Attorney, judge rebuked by court
Failure to file appeal as promised by lawyer, now a top Ogg staffer, is called ‘deficient’
The Texas Court of Criminal Appeals rarely overturns decisions made by other state judges or questions the conduct of lawyers. But the state’s highest criminal court did both those things last week in an extraordinary rebuke of two of the Houston area’s most powerful players in the courts: Vivian King, a top lieutenant of Harris County District Attorney Kim Ogg, and Ramona Franklin, a Harris County district judge.
At issue is a serious error King made as a defense lawyer in 2015, before she joined Ogg’s staff. King promised in writing that she would file an appeal for a client but never did and did not respond to his subsequent inquiries for years. Franklin, the judge presiding over the case, then denied the man’s request to file a late appeal earlier this year.
The Court of Criminal Appeals overturned that denial last week and ruled that the man, Juan Carlos Barrera-Magana, should be able to submit the appeal after all. Its three-page opinion said in typically dry language that King’s conduct was “deficient” and that “relief is granted.”
But one of the court’s nine Republican judges, Michelle Slaughter, was so incensed by what happened that she penned a nine-page concurring opinion with much harsher words.
“While the errors that occurred in this case are particularly egregious, and are hopefully rare among attorneys across the state, this case serves as yet another reminder for all appellate attorneys of the effect of failing to stay on top of their responsibilities,” Slaughter wrote.
She added that she was “very
disappointed” in Franklin’s decision, calling it “unsupported” and “erroneous.”
Franklin declined to comment. She was first elected to the bench in 2016 and is up for reelection next year.
King is also running for a judgeship in Harris County. In an email to the Houston Chronicle, she wrote that her original promise to Barrera-Magana was the result of a typo, “an unfortunate error that I tried to correct.” She said she’d represented criminal defendants in more than 100 trials and written more than 50 appeals during her 22-year career as a defense attorney.
“I care about all the clients that I represented,” King said. She added that she is “glad” Barrera-Magana will be able to file his appeal, though prosecutors in her office had argued in legal briefs to Franklin that he should not have been able to do so.
Ogg’s office did not respond to questions about the matter.
Mandy Miller, a criminal defense attorney based in Houston who specializes in post-conviction work, said it’s not uncommon for attorneys to miss deadlines. But she called the sequence of events in Barrera-Magana’s case “mind-blowing.”
“Things happen, and you miss deadlines, and that’s OK,” Miller said. “The problem is not facing it. This could have been resolved ages ago.”
The episode is emblematic of a lack of accountability in the courts. As the Chronicle recently reported, an attorney who repeatedly missed deadlines for clients on death row is still one of the busiest and highest-earning court-appointed lawyers in the county.
The Harris County District Clerk’s Office recently discov ered dozens of “lost” appeals that the court system had failed to address. One such appeal, which was filed in 1994 and forgotten for decades afterward, finally led to the overturning of a man’s death sentence last month. The issue was first reported by the Houston Landing.
Seven years of delay
On Nov. 15, 2004, officers with the Baytown Police Department found 19-year-old Santiago Garcia shot to death near a park in Old Baytown. A decade would pass before Juan Carlos BarreraMagana was convicted of murdering him and sentenced to life in prison. Both men had been involved in a smuggling business, and witnesses testified at the trial that Barrera-Magana killed Garcia because he believed he was “going to snitch about something,” court records show.
Barrera-Magana insisted he was innocent but couldn’t afford a lawyer. So King, then a prominent Houston defense attorney, was assigned to handle his appeal.
In August 2015, King filed a 28-page appellate brief for her client that was rejected by an appeals court a few months later. But Barrera-Magana still had options, as King told him in a letter that December. For one, he could submit another appeal, known as a “Petition for Discretionary Review,” to the Court of Criminal Appeals within 30 days.
“I will file this petition for you,” King wrote to Barrera-Magana.
She never did. A year later, King left her job as a defense attorney to work as chief of staff for Ogg, who was newly elected. Meanwhile, Barrera-Magana waited in a state prison for news of the appeal. In 2019, a court clerk informed him that no appeal had been filed.
The next year, Barrera-Maga na filed a grievance against King with the State Bar of Texas, which licenses attorneys and has the power to discipline them for misconduct. Only then did King respond to him.
“It appears that my assistant made a typo that I did not catch,” she wrote to him in another letter, referring to her 2015 correspondence. “The last sentence in Paragraph 1) should have read I will not file this petition for you; but instead, it read I will file this petition for you.”
In her statement to the Chronicle, King added that she had signed the original letter without catching the typo after being “exhausted from a day in trial.” The State Bar did not discipline her.
At judge’s mercy
By this point, Barrera-Magana had decided to avail himself of one other option he had: An application for a “writ of habeus corpus,” a broader legal request for a hearing in front of a judge that technically has no deadline. Without the help of an attorney, Barrera-Magana submitted a 33page application in September 2019. He argued that he had the right to file a late appeal and that King had provided him with ineffective counsel, a violation of his Sixth Amendment rights.
Now Barrera-Magana was at the mercy of the judge in Harris County who had jurisdiction over his case and the writ application: Ramona Franklin. It would turn out to be a long wait.
In January 2022, more than two years after Barrera-Magana sent his application, and six months after the Court of Criminal Appeals ordered her to take action on it, Franklin issued her own ruling stating that “the issue of ineffective assistance of counsel needs to be resolved.” King would have to submit an affidavit answering questions about what happened.
King’s affidavit was due in a month. But the due date came and went.
“You’re the chief of staff of the DA’s office! And a judge has ordered you to do something!” said Maggie Kiely, a Harris County public defender who was eventually appointed to represent Barrera-Magana, during the proceedings. After she took up the case, Kiely said she attempted to contact King on the phone for months, with no response.
The Court of Criminal Appeals was getting impatient, too, sending Franklin two reminder letters about the case over a period of several months. Finally, in June 2023, Franklin signed a “motion to compel,” a more serious order that demanded King to either produce her affidavit or appear in court to explain why she hadn’t done so yet.
A month later, King responded — 17 months past the original deadline.
King wrote in her affidavit that she had never intended to file an appeal for Barrera-Magana because she “did not feel it was meritorious.” She recounted her “typo” in her original letter to him and said all she had done was given him “instructions” on how to submit the appeal rather than promise to file it for him — a claim directly contradicted by the letter itself.
“If you compare the letter to her affidavit, it doesn’t match up,” Kiely said. “There are parts of it that are blatantly false.”
Still, Ogg’s office asked Franklin to accept the affidavit as credible and to deny BarreraMagana’s request to file a late appeal. And Franklin agreed. In September 2023 — four years after his request was submitted — she denied it.
Ben Wolff, director of a state office that provides additional legal representation for many people facing death sentences in Texas, said the delay in the ruling might be understandable, but not the substance of it.
“I have a lot of empathy for busy judges with busy trial dockets,” Wolff said. “But what we all should hope is that judges act as judges and not blindly rubber-stamp the state’s argument.”
Soon after Franklin’s denial, Kiely filed an appeal. By November, there was a new ruling from the Court of Criminal Appeals reversing Franklin’s decision along with the concurring opinion by Judge Slaughter.
“Given the egregious behavior of counsel in this case,” Slaughter wrote, referring to King, “and the surprising findings of the habeas court (referring to Franklin), I write separately to advise others on how to avoid needless, inefficient, wasteful, and unjust post-conviction litigation.”