IN THE 366TH JUDICIAL DISTRICT COURT 
OF COLLIN COUNTY, TEXAS 


EX PARTE CHARLES DEAN HOOD, 
Cause No. W296-80233-90 

APPLICANT 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

On November 19, 2008, the Court of Criminal Appeals remanded Applicant 
Charles Dean Hood's case to this Court for consideration of two issues: (1) 
whether the equitable doctrine of laches should bar consideration of his judicial 
bias claim; and (2) whether the claim satisfies the requirements for obtaining 
merits review of a successive habeas petition. Ex parte Hood, No. WR-41,168-11 
(Tex. Code Crim. App. Nov. 19, 2008). On March 6, 2009, the parties submitted 
affidavits directed toward resolving these issues. On March 27, 2009, the parties 
submitted proposed findings and conclusions. After reviewing the affidavits and 
proposed findings, along with the record and legal briefs, this Court makes the 
following Findings of Fact and Conclusions of Law: 


I. 
LACHES 
A. 
Findings of Fact 
1. The Applicant, Charles Dean Hood, was tried and convicted for capital 
murder, and received a sentence of death, in 1990. 
2. 
Judge Verla Sue Holland of the 296th Judicial District Court of Collin 
County, presided over Hood's capital murder trial. 
3. 
The elected District Attorney of Collin County, Thomas S. O'Connell, Jr., 
participated in the prosecution of Hood for capital murder. 
4. 
Judge Holland and Mr. O'Connell were involved in an intimate sexual 
relationship prior to Hood's capital murder trial. 
5. 
Judge Holland continued to serve as the presiding judge of the 296th 
Judicial District Court during Hood's direct appeal (1990-94). During 
Hood's state habeas proceedings (1994-99), she left the district court bench 
and served as a judge on the Court of Criminal Appeals ("CCA"). She 
continued to serve on the CCA during Hood's federal district court habeas 
proceedings (1999-2000), as well as a portion of his Fifth Circuit appeal 
(2000-04).' Prior to the capital murder trial - and during the appellate and 
post-conviction proceedings - Judge Holland never disclosed her 
relationship with Mr. O'Connell to Hood. 
6. 
Mr. O'Connell served as the District Attorney of Collin County during the 
time of Hood's indictment (1989), trial (1990), direct appeal (1990-94), 
state habeas review (1994-99), federal district court habeas review (19992000), 
and Fifth Circuit appeal (2000-04).2 During these proceedings, Mr. 
O'Connell never disclosed his relationship with Judge Holland to Hood. 
Judge Holland resigned from the CCA on September 2, 2001. 
2 Mr. O'Connell left the District Attorney's Office on December 31, 2002. 
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7. 
Judge Holland and Mr. O'Connell took deliberate measures to ensure that 
their affair would remain secret. There were no public displays of affection. 
Holland deposition at 52; O'Connell deposition at 43. Their sexual 
encounters took place at each other's homes when their spouses were away. 
Id. at 16-17; Holland deposition at 52. Mr. O'Connell could not recall 
telling anyone, except possibly his sisters, about his romantic relationship 
with Judge Holland. O'Connell deposition at 18. Judge Holland told no 
one. Holland deposition at 31, 33. 
B. 
Conclusions of Law 
1. 
The equitable doctrine of laches is inapplicable to inmates seeking postconviction 
relief in a subsequent application pursuant to Article 11.071 of 
the Texas Code of Criminal Procedure. 
2. 
The CCA has repeatedly recognized that "Article 11.071 now contains the 
exclusive procedures for the exercise of this Court's original habeas corpus 
jurisdiction in death penalty cases." Ex parte Smith, 977 S.W.2d 610, 611 
(Tex. Crim. App. 1998) (emphasis in original) (quoting Ex parte Davis, 947 
S.W.2d 216, 224 (Tex. Crim. App. 1996) (opinion of McCormick, P.J.)).3 
3. 
Any attempt to impose additional requirements on death-sentenced 
prisoners challenging their conviction or punishment would undermine the 
Legislature's clear intent in enacting Article 11.071 and violate the 
separation of powers. 
4. 
Section 5 of Article 5 of the Texas Constitution expressly gives the 
Legislature the complete authority to regulate "the means, manner, and 
mode" of asserting a habeas claim. Davis, 947 S.W.2d at 223. The 
Legislature's constitutional regulatory authority includes the right to impose 
restrictions on a death row inmate's ability to file abusive or successive 
habeas applications challenging the same criminal conviction or sentence. 
Id. at 222-24; Ex parte Blue, 230 S.W.3d 151, 155-56 (Tex. Crim. App. 
2007). 
3 Although Presiding Judge McCormick's opinion in Davis is labeled a concurring opinion, a 
majority of the CCA joined it and regards it as an opinion for the Court. Smith, 977 S.W.2d at 
611 n.4. 


5. 
The CCA has recognized that the intent of Article 11.071 is "to speed up the 
habeas corpus procedures for capital cases, while retaining exceptions 
which permit late filings" in a narrow set of circumstances. Smith, 977 
S.W.2d at 611. By imposing strict deadlines for filing an initial habeas 
application, the Legislature sought to expedite the capital post-conviction 
process in support of the State's interest in finality. See Tex. Code Crim. 
Proc. art. 11.071, §4. 
6. 
The Legislature also created a set of narrowly-defined exceptions, allowing 
the filing of a subsequent application if (1) the facts or law in support of the 
claim were not previously available through the exercise of reasonable 
diligence; (2) no rational juror would have found the inmate guilty; or (3) no 
rational juror would have sentenced the inmate to death. See Tex. Code 
Crim. Proc. art. 11.071, § 5. The Legislature imposed no time limits on the 
CCA's consideration of the merits of a later-filed, successive application if 
it otherwise meets one of the limited exceptions found in Section 5 of 
Article 11.071. 
7. 
As the CCA emphasized in Smith, when the applicant asked the Court to 
create an exception to the strict filing deadlines for initial applications set 
out in Article 11.071: 
Our oaths are to uphold the constitutions and laws of this 
country and state; they are not a commission to do what a 
majority of us think is fair. This law was passed by the 
legislature and approved by the governor, in accordance 
with our constitutional form of government. The law is 
clear: this court shall dismiss this application because it 
was filed late. If the law is barbarous, the legislature 
should repeal it or the governor should commute or 
pardon those who are subjected to it. In the meantime, 
we must follow it. 

977 S.W.2d at 611; see Blue 230 S.W.3d at 167 (noting that Article 

11.071 does not provide for appointment of counsel on a successive 
petition and concluding that "this is a regrettable dilemma But it 
is one we are not at liberty to solve for him, in light of the legitimate 
legislative judgment as expressed in the statute. Counsel for the 
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applicant, and others similarly situated, must present their dilemma 
for the consideration of the Legislature."). 

8. 
The CCA has explained its duty to refrain from intruding into the legislative 
realm: 
Courts have no power to legislate. It is the court's duty 
to observe, not to disregard statutory provisions. Courts 
can neither ignore nor emasculate the statutes. Further, 
courts have no power to create an exception to a statute, 
nor do they have power to add to or take from legislative 
pains, penalties and remedies.... It is for the 
Legislature, not the courts, to remedy defects or supply 
deficiencies in the laws, and to give relief from unjust 
and unwise legislation. 

State v. Ross, 953 S.W.2d 748, 751 n.4 (Tex. Crim. App. 1997). 

9. 
In Smith, the courts lacked the power to create a judicial exception that 
would have benefitted the applicant. Here, the courts lack the power to 
impose an additional successive application requirement that would work to 
the State's advantage. The Legislature has occupied the field of regulating 
post-conviction proceedings in death penalty cases. If the State believes 
that a successive petition filed after excessive delay - that otherwise meets 
one of the exceptions to the general bar on successive applications - should 
be rejected, then it must take up its complaint with the Legislature and urge 
it to amend Article 11.071. The courts may not create an ad hoc judicial 
requirement in this case or any other. 
10. 
Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999), is inapt. In 
Carrio, the CCA adopted the doctrine of laches for non-death-sentenced 
inmates filing an initial habeas petition under Article 11.07. The CCA 
noted that, unlike Article 11.071, the post-conviction provisions of Article 
11.07 contain no timeliness requirements for filing the initial application. 
Id. at 488 n.3. More important, Carrio does not purport to allow a laches 
defense to the filing of a subsequent petition that otherwise meets one of the 
exceptions to the general prohibition on such petitions - exceptions that are 
"virtually identical" to the ones found in Section 5 of Article 11.071. Davis, 

947S.W.2dat227 

11. 
Even if the doctrine of laches should apply, the State cannot demonstrate 
"clean hands." 
12. 
The CCA has defined the doctrine of laches as: 
the maxim that equity aids the vigilant and not those who 
slumber on their rights. It is defined as neglect to assert 
right or claim which, taken together with lapse of time 
and other circumstances causing prejudice to an adverse 
party, operates as a bar in a court of equity. 

Carrio, 992 S. W.2d at 487 n.2 (citation omitted). 

13. 
To prevail on its laches defense, the State must: (1) make a particularized 
showing of prejudice; (2) show that the prejudice was caused by Hood's 
having filed a delayed application; and (3) show that Hood did not act with 
reasonable diligence as a matter of law. Id. at 488. The CCA explained that 
the type of prejudice the State must show is prejudice in its ability to 
respond to the allegations in the petition. Id. If the trial court finds that the 
State has met its initial burden, the court shall afford the inmate an 
opportunity to demonstrate either that the State actually has not been 
prejudiced or that the inmate's delay in pursuing his claims is justified. Ex 
parte Waites, 2009 WL 252355 (Tex. Crim. App. Feb. 4, 2009) 
(unpublished), slip op. at *2. 
14. 
As an equitable doctrine, laches is subject to equity's limitations. One of 
those limitations is the doctrine of "clean hands." "A party cannot obtain 
equitable relief if the party's own wrongful conduct is partially responsible 
for the events at issue." Peacock v. State, 11 S.W.3d 285, 291-92 (Tex. 
Crim. App. 2002) (Keller, J., dissenting); see Regional Properties, Inc. v. 
Financial & Real Estate Consulting Co., 752 F.2d 178, 182 (5th Cir. 1985) 
("An equitable defense cannot be used to reward inequities nor to defeat 
justice."); see also Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 
2003) (holding that "a party may be estopped from asserting a claim that is 
inconsistent with that party's prior conduct"). 
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15. 
The State cannot invoke the equitable doctrine of laches because its hands 
are unclean: Judge Holland and Mr. O'Connell did not abide by their ethical 
and constitutional duties to disclose the fundamental conflict caused by their 
relationship. See Tex. Disciplinary R. Prof 1 Conduct, Rule 3.05(a), (b) 
(prohibiting lawyers from improperly influencing tribunal or 
communicating ex parte with tribunal); cmt. 3 (noting that "ex parte 
contacts between a lawyer and a tribunal have been subjected to stringent 
control because of the potential for abuse such contacts present"); Rule 3.09 
cmt. 1 ("A prosecutor has the responsibility to see that justice is done, and 
not simply to be an advocate."); Tex. Code of Judicial Conduct, Canon 1 
("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(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."); Canon 2(B) ("A judge shall not allow any relationship to 
influence judicial conduct or judgment."); Canon 3(B)(8) (prohibiting ex 
parte contacts); Canon 4(A) ("A judge shall conduct all of the judge's extrajudicial 
activities so that they do not: (1) cast reasonable doubt on the 
judge's capacity to act impartially as a judge; or (2) interfere with the proper 
performance of judicial duties."); Banks v. Dretke, 540 U.S. 668, 696 (2004) 
("A rule thus declaring 'prosecutor may hide, defendant must seek,' is not 
tenable in a system constitutionally bound to accord defendants due 
process."); Strickler v. Greene, 527 U.S. 263, 280 (1999) (emphasizing "the 
special role played by the American prosecutor in the search for truth in 
criminal trials"); Berger v. United States, 295 U.S. 78, 88 (1935) (noting 
that the State has an interest in a criminal prosecution to see "not that it shall 
win a case, but that justice shall be done"). 
16. 
Even if the State could demonstrate "clean hands," it cannot show that the 
delay has prejudiced its ability to respond to the allegations in the petition. 
17. 
The CCA has adopted an understanding of laches for non-death-sentenced 
inmates seeking initial habeas relief in which "the length of delay alone will 
not constitute unreasonableness of delay or prejudice." Carrio, 992 S.W.2d 
at 488. Instead, the State bears the burden of making a particularized 
showing of prejudice in its ability to respond to the allegations in the 
petition caused by the inmate's having filed a delayed petition. Id. 
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18. 
The depositions of Mr. O'Connell and Judge Holland reveal that there is no 
dispute that their intimate, sexual relationship began before Hood's trial. 
Any disputes of fact possibly attributable to the erosion of memory caused 
by the passage of time concern only the date the affair ended. These factual 
disputes are immaterial. It is the appearance of partiality that is damaging to 
the public's confidence in the integrity of the judicial process; Hood need 
not prove actual bias. See In re Murchison, 349 U.S. 133, 136 (1955) ("[T]o 
perform its high function in the best way, justice must satisfy the appearance 
of justice."); Commonwealth Coatings Corp. v. Continental Casualty Co., 
393 U.S. 145, 150 (1968) (holding that "any tribunal permitted by law to try 
cases and controversies not only must be unbiased but also must avoid even 
the appearance of bias"); Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. 
App. 1992) (holding that the standard for assessing judicial bias is whether 
the allegation of lack of impartiality is grounded on facts that would create 
doubts concerning the judge's impartiality in the mind of a reasonable 
person with knowledge of all the circumstances involved). 
19. 
Under the doctrine of laches, even if the State could show that Hood's delay 
caused the State prejudice in its ability to respond to the claim, the State 
would still have to demonstrate that Hood did not act with reasonable 
diligence in bringing the judicial bias claim. See Carrio, 992 S.W.2d at 
488. This element of laches appears similar to the "reasonable diligence" 
requirement found in Section 5 of Article 11.071. Hood acted with 
reasonable diligence. See Part II, infra. 

II. 
REASONABLE DILIGENCE 
A. 
Findings of Fact 
1. 
In its remand order, the CCA says that Hood "did not try to obtain proof of 
the affair until some eighteen years after his trial." Ex parte Hood, No. WR41,168-
11 (Tex. Code Crim. App. Nov. 19, 2008), slip op. at 4. This 
statement is incorrect. 
2. 
Based only on rumors of an affair, Hood's former habeas counsel decided to 
look into the matter, prior to filing the initial habeas application. In 199596, 
Hood's investigator, Tena S. Francis, conducted extensive records 
research. She reviewed divorce records, records obtained from the Office of 
Elections Administration, and case files in the Collin County District 
Clerk's Office. Ms. Francis interviewed members of Hood's defense team, 
attorneys practicing in Collin County, and Judge Holland's former husband, 
Earl Holland. She attempted to interview Judge Holland's bailiff, but he 
refused to discuss the judge's personal life with her. She contacted the State 
Commission on Judicial Conduct. See Affidavit of Tena S. Francis (Aug. 1, 
1996). 
3. 
Ms. Francis was unable to develop any concrete evidence of the affair. 
4. 
On June 27, 2005, shortly before Hood's scheduled execution date, A. 
Richard Ellis, former counsel for Hood, contacted Judge Holland. She 
refused to comment on the allegations that she had had a romantic affair 
with Mr. O'Connell. On the same day, Mr. Ellis contacted Mr. O'Connell. 
Mr. O'Connell denied that he had had a romantic affair with Judge Holland. 
See Affidavit of A. Richard Ellis (Mar. 3, 2009). 
5. 
On June 3, 2008, Hood received the affidavit of Matthew Goeller, a former 
assistant district attorney in Collin County, Texas. 
6. 
Mr. Goeller's affidavit marked the first time that a former employee of the 
District Attorney's Office who had worked there during Mr. O'Connell's 
tenure was willing to speak on the record and under oath about the 
relationship. 
7. 
Mr. Goeller stated that the romantic relationship between Judge Holland and 
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Mr. O'Connell was ongoing when Mr. Goeller began working at the District 
Attorney's Office in 1987. 

8. 
In June 2008, counsel for Hood retained Toni Knox, a private investigator. 
She reviewed the work previously conducted by Ms. Francis, and then 
interviewed approximately two dozen individuals in the Collin County area 
who seemed likely to have some knowledge of the HolIand-O'Connell 
affair. See Affidavit of Toni Knox, LCSW (Mar. 3, 2009). 
9. 
Like Ms. Francis, Ms. Knox found no one who could confirm the existence 
of a romantic relationship between Judge Holland and Mr. O'Connell. The 
witnesses could only attest that they had heard rumors about the affair. 
10. 
From June until September 2008, Ms. Knox spent over 80 hours 
investigating the judicial bias claim. Hood's counsel paid her over $5,500 
out-of-pocket for her time and expenses. 
11. 
In 2008, Hood's counsel, Gregory W. Wiercioch, left a voice mail message 
on Judge Holland's phone. She refused to cooperate with his investigation. 
Holland deposition at 15-16. 
12. 
Judge Holland and Mr. O'Connell wrongfully withheld relevant information 
from defense counsel prior to and during the trial, the direct appeal, the state 
habeas proceedings, the federal habeas proceedings, and the successive state 
habeas proceedings. Indeed, Mr. O'Connell misled habeas counsel during 
the successive state habeas proceedings and Judge Holland resisted 
counsel's investigative efforts. 
13. 
Hood filed his previous application on the morning of September 8, 2008. 
14. 
Hood did not complete the deposition of Mr. O'Connell until 7:17 p.m. on 
September 8, 2008. O'Connell deposition at 2. Hood did not complete the 
deposition of Judge Holland until 12:19 p.m. on September 9, 2008. 
Holland deposition at 2. 
15. 
Hood filed the current application on September 26, 2008. 
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B. 
Conclusions of Law 
1. 
To obtain merits review of his judicial bias claim, Hood must show 
"sufficient specific facts" establishing that the factual basis of the claim 
"was not ascertainable through the exercise of reasonable diligence" at the 
time he filed his previous habeas application. See Tex. Code. Crim. P art 
11.071, §§ 5(a)(1), (e). 
2. 
Hood exercised reasonable diligence. 
3. 
Hood's unsuccessful efforts to obtain concrete evidence of the Holland-
O'Connell affair cannot be attributed to his failure to exercise reasonable 
diligence but, instead, is explained by the principals' longstanding efforts to 
keep the affair hidden. 
4. 
In determining the scope of a habeas investigation, a reasonably diligent 
attorney is entitled to rely on the presumption that State officials have fully 
discharged their ethical and constitutional duties. 
5. 
Hood cannot be faulted for failing to exercise reasonable diligence when 
State officials prevented him from obtaining concrete evidence of the 
Holland-O'Connell affair. Cf. Murray v. Carrier, All U.S. 478, 488 (1986) 
(finding that "some objective factor external to the defense" - including 
"interference by officials" -justifies inmate's failure to raise claim earlier). 
Because conscientious counsel may presume that State officials have abided 
by their ethical and constitutional responsibilities, counsel does not have a 
procedural obligation to investigate constitutional error on the basis of mere 
suspicion that some prosecutorial or judicial misconduct may have occurred. 
Strickler v. Greene, 527 U.S. 263, 286-87 (1999). 
6. 
In this case, however, the presumption proved false. Hood would never 
have had to seek a reprieve from the Governor had Judge Holland or Mr. 
O'Connell simply fulfilled their duty to disclose the fundamental conflict 
caused by their relationship. See Tex. Disciplinary R. Prof 1 Conduct, Rule 
3.05(a), (b) (prohibiting lawyers from improperly influencing tribunal or 
communicating ex parte with tribunal); cmt. 3 (noting that "ex parte 
contacts between a lawyer and a tribunal have been subjected to stringent 
control because of the potential for abuse such contacts present"); Rule 3.09 
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cmt. 1 ("A prosecutor has the responsibility to see that justice is done, and 
not simply to be an advocate."); Tex. Code of Judicial Conduct, Canon 1 
("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(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."); Canon 2(B) ("A judge shall not allow any relationship to 
influence judicial conduct or judgment."); Canon 3(B)(8) (prohibiting ex 
parte contacts); Canon 4(A) ("A judge shall conduct all of the judge's extrajudicial 
activities so that they do not: (1) cast reasonable doubt on the 
judge's capacity to act impartially as a judge; or (2) interfere with the proper 
performance of judicial duties."); Banks v. Dretke, 540 U.S. 668, 696 (2004) 
("A rule thus declaring 'prosecutor may hide, defendant must seek,' is not 
tenable in a system constitutionally bound to accord defendants due 
process."); Strickler, 527 U.S. at 280 (emphasizing "the special role played 
by the American prosecutor in the search for truth in criminal trials"); 
Berger v. United States, 295 U.S. 78, 88 (1935) (noting that the State has an 
interest in a criminal prosecution to see "not that it shall win a case, but that 
justice shall be done"). 

7. 
Two U.S. Supreme Court cases, Williams v. Taylor, 529 U.S. 420 (2000), 
and Strickler v. Greene, 527 U.S. 263 (1999), discuss the diligence of state 
habeas counsel. Williams and Strickler recognize that reasonably diligent 
habeas counsel, when determining the scope of their investigation, are 
entitled to trust that State actors have fulfilled their professional and 
constitutional obligations. Without this presumption, the burden on habeas 
counsel to conduct a reasonably diligent investigation would be onerous 
because the scope of the investigation would be limitless. 
8. 
Instances in which the CCA has permitted applicants to proceed on the 
merits of subsequent applications confirm a similar understanding of 
Section 5(a)(1) of Article 11.071. When State officials have suppressed 
favorable evidence, the CCA has found the reasonable diligence 
requirement satisfied - even if habeas counsel could have uncovered the 
evidence had counsel undertaken fairly routine investigative tasks during 
the previous proceedings. See Ex parte Michael Roy Toney, WR-51,047-03 
(Tex Crim. App. Sept. 20, 2006) (unpublished) (authorizing successive 
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proceedings on Brady and Napue claims based on evidence that subsequent 
habeas counsel obtained through public information act request); Ex parte 

Anibal Garcia Rousseau, WR-43,534-02 (Tex. Crim. App. Sept. 11, 2002) 
(unpublished) (authorizing successive proceedings on Brady and actual 
innocence claims based on evidence that subsequent habeas counsel 
uncovered through request to review district attorney's file); see also Ex 

parte Lemke, 13 S.W.3d 791, 794 (Tex. Crim. App. 2000) (authorizing 
successive application raising ineffective assistance of counsel claim, 
because "reasonable diligence" did not require inmate "to query the district 
attorney about the existence of plea bargain offers when he had been 
assured by his attorney that there were none"). 

9. 
In the face of rumors of an affair, Hood was entitled to presume that Judge 
Holland's and Mr. O'ConnelPs behavior - refusing to recuse themselves 
from cases Mr. O'Connell personally prosecuted in Judge Holland's 
courtroom - indicated that the rumors were false. 
10. 
Even assuming the absence of State interference, Hood exercised reasonable 
diligence. 
11. 
Section 5(a)(1) does not require a death-sentenced inmate to use Rule 202 
of the Texas Rules of Civil Procedure in an attempt to force recalcitrant 
witnesses to speak. 
12. 
Hood's repeated attempts to uncover evidence of a secret affair cannot be 
characterized as less than reasonably diligent simply because he did not 
pursue Rule 202 proceedings earlier. Under the "reasonable diligence" 
inquiry of Article 11.071, the question is not whether the facts could have 
been ascertained previously, but whether the inmate was diligent in his 
efforts. Diligence depends upon whether the prisoner made a reasonable 
attempt, in light of the information available at the time, to investigate and 
pursue his claims. Williams, 529 U.S. at 435. It does not depend upon 
whether those efforts could have been successful. Id. 
13. 
Hood's investigation satisfies Lemke's interpretation of the "reasonable 
diligence" provision that "at least some kind of inquiry has been made into 
the matter at issue." 13 S.W.3d at 794. 
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14. 
Based on courthouse gossip and speculation about an intimate relationship 
between Judge Holland and Mr. O'Connell, Hood's habeas counsel made 
reasonable efforts in 1995-96 to develop the facts of the affair. Because 
counsel was unable to confirm these suspicions, she did not have a good 
faith basis to allege a judicial bias claim in the initial application. Under 
these circumstances, diligence did not demand that counsel pursue every 
conceivable option, including commencing civil litigation under Rule 202. 
That Rule 202 would ultimately prove successful is immaterial. See 
Williams, 529 U.S. at 435. 
15. 
In short, "reasonable diligence" does not impose on counsel a duty to 
conduct a broad, unfocused investigation grounded on mere speculation or 
rumor, without any basis in triggering/ac*. Article 11.071 nowhere requires 
counsel to launch such a "fishing expedition." Instead, habeas counsel's 
duty requires that counsel conduct an investigation concerning specific 
triggering facts that come to counsel's attention in the course of, among 
other things, reviewing the reporter's record and the clerk's record, 
examining trial counsel's files, reading the appellate briefs, and 
interviewing the client and trial counsel. See generally State Bar of Texas, 
Guidelines and Standards for Texas Capital Counsel, 69 Tex. Bar J. 966, 
977-81 (2006). 
16. 
Despite relying on nothing but speculation as the basis for pursuing an 
investigation, Hood nonetheless made a conscientious attempt to determine 
whether there was any truth to the rumors of the Holland-O'Connell affair. 
The failure to develop the facts of the judicial bias claim in the first or 
subsequent rounds of habeas review is squarely attributable to Judge 
Holland and Mr. O'Connell's deception and non-disclosure, rather than the 
lack of reasonable diligence on Hood's part. 
17. 
Mere speculation or suspicion does not suffice to "impose a duty on counsel 
to advance a claim for which they have no evidentiary support." Strickler, 
527 U.S. at 286. Only last year did Hood obtain evidence of the Holland-
O'Connell affair from a credible source who was willing to provide a sworn 
statement. 
18. 
Only after obtaining the Goeller affidavit did Hood have a good faith basis 
for seeking investigatory depositions under Rule 202. He could not have 
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filed such a petition any earlier without running afoul of Rule 13 of the 
Texas Rules of Civil Procedure. See Tex. R. Civ. Proc. 13 ("The signatures 
of attorneys or parties constitute a certificate by them that... to the best of 
their knowledge, information, and belief formed after reasonable inquiry the 
instrument is not groundless and brought in bad faith or groundless and 
brought for the purpose of harassment."). 

19. 
Hood's pursuit of Rule 202 anticipatory depositions demonstrates 
extraordinary diligence. 
20. 
Rule 202 is a rule of civil - not criminal - procedure. Hood argued in the 
Rule 202 proceedings that depositions could lead to evidence supporting an 
application for clemency or request for reprieve. Simply because Rule 202 
yielded evidence pertinent to a challenge to Hood's conviction and sentence 
does not mean that habeas counsel must pursue civil remedies to satisfy 
their duty of exercising reasonable diligence. In fact, the State repeatedly 
accused Hood of improperly using civil procedure to pursue habeas relief. 
See, e.g., Motion to Correct Misnomer of Pleadings and File as Subsequent 
Habeas Petition (docketed Aug. 22, 2008); Motion to Forward All Pleadings 
in Cause Number 296-80233-90 in the 296th Judicial District Court of 
Collin County, Texas (docketed Sept. 2, 2008). 
21. 
Hood did not use Rule 202 until after the CCA had dismissed his successive 
habeas petition raising the judicial bias claim for the first time - despite the 
Goeller affidavit. In other words, Hood did not attempt to use Rule 202 
until the habeas process had proved futile. 
22. 
Pursuing depositions under Rule 202 demanded painstaking research, as 
well as substantial time and money to conduct the litigation - including 
responding to the notices of removal filed by Judge Holland and Mr. 
O'Connell. An attorney exercising ordinary care and reasonable diligence 
would not have felt compelled to expend limited resources on such a 
speculative undertaking. 
23. 
The deposition testimony of Judge Holland and Mr. O'Connell constitutes a 
new factual basis for the judicial bias claim that "was not ascertainable 
through the exercise of reasonable diligence" at the time Hood filed his 
previous application. Tex. Code. Crim. P. art 11.071, §§ 5(e). 
•15

III. 
RECOMMENDATION 
1. 
The Court has collected and adduced the evidence necessary to make a 
recommendation on the two issues presented by the Court of Criminal 
Appeals. Based upon the evidence, pleadings and arguments of counsel, the 
Court recommends that the doctrine of laches does not bar the consideration 
of Applicant's claim. Based upon the evidence, pleadings and arguments of 
counsel, the Court recommends that Applicant meets the dictates of Article 
11.071 §5 of the Texas Code of Criminal Procedure. The Court 
recommends that Applicant has satisfied the showing required by Article 
11.071 §5 (a)(1). 
2. 
The Clerk of this Court is ordered to send these Recommendations and the 
record of any proceedings conducted in connection with this matter to the 
Court of Criminal Appeals instanter. 
SIGNED this 

JUDGE GREG BREWER 

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