WR-83,168-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/28/2015 3:59:59 PM
Accepted 4/29/2015 8:53:09 AM
ABEL ACOSTA
WR-83,168-01 & WR-83,168-02 CLERK
IN THE RECEIVED
COURT OF CRIMINAL APPEALS
COURT OF CRIMINAL APPEALS 4/29/2015
OF TEXAS ABEL ACOSTA, CLERK
EX PARTE § IN THE CRIMINAL
§
§ DISTRICT COURT OF
§
LEANN WALLACE § JEFFERSON COUNTY, TX
APPLICANT’S OBJECTIONS TO THE TRIAL COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Applicant, LEANN WALLACE, by and through her attorney, Stanley G.
Schneider, files these objections to the trial court’s findings of fact and conclusions
of law and would show this Court the following:
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I.
ISSUES PRESENTED
1. Applicant was denied due process by the trial court’s
consideration as an aggravating factor the Applicant’s
assertion of her right to counsel and right to remain silent
when contacted by law enforcement prior to the filing of the
instant charges as guaranteed by the Fifth and Fourteenth
Amendments of the United States Constitution and as
guaranteed by Article I Section 10 and 19 of the Texas
Constitution.
2. Applicant’s right to effective assistance of counsel as
guaranteed by the Sixth Amendment to the United States
Constitution based on trial counsel’s failure to investigate and
present expert testimony concerning the Applicant’s risk to
the community and the unique nature of the circumstances of
this offense based on the complainant and her family’s
relationship to the Applicant and her family.
3. Applicant’s plea was involuntary based on trial counsel’s
failure to investigate and present mitigating evidence on her
behalf.
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II.
ARGUMENT AND AUTHORITIES
IN SUPPORT OF ISSUE ONE
The trial court entered findings of fact and conclusion of law and recommended
that relief be denied in this cause. This case presents the inherent problem with the
Court’s post conviction writ proceedings. Throughout the sentencing proceedings the
trial court noted that Applicant was not forthcoming when approached by the police
with the allegations. As noted in the writ of habeas corpus, the trial court questions
trial counsel and criticized Applicant for the fact that she did not immediately
confess.
The same court that commented on Applicant’s silence at the time of contact
by law enforcement determined that she has not established with proof by a
preponderance of the evidence that her silence and failure to confess contributed to
her punishment. The Court presiding at the sentencing was allowed to determine his
own conduct and interpret the record.
Throughout its findings, the trial court minimized the importance of expert
testimony and its own roll in determining the appropriate sentence.
During the sentencing hearing, the trial court repeatedly commented on the
Applicant’s failure to give a statement to law enforcement during the initial portions
of the investigation. (RR 9 -10). The trial court criticized the defendant for not doing
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the moral and legal thing by going to law enforcement and confessing. The trial court
stated that the Applicant did not do the right thing by not telling the police about her
criminal conduct. (RR 10). The trial court was repeatedly informed that she did not
meet with the police based on advice of counsel. The trial court responded by stating:
You’ve said it. She told the police she was going to give a statement. If
you said that legal counsel urged her otherwise, that’s okay. There is no
harm in that. The point being, though that I want to address that th e
police came to you, not because of you, but because of the child who
gave you an opportunity to first and you didn’t accept that. I don’t know
what you were thinking but his house of cards was going to fall
ultimately.
(RR 13).
The trial court’s comments concerning the aggravating nature of the
Applicant’s failure to confess to the police when contacted constitutes an express
consideration of her Fifth Amendment right to remain silent based on the advice of
counsel. When the Court was informed that she did not keep her appointment with
the police to be questioned about an allegation of criminal conduct, the trial court
expressly stated that she should have not followed her lawyer’s advice and that to
confess her criminal conduct was the moral thing to do and not follow advice of
counsel. In Salinas v. Texas, 133 S. Ct. 2174 ( 2013), the Supreme Court again
recognized that the privilege against self-incrimination “is an exception to the general
principle that the Government has the right to everyone’s testimony.” Garner v.
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United States, 424 U. S. 648, 658, n. 11, 96 S. Ct. 1178, 47 L. Ed. 2d 370 (1976). To
prevent the privilege from shielding information not properly within its scope, we
have long held that a witness who “‘desires the protection of the privilege . . . must
claim it’” at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317
U. S., at 427, 63 S. Ct. 409, 87 L. Ed. 376). See also United States ex rel. Vajtauer
v. Commissioner of Immigration, 273 U. S. 103, 113, 47 S. Ct. 302, 71 L. Ed. 560
(1927); Hoffman v. United States, 341 U. S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118
(1951).
The express invocation requirement also gives courts tasked with evaluating
a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons
for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980)
(“A witness may not employ the privilege to avoid giving testimony that he simply
would prefer not to give”); Hutcheson v. United States, 369 U. S. 599, 610-611, 82
S. Ct. 1005, 8 L. Ed. 2d 137 (1962) (declining to treat invocation of due process as
proper assertion of the privilege).
Normally, as pointed out by Salinas, a defendant normally does not invoke the
privilege by remaining silent. In Roberts v. United States, 445 U. S. 552 (1980), the
Supreme Court rejected the Fifth Amendment claim of a defendant who remained
silent throughout a police investigation and received a harsher sentence for his failure
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to cooperate. In ruling, the Court explained that “if [the defendant] believed that his
failure to cooperate was privileged, he should have said so at a time when the
sentencing court could have determined whether his claim was legitimate.” Id., at
560. See also United States v. Sullivan, 274 U. S. 259, 263-264 (1927). A witness
does not expressly invoke the privilege by standing mute.
Thus, in Minnesota v. Murphy, 465 U.S. 420 (1984), the Court held that the
defendant’s self-incriminating answers to his probation officer were properly
admitted at trial because he failed to invoke the privilege. 465 U. S., at 427-428. In
reaching that conclusion, the Supreme Court rejected the notion “that a witness must
‘put the Government on notice by formally availing himself of the privilege’ only
when he alone ‘is reasonably aware of the incriminating tendency of the questions.’”
Id., at 428, (quoting Roberts, supra, at 562, Brennan, J., concurring)). See also
United States v. Kordel, 397 U. S. 1, 7 (1970). The Fifth Amendment guarantees that
no one may be “compelled in any criminal case to be a witness against himself”; it
does not establish an unqualified “right to remain silent.” A witness’ constitutional
right to refuse to answer questions depends on his reasons for doing so, and courts
need to know those reasons to evaluate the merits of a Fifth Amendment claim.
In the instant case, despite knowing the Applicant’s reasons for not confessing,
this Court repeatedly criticized her, chastised her and placed moral blame for her
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refusal to meet with the police and confess her criminal conduct. As evidence by Dr.
Gripon’s testimony this was a case that was not normal or ordinary. The Applicant
is not a bad person. Applicant is a good person who did bad things and that cannot
be viewed in a vacuum. The trial court’s expressed consideration of her refusal to
meet with the police and confess her crimes prior to the filing of any criminal charges
violated the Fifth Amendment of the United States Constitution. The trial court
missed the point and was able to reconstruct the proceedings to support his
conclusion that she was not harmed. The trial court failed to address any of the legal
authority presented that supports Applicant’s claim for release.
III.
ARGUMENT AND AUTHORITIES
IN SUPPORT OF ISSUE TWO AND THREE
Trial counsel admitted that he did not investigate the beneficial effect of expert
testimony as a mitigating factor in this case. Trial counsel stated in his affidavit that
the mitigating evidence was sufficient and an expert was not necessary. Only after
a complete investigation can an attorney make a sound strategic decision. Only after
reviewing the literature or communicating with an expert can an attorney that an
expert is not needed to present or explain the dynamics of a fact pattern.
As evidence by the affidavits presented and Dr. Gripon’s testimony, trial
counsel’s strategic decisions were made without investigation or research of the
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science available that made a difference. The trial court stated that Dr. Gripon’s
testimony in retrospect would not have changed his opinion. Dr. Gripon’s testimony
clearly shows that Applicant was different from others and the situation presented
herein was unique.
The relationship between Applicant and the complainant was unique. Trial
counsel decided not to present that testimony. The importance of that testimony is
evidence by the affidavits submitted detailing the relationship with the complainant
and the problems that arose because of that relationship the families and how the
constant gifts and presence of the complainant changed the family dynamics. Dr.
Edward Gripon, a forensic psychiatrist stated that based on his review of the
numerous records that his opinions are as follows:
1. Leann Wallace does not fit any known profile of a sexual
predator.
In fact, after reviewing this information, it is obvious that this
conduct emerged from a very intense and intertwined relationship
involving the members of the two families.
Apparently, the very close relationship between Leann Wallace
and the victim, was encouraged by a number of parties and,
unfortunately, developed a sexual component.
Leann Wallace continued to teach throughout the approximately
4 years, that this relationship is stated to have occurred and,
during that time, she was not involved in any inappropriate
manner with any other student/youth .
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This would appear to clearly indicate that this lady is not a
sexual predator but that the relationship itself, arising outside the
school setting, evolved into the ultimate physical involvement
between the two individuals.
2. The ultimate discovery/outcry in regard to this matter seems to
have occurred sometime after the relationship ended and in close
proximity to two separate factors.
One was the involvement of the victim in some type of group
setting in which individuals were encouraged to “confess/state
any past issues involving “guilt.”
Equally of importance, it also seems to be approximate to the
time , in which there was a distancing/dissolution of a friendship
between the victim and Leann Wallace’s youngest daughter.
3. It is assumed and stated in the trial transcript that the victim has
suffered “physical and emotional” damage of an extreme
level/nature because of this relationship.
Obviously, I’ve had no contact with the victim but I would state,
based on clinical experience, that is an assumption that may not
be based upon fact.
Historically, I’ve found clinically, that relationships involving
intense feelings even if sexual in nature are frequently not
“emotionally damaging” to the extent that many laypeople
assume.
4. This relationship began as an intense personal involvement
involving the two individuals and progressed to a relationship in
which sexual activity was a part of the equation.
In my opinion, based on regional psychiatric probability, if the
relationship had remained one of a classroom i.e. teacher/student
relationship, then it would never have progressed to the point
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of sexual involvement. There is significant evidence that the
relationship “developed” based upon the extremely close and
continued involvement of the two families and is reflective of
significant psychodynamic interactions between the two groups.
5. Leann Wallace does not pose a continued threat to the
community in any predictable fashion.
6. It is obvious, based on a review of this information and an
interview Of Leann Wallace, that this relationship was a very
intense and codependent relationship that, unfortunately, became
sexual as well.
7. In conclusion, although this involved a woman who was a
teacher and a student, it is not based upon, in any fashion, a
teacher/student relationship but, instead, is based upon an intense
personal relationship, apparently encouraged by both families,
that unfortunately crossed a significant boundary.
8. Also, I would add that given the intense emotion apparently
present between these two individuals, a severe sentence
unilaterally imposed upon Leann Wallace may have significant
negative implication, ultimately, upon the alleged victim.
Dr. Gripon’s habeas testimony presented a complete picture of Applicant and
separated Applicant from other sex offenders. He attempted to explain the
circumstances of the offense. The trial court’s findings reflect his own bias.
The Sixth Amendment to the Constitution of the United States guarantees the
right to counsel. Moreover, the Supreme Court has stated that the right to counsel
includes the right to effective assistance of counsel. McMann v. Richardson, 397
U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L. Ed.2d 763 (1970).
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In order to provide effective assistance of counsel, an attorney must have a firm
command of the operative facts and of the relevant law. As was stated by the Court
of Criminal Appeals in Jackson v. State, 766 S.W.2d 504, 509 (Tex. Crim.
App.1985):
A criminal defense lawyer must have a firm command of the facts of the
case as well as governing law before he can render reasonably effective
assistance to his client. Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim.
App.1983); Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App.1982);
Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). The
responsibility of having a firm command of the facts of the case as well
as governing law in order to assist and advise one criminally accused is
not one placed on the State. See Woolridge v. State, 653 S.W.2d 811,
n.7 (Tex. Crim. App. 1983).
(Emphasis in original). See also Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim.
App. 1978) (it is “fundamental that an attorney must acquaint himself not only with
the law but also the facts of a case....”).
In Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), the Court of
Criminal Appeals was faced with a case where a decision to not call an expert was
dependent on the financial condition of the defendant. The court determined that if
an investigation of medical records to determine a child’s cause of death is essential
to the presentation of an effective defense, counsel cannot decline to conduct such an
investigation based on his client’s lack of financial resources. It relied on decisions
by the Seventh Circuit in Brown v. Sternes, 304 F.3d 677, 693-98 (7th Cir. 2002)
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(noting that “attorneys have an obligation to explore all readily available sources of
evidence that might benefit their client[,]” and concluding that counsel who had
access to defendant’s medical records “had a professional obligation to do an in-depth
investigation into their client’s deep-seated psychiatric problems”; failure to do so
was ineffective assistance of counsel); see also Bouchillon v. Collins, 907 F.2d 589,
595-97 (5th Cir. 1990) (trial attorney who failed to do any investigation into client’s
medical and mental history after he had been informed of prior hospitalizations and
who may have persuaded client to plead guilty and accept plea offer was
constitutionally ineffective for failing to make adequate investigation when it did not
appear that defendant had any other available defense). The court ruled that if any
reasonable attorney appointed to represent an indigent defendant would be expected
to investigate and request expert assistance to determine a deceased infant’s cause
of death, a privately retained attorney should be held to no lower standard. The
Briggs court stated:
The vital guarantee of the Sixth Amendment would stand for little if the
often uninformed decision to retain a particular lawyer could reduce or
forfeit the defendant’s entitlement to constitutional protection. . . . We
see no basis for drawing a distinction between retained and appointed
counsel that would deny equal justice to defendants who must choose
their own lawyers.
Briggs, 187 S.W.3d at 469 (quoting Cuyler v. Sullivan, 466 U.S. 335, 344, 100 S. Ct.
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1708, 64 L. Ed. 2d 333 (1980). In Wright v. State, 223 S.W.3d 36 (Houston [1st
Dist.] 2006, pet. ref’d), the First Court of Appeals applied Briggs counsel was
ineffective because of his nonstrategic decision in failing to seek an expert’s opinion.
Clearly, strategic choices made after a thorough investigation of the law and
facts relevant to plausible options are virtually unchallengeable under ineffective
assistance of counsel claims. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim.
App.), cert. denied, Kunkle v. State, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993). However,
strategic choices made after a less than complete investigation because the State
withheld evidence undermined the Defendant right to the effective assistance of
counsel.
In this case, trial counsel did not present any expert testimony that examined
the risk that the Applicant posed to the community or attempt to explain the dynamics
of the relationship between the Applicant and the complainant. The question that was
never investigated or addressed by trial counsel was how a person like Applicant who
provided so much help and guidance to so many cross the line and abuse a single
child. The conduct as set out at the sentencing hearing demanded an explanation.
Without an examination of the relationship from the outside looking inward, the
Court was presented with only half the picture. The sentence imposed expressed a
punishment based on the offense conduct a mitigating explanation. An expert could
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have provided that explanation. Trial counsel failed to investigate nor present that
explanation.
Based on the Supreme Court’s decision in Strickland v. Washington,466 U.S.
668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), that she was denied effective
assistance of counsel based on trial counsel’s failure to obtain the assistance of an
expert witness to assist in the preparation of a mitigation case for punishment. In
order to “establish deficient performance, an accused must demonstrate that counsel’s
representation ‘fell below an objective standard of reasonableness.’” Wiggins v.
Smith, 539 U.S. 510, 521, 156 L. Ed. 2d 471, 123 S. Ct. 2527 (2003) (quoting
Strickland, 466 U.S. at 688). Scrutiny of counsel’s performance must be highly
deferential, and we must presume that counsel’s conduct falls within the wide range
of reasonable professional assistance. See Soffar v. Dretke, 368 F.3d 441, 471 (5th
Cir. 2004). Reviewing courts must make every effort “‘to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.’” United States
v. Harris, 408 F.3d 186, 189 (5th Cir. 2005) (quoting Strickland, 466 U.S. at 689). To
this end, a “conscious and informed decision on trial tactics and strategy cannot be
the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen
that it permeates the entire trial with obvious unfairness.” Johnson v. Dretke, 394
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F.3d 332, 337 (5th Cir. 2004).
“[S]strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations
on investigation.” Wiggins, 539 U.S. at 521 (internal quotation marks and alteration
omitted) (quoting Strickland, 668 U.S. at 690-91). When assessing the
reasonableness of an attorney’s investigation, we must “consider not only the
quantum of evidence already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.” Id. at 527. To establish that
an attorney was ineffective for failure to investigate, a petitioner must allege with
specificity what the investigation would have revealed and how it would have
changed the outcome of the trial. See United States v. Green, 882 F.2d 999, 1003 (5th
Cir. 1989).
Even an experienced lawyer needs the assistance of an expert to prepare a case
for trial that has unusual fact or there are circumstances that need to be explained.
See Wiggins, 539 U.S. at 536 (finding that counsel is not in a position to “make a
reasonable strategic choice” when his “investigation supporting [that] choice was
unreasonable”); Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“Tactical
decisions must be made in the context of a reasonable amount of investigation, not
in a vacuum.”); Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) (finding that
15
“our usual deference to tactical decisions is not relevant” when the decisions are
based on “information that was faulty because of [ ] ineffective investigatory steps”).
Thus, without conducting an investigation as to the psychological basis for her
conduct, trial counsel could not properly advise Petitioner to enter a plea of guilty to
the offense contained in the indictment. McMann v. Richardson, 397 U.S. 759 (1970)
Tollet v. Henderson, 411 U.S. 258 (1973); Henderson v. Morgan, 426 U.S. 63&
(1976): Hill v. Lockhart, 474 U..S. 52 (1985). In this case, trial counsel made a
decision that included not to present evidence that explained the relationship between
the families and failed to consult with an expert to explain Applicant’s mental state.
The testimony of the expert and Applicant’s family would have explained her conduct
and her relationship to the complainant and would have tended to mitigate the
punishment assessed. Thus, at the very least, Applicant is entitled to a new
punishment hearing where the testimony of an expert can be presented.
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this Court
recommend that the Court of Criminal Appeals grant her requested relief and grant
her a new punishment hearing and any other relief for which she may be entitled.
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Respectfully submitted,
Schneider & McKinney, P.C.
/s/ Stanley G. Schneider
Stanley G. Schneider
Texas Bar No. 17790500
440 Louisiana
Suite 800
Houston, Texas 77002
Office: (713) 951-9994
Fax: (713) 224-6008
E-mail: stans3112@aol.com
ATTORNEY FOR APPLICANT
LEANN WALLACE
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the attached and foregoing
Applicant’s Objections to the Trial Court’s Finding of Fact and Conclusions of Law
has been mailed and/or hand delivered on the Appellate Section of the Jefferson
County District Attorney’s Office, 1001 Pearl Street, Beaumont, Texas 77701 and the
State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711 on this the 28th day
of April, 2015.
/s/ Stanley G. Schneider
Stanley G. Schneider
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