10th Court Chief Justice recused as 'impartial'

Huntsville judge defends terms of jury charge

Waco - The bloody words are brutally descriptive as they flow across the prim white page of the appeals court's decision.

John Ray Falk, Jr., convicted murderer

The riding boss lay twisted, bloodied, her body broken and struggling to retain the spark of life after the speeding municipal utilities truck struck her horse, knocked her for a looping arc over the hood, and broke her neck when she landed on its roof.

A city employee who ducked for cover in the grease pit next to the onion patch at the Wynne Unit near downtown Huntsville told jurors how he and other witnesses tried to wipe the blood off the middle-aged corrections officer's face, about the lifeless look in her unconscious eyes, how the uncontrollable bleeding made her breath ragged, how she “gurgled” as they waited for an ambulance to take her to medical assistance.

He told Susan Canfield that he – and the others who sought to comfort her as she lay dying - would pray for her.

Minutes later, he learned that she had died of the injuries she suffered after an inmate already serving a life term for murder struggled with her for possession of her rifle, then held the reins while her mount spun madly, trying to escape the truck she never saw coming at her.

It all happened one day in 2007 when Jerry Duane Martin and John Ray Falk bowed up in the onion patch and ran for the barbed wire fence that separates the truck garden from the city's maintenance barn. The riding boss emptied her handgun, then fumbled, and lost the desperate fight with Falk for possession of her rifle.

The escape didn't last long. Both men were back in custody in a short time.

Polunksy Unit houses death row and dangerous prisoners

A Huntsville jury sentenced Martin to death for capital murder because he attacked the corrections officer with a motor vehicle, which he used as a deadly weapon to take her life.

A Brazos County jury sitting at Bryan on a change of venue from the 278^th District Court at Huntsville could get the case on Falk as early as Monday, if no further appeals delay their deliberations of four elements that came under intense controversy in the 10^th District Court of Appeals in Waco earlier this week.

First, Falk engaged in a conspiracy with Martin to commit felony escape, according to the indictment charging him with capital murder of a corrections officer. Secondly, when Martin hit the riding boss's horse with the truck he stole to make the escape, he intentionally and knowingly caused her death. Thirdly, it was a murder committed in furtherance of the conspiracy to commit felony escape.

Under the law of parties in capital cases, a party to an offense is culpable for the act of murder by being involved in the criminal conspiracy that caused the death.

A fourth element included by 278^th District Judge Kenneth Keeling requires jurors to find that Falk “should have anticipated” that Martin's actions “would intentionally and knowingly cause the death” of the corrections officer.

If jurors cannot agree unanimously on all four elements, they must acquit Falk of capital murder and consider a charge of felony murder, which carries the maximum penalty of a life sentence upon conviction.

Falk is already serving a life term for a murder committed in Matagorda County in 1986. He and Martin are currently incarcerated at the Polunsky Unit near Livingston, which includes about 300 Death Row prisoners, as well as an equal number of lifers serving out the terms murder sentences. Of its 3,000 inmates, about half are serving terms of 40 years or more, according to figures released by the Texas Department of Criminal Justice, Institutional Division.

Prosecutor David Weeks appealed the inclusion of that fourth element in the judge's jury charge. He asked the 10^th District Court of Appeals at Waco to stay the case until the Court of Criminal Appeals at Austin could rule on whether the fourth element should be included in the instructions to the jury.

The Tenth District Court of Appeals denied the prosecutor's application for mandamus relief. Associate Justice Rex Davis, in writing the unanimous decision, said the Court found the case law to be “unsettled” in the matter, but nevertheless entered a “strong opinion” held by the entire court Texas law does not support including the fourth element in the jury charge that the state must prove that Falk “should have anticipated the specific manner and means by which Martin caused the death of (Mrs.) Canfield.”

None of this could take place until Chief Justice Tom Gray agreed to order his own recusal due to a possibility that he might be “impartial.”

Judge Keeling cited three elements to his motion for the Chief Justice's removal from the case.

First, he said, the appeal Weeks filed was addressed to the Court of Criminal Appeals at Austin.

“That's not where it was filed.”

Second, “...David Weeks was personally very active in supporting the recent re-election campaign of Chief Justice Gray. Prior to that campaign, Mr. Weeks actively supported efforts to unseat former Justice Felipe Reyna...”

Third, the judge argued, relations between himself and Chief Justice Gray have “deteriorated significantly” because Judge Keeling has “actively sought to have the legislature remove Walker County from the jurisdiction of the Tenth Court of Appeals.” The judge told legislators he wants appeals to be heard by either of the two District Courts of Appeal that sit at Houston.

Furthermore, “Chief Justice Tom Gray has not only personally appeared before the Legislature to oppose that change, but had taken offense over the issue.”

Mr. Justice Gray gave his assent. He recused himself.

But he didn't go without a fight.

“I reject that notion, that suggestion, that allegation with every fiber of my being.”

However, he concluded, “There is no need to give a defendant in a capital murder case another issue for subsequent appeal...”

Mr. Justice Doug Lang of the 5^th District Court of Appeals at Dallas visited the 10^th Court at Waco, and sat in on the appeal.

In a conviction for capital murder in which a defendant is sentenced to death, an appeal is automatic.

So far, the Falk trial has cost Walker County taxpayers an estimated $500,000 - $150,000 for expert testimony and investigations, and the remaining $300,000 for attorneys' fees.

Martin's trial, which was heard at the courthouse in Huntsville, cost taxpayers an estimated $400,000.

In pre-trial motions, defense attorneys objected to TDC corrections officers wearing their traditional gray uniforms in court. Civilian attire would not tend to prejudice jurors unduly, attorneys argued in the pleadings, an objection which the judge took under advisement, according to published reports.

The Walker County Commissioners Court set the 2012-2013 tax rate for maintenance and operations at an increased rate of 15.30 percent, a sum that will raise taxes on a $100,000 home by $84.30.