IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

                                                                 NO. 65,537-01

                                           EX PARTE DAVID GARZA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS WRIT OF PROHIBITION, AND MOTION FOR TEMPORARY RELIEF

                                                       FROM BEXAR COUNTY

Johnson, J., filed a statement dissenting to the denial of relief.

                                 D I S S E N T I N G   S T A T E M E N T

As lawyers, we are admonished to avoid not only impropriety, but also the appearance of impropriety.  We are also responsible for the actions of persons who, while not attorneys themselves, act as our agents.  We are so instructed because even the appearance of impropriety creates doubt about the integrity of the justice system and decreases public confidence in the courts.  I believe that this is a case in which there is the appearance of impropriety by both an attorney and agents of that attorney: A prosecutor who, as a district judge, presided at a past proceeding in this case, and investigators whose unfortunate remarks, which appear to reveal an intention to reach a predetermined conclusion in the renewed investigation, became public. 

It may be argued that this is an investigation into whether there is a murderer who has not been prosecuted, not an investigation into whether the case against Ruben Cantú can withstand scrutiny in light of the recent recantations, and that therefore there is no impropriety.  However, Garza testified against Cantú, saying that Cantú was the person who went into a house and shot two persons, killing one.  Garza was convicted of robbery in that case, after claiming that he did not enter the house and did not know that anyone would be harmed.  Given that testimony, any inquiry into whether there is a murderer who has not been prosecuted necessarily implicates the case against Ruben Cantú. 

Because of that unavoidable implication, I believe that the refusal of the elected district attorney to recuse herself and the investigators creates the appearance of impropriety.  Both the elected district attorney and the investigators should be barred from any contact with the current investigation.  Requiring that a special prosecutor and different investigators, preferably ones who were not involved in the prior investigation, be assigned to the investigation would go a long way to removing any appearance of impropriety and, perhaps, increasing public confidence in the courts.

While the immediate issue is the incarceration of Garza under an order of civil contempt for failure to testify to the grand jury while under subpoena, the matter could, presumably, be resolved if the elected district attorney recused herself and arranged for the assignment of different investigators or if this Court ordered the recusal of the elected district attorney and the investigators.  Because the elected district attorney has refused to recuse herself and the investigators and the Court has failed to require such recusals, I respectfully dissent.

Filed: August 30, 2006