers be able to file their pleadings online. Although that idea has its own set of unique problems for a criminal appellate court, we have made significant progress in that area, and we have made several technological improvements that have increased our efficiency. Each Judge on the Court is assigned specific cases that are eventually voted on by the entire Court.  The individual judges keep their own timeline, and each dictates when their assigned cases will be circulated and voted on by the entire Court.  I am currently up-to-date on all of of my assigned cases. Occasionally cases may seem to “drag” on for significant amounts of time, but there are usually factors beyond the Court’s control that determine those reasons. I would be happy to discuss some examples in an interview. 

The Court is in session the entire year except on State and Federal holidays.  However, for approximately two months during the summer, the Presiding Judge does not schedule weekly conferences. Nevertheless, the judges continue to vote on cases, and matters continue to be resolved by the Court.  Also during those summer months, the judges address all pleadings filed pertaining to schedules executions, we work on assigned opinions, we attend and speak at State Bar seminars and other continuing legal education programs. In other words, the Court is open for business all year long.              

What are the three main reasons you are running for this office? Do you see any potential conflicts of interest?

1) I have practiced criminal law full-time for over 31 years.

2) I was a felony district court judge for 15 years, and I have been a Judge on the Court of Criminal Appeals for 5 years.

3) I have 11 years experience, both trial and appellate, being a State and Federal prosecutor.

4) I am Board Certified in Criminal Law (less than 1% of lawyers have achieved that distinction).

5) I have worked as a trial judge in over 50 counties in the State of Texas.

6) I have prosecuted, presided as a trial judge and participated in over 50 death penalty cases.

7)  I have experience in hundreds of appeals as a prosecutor, trial judge, and appellate judge.

8) I have experience in hundreds of pretrial and post-conviction writs as a trial judge and appellate judge, including eight actual innocence cases.

9) I have been an adjunct professor at St. Mary’s University School of Law and at local San Antonio colleges for over 15 years.

10) Distinguished Law Graduate of St. Mary's University School of Law 2015.

Do you think judges should be elected by the people, or appointed by a commission?

I have been exposed to the good and bad of both systems. I am in the unique position of having been initially appointed to the 379th District Court by Gov. Bush in 1999, subsequently elected and reelected to that Court in Bexar County, defeated in the “Obama” sweeps in 2008 after receiving every major endorsement in the County, and then elected to the Texas Court of Criminal Appeals in 2014 after defeating Primary and General election opponents by 20% points in each race. I am very much aware of the huge losses across the State in the state appellate court races simply due to straight ticket voting, mostly in the Houston and Dallas areas. I agree with Gov. Abbott and Chief Justice Hecht that there must be a better way to select or keep our judges. That might involve a different selection system for high or appellate court judges versus local judges. A bipartisan committee has been formed by the Governor to study the different ways other States select their judges. I agree that such a committee should be formed. The Missouri plan, so far, sounds the most appealing to me, but I don’t know all the specifics other than that it involves a bipartisan committee that vets qualified candidates for appointment, and they are then subject to retention elections, which give the public the opportunity to remove a judge.      

What differentiates you from your opponents?

I am unable to attach a chart that clearly illustrates my qualifications compared to those of my primary opponent, so I will email it to Mr. Wertz. One word differentiates me from my opponent - EXPERIENCE. 

A Texas Court of Criminal Appeals Judge is not an entry level position.  We have to be able to understand how a criminal case proceeds from jury selection through the appeals process.  We are required to understand all of the legal and procedural issues involved in a criminal case, and we must be able to analyze and author a clear and well-thought out legal opinion resolving all of the appellate issues.  Experience is mandatory.

Apparently in conflict with current pratice in the courts Art. 19.27. of the Texas Code of Criminal Procedure states "ANY PERSON MAY CHALLENGE. Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge." What is the practical application of this statute?

From the question, I am not sure where this conflict exists. Article 19.27 of the Code of Criminal Procedure provides:

Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge. Tex.Code Crim.Proc.Ann. art. 19.27 (Vernon 1998).

Article 19.27 does state a challenge to the grand jury array must be made before the grand jury is impaneled. However, some cases stand for the proposition if that is not possible, then the challenge may be made at the earliest time. See Muniz v. State, 573 S.W.2d 792, 796 (Tex.Crim.App.1978); Garza v. State, 695 S.W.2d 249, 253 (Tex.App.-Corpus Christi 1985, pet. ref'd). I have personally been involved in grand jury indictments that were invalidated due to a challenge after the panel was impaneled, because the it was not possible to make the challenge at the designated time, because information on the panel was withheld.   

CSPOA says "Civil forfeiture laws pose one of the greatest threats to property rights in the nation today. They encourage law enforcement to favor the pursuit of property over the pursuit of justice, and they typically give the innocent little recourse for recovering seized property. And without meaningful transparency, law enforcement faces little public accountability for its forfeiture activity or expenditures from forfeiture funds." How should these Civil Forfieture issues be addressed?

I wrote a semester paper on civil forfeiture laws as a law student over 30 years ago. At the time I was astounded at the power of both the State and Federal governments to seize property from individuals that had committed no wrong doing other than to let another person, even a family member, occupy a home, or use a vehicle not knowing any illegal activity would take place. I am attaching a link to a US Supreme Court opinion from earlier this year that agrees with my position from 30+ years ago. In answer to the question “How should these Civil Forfeiture issues be addressed” I believe the USSCT squarely addressed the issue Timbs v. Indiana on Feb. 20, 2019 (see attached wiki link) that Constitutional protections apply to defendants in both the State and Federal systems when it comes to seizing one’s property in civil forfeiture actions. On remand, the Indiana Supreme Court on October 28, 2019 (see attached link), recognized that seizures and forfeitures can be excessive and issued an opinion providing a framework on how lower courts should determine if the seizure violates either US Constitution.

https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

https://en.wikipedia.org/wiki/Timbs_v._Indiana

https://www.theindianalawyer.com/articles/indiana-court-decisions-oct-24-nov-6-2019

What standards of behavior would you impose on yourself—inside and outside the courtroom?

The Texas Code of Judicial Conduct states the following: Canon 1: Upholding the Integrity and Independence of the Judiciary.   An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge’s Activities A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. B. A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness. C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.

Additionally, the new attorney oath of office states “I will conduct myself with integrity and civility in dealing and communicating with the court and all parties. So help me God."  

I follow those rules every day in addition to treating all who come before the court and work in my chambers with dignity and respect.

Please list Civic, Political or union organization or individuals to whom you have contributed (five years).

I occasionally donate photographs I have taken of the Texas Capitol to various Republican groups. In the last 5 years those would only be the Angleton Republican Club and the Canyon Lake Republican Women. My out of pocket expenses are minimal.    

Is there anything in your background of an embarrassing nature that should be explained before your election? Arrests/Convictions? Bankruptcys?

No

How will you improve the transparency and access to financial and other records for the public?

My financial records are available online through the Texas Ethics Commission. Beyond that, those matters are left to the legislature and either the intermediate appellate courts or Texas Supreme Court to interpret. The Texas Court of Criminal Appeals has no authority, or jurisdiction on those matters.   

What is the job of a judge?   What is your judicial philosophy?

There are several job descriptions for a judge depending on the type of office a judge holds. As a general rule the Texas Code of Judicial Conduct Canon 3 best describes those duties. I have selected those provisions that best describe the general duties of a judge.

“A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.  A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.  A judge shall require order and decorum in proceedings before the judge. A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control. A judge shall perform judicial duties without bias or prejudice.  A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.” 

Specifically, my role on the Texas Court of Criminal Appeals is to review legal briefs parties file before the Court which are accompanied by legal documents, exhibits, and court reporter records and determined which party is legally entitled to the relief they are seeking. Once I make that determination, I write a proposed majority opinion and present it to the members of the Court for a vote. If I obtain 5 votes, including my own, it is adopted as the majority opinion of the Court and issued to the legal community of the entire State through our website. Additionally, when other judges present their opinions in weekly conference. I vote to either join, concur, or dissent to their opinions. Additionally, I have the opportunity to write side opinions to the majority opinion if I decide my position should be further explained.        

The question and answer is similar to that asked above about whether the constitution is a living document. I have copied it and pasted it below. I consider myself in line with Justice Gorsuch’s (and others on the US Supreme Court) view of the constitution, statutes and case law. I am and have always been a conservative Republican. I was raised in a military family and my parents instilled conservative values and love for our country in our family from a very young age. I am old enough to have vivid recollections of my dad’s brother being killed in a USAF F-106 crash in 1963, my father leaving for Vietnam as a fighter pilot for a year in1968, the effects Agent Orange had on him in his later life, and my brother being involved in almost every armed conflict the US has been involved in since the late 1980’s. Both my dad and brother contracted life changing physical ailments as a result of their military service, including my brother’s recent kidney transplant surgery. My conservative judicial philosophy has roots in that upbringing and family life, in addition to my years as a State and Federal prosecutor. From my many assignments as a visiting judge across the State (in over 50 counties), I know what it means to make difficult decisions that are consistent with long standing case law and the constitution.             

I am closely aligned with the ideology of Neil Gorsuch (whom I will mention below): “For me, the respect the separation of powers implies originalism in the application of the Constitution and textualism in the interpretation of the statutes.” (Neil Gorsuch, A Republic, If You Can Keep It). In other words I am not a “Progressive” type of judge, I make every attempt to follow what Justice Gorsuch said in his most recent book: “These tools have served as the dominant methods for interpreting legal texts for most of our history – and for good reason. Each seeks to ensure that judges honor the law as adopted by the people’s representatives, and each offers neutral (nonpolitical, nonpersonal) principles for judges to follow to ascertain its meaning.” 

What role should government have in reforming criminals?

That would depend on the crimes committed, the sentences imposed and the age of defendants. Having worked in the criminal justice system for 3 decades, unfortunately I have concluded that some individuals will not and cannot ever be reformed. The government, in those cases, has a responsibility to make sure they can never harm innocent victims again in our society by whatever means is necessary. However, there are those that can be reformed. I have dealt with veterans that suffered the ravages of PTSD and steered them in the direction of services available through the probation offices and the VA while being supervised on probation. I have personally presided over cases where the changes have been remarkable, including successful small business owners, counselors in hospitals and mental health facilities, lawyers and other careers. Most of that assistance comes from programs already in place, funded by fees defendants pay to the criminal justice system, or programs set up through grants and private agencies. It is not actually the government’s responsibility, but that of each defendant in deciding if they want to reform themselves into productive members of society.      

Please explain your view of recidivism and how it affects the sentences you given

Because I am an  appellate judge I am no longer involved in the sentencing process. I have no authority at my level to reform a sentence based solely on the recidivism issue. I can remand cases to the trial court if sentences imposed are illegal, or outside the appropriate punishment range. However, I am able to shed some light on this issue based on my experience as a former State and Federal prosecutor, and as a trial judge for 15 years. 

First, defendants in the State system have a right to have either a jury or judge assess their sentence. That right is provided by our State laws. Additionally, the sentencing ranges in Texas, depending on the level of offense committed, are huge. For example, the range in a first degree felony can be anywhere from 5 years to life and can include probation in some cases. If a defendant elects to have the jury assess their punishment, the judge has no authority to intervene in the sentencing process, regardless of the recidivism evidence or issue. If a defendant elects to have a judge assess his sentence then, by law, a comprehensive presentence report is prepared and the sentencing range will depend on whether there is a plea agreement, or it is from a jury verdict. If it is from a jury verdict the judge has the entire range of punishment to consider. In some cases probation is not authorized to be imposed by a judge from a jury verdict. 

However, in most cases where the State judge is sentencing, there is a fixed plea agreement, or a cap that the judge cannot exceed. If the judge does not follow the agreement or exceeds the cap then the defendant can withdraw his plea by law. However, if the cap has an upper and lower end then the judge is well within his authority to sentence the defendant at the top end. If a defendant’s presentence report indicated a likelihood to reoffend, I always considered that in determining the appropriate sentence and it was rarely in the defendant’s favor.

As a side note, sentencing in the federal system is determined by the federal sentencing guidelines. Unlike the State system, that sentence is determined by a fixed calculation of the offense and the defendant’s criminal history and federal judges, have very little leeway in imposing a sentence outside of those guidelines.          

What carries the greatest influence on your ruling: case law, the Constitution, or other?

1. If there is a cognizable constitutional issue before me then the Constitution overrides statutes and case law. However, many of our constitutional issues have resulted in courts interpreting the Constitution through case law (abortion, death penalty standards for execution, etc.),  Stare decisis is the legal principle that requires lower courts to follow that case law; however, intermediate courts of appeals and high courts have the authority to overrule their own prior case law in some instances. Some US Supreme Court Justices have recently hinted in their opinions they are open to that idea in some instances, without saying which case or cases. 
2. If intermediate appellate courts or higher courts have interpreted a statute then lower courts (usually trial courts) are required to follow that interpretation of the statute.  

To what extent do you believe the state or federal government should be able to obtain court orders directing parents to do things for their children that the parent does not believe should be done?

I have never dealt with matters related to the government’s interference with parental rights unless it relates to child abuse in any form, those matters are typically reserved for a designated family court and not the criminal courts, and certainly not the Texas Court of Criminal Appeals, those matters are ultimately decided by the Texas Supreme Court. However, I believe any interference in parental decisions should be accompanied by a sworn affidavit presented to a neutral and detached magistrate or judge stating the mental or physical well-being of a child is at stake, and the action the government is seeking to take with that child. If in fact that takes place, a parent should have a legal remedy within a short window of time to address that action. The government’s legal standard to support that action should be at least clear and convincing.    

Among the nine justices on the U.S. Supreme Court(SCOTUS), which one do you respect the most, and why? Which one do you respect the least, and why? What judicial philosophy should a SCOTUS Justice have?

Neil Gorsuch. I respect his humility, intellect, conservative values, educational background, fidelity to the rule of law and devotion to his family and religion. In a recent speech at the Texas Capitol for the investiture of newly appointed Texas Supreme Court Judges, he commented on the importance of judges following the rule of law, that was reiterated by this quote in an interview on Fox News: “I go home at night where at times the law requires a result I personally would not prefer. The assumption that if I rule a certain way, I must like that person or party, or if I rule another way, I must dislike that person or party, that’s not what judges are supposed to think. They take an oath to apply the law equally to all persons who come before them.” Those words have real meaning to me given some of the cases I have ruled upon in my judicial career. 

I don’t want to say I don’t respect Justice Breyer the least, because anybody that rises to that level obviously has achieved many successes throughout their career; however, I do not agree with his legal philosophy and views on many issues. Nevertheless, I would prefer to keep those views to myself so as not to tread on the Texas Code of Judicial Conduct and risk being recused on certain cases. 

What judicial philosophy should a SCOTUS Justice have? My comments and observations on  Justice Gorsuch are indicative of what judicial philosophy I think a SCOTUS Justice should have, I don’t think I need to add any more to that list.