WR-84,163-01 WR-84,163-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/28/2015 11:12:16 AM
Accepted 12/29/2015 4:24:35 PM
IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA
CLERK
AT
December 29, 2015 AUSTIN, TEXAS
EX PARTE KYLE CARPENTER DIETRICH
WRIT NO. WR-84,163-01
IN THE COURT OF CRIMINAL APPEALS
********
CAUSE NO. 1072796-A
IN THE 178TH DISTRICT COURT
HARRIS COUNTY, TEXAS
STATE’S OBJECTIONS TO THE TRIAL COURT’S
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
RECOMMENDING THAT RELIEF BE GRANTED
Comes now the State of Texas, through the undersigned Assistant District
Attorney, and respectfully objects to the trial court’s Findings of Fact and Conclusions of
Law and Recommendation and Order entered on October 9, 2015, recommending that
relief be granted in the form of a new trial. In support, the State would show the
following:
I.
Procedural History
On June 20, 2006, Kyle Carpenter Dietrich, the applicant, was indicted for
aggravated sexual assault of a child in cause no. 1072796 (“the primary case”).
Charles Thompson (“Thompson”) and John Morgan (“Morgan”) represented
the applicant at the trial level. Todd Keagle, former Harris County prosecutor,
represented the State at trial. The Honorable Mary Bacon presided over the primary
trial.
The State presented evidence at the guilt/innocence phase that the first time
the applicant sexually assaulted the complainant was in early May of 2000 when she
was thirteen (13) years old; that the applicant told the complainant they were going to
Wal-Mart, but drove her onto a dirt road and parked in a grove of trees out of sight
from the roadway; that he grabbed the complainant by the back of her head by the
hair and forced his penis into her mouth; that he continued to push her head up and
down on his penis; that when the applicant climaxed, he shoved the complainant’s
head so far down on his penis that she gagged and his semen came out of her nose;
that the applicant instructed her not to tell her mother about the molestation in such a
manner that she interpreted his directive as a death threat; that they continued to Wal-
Mart where the applicant bought her a Coke to get the taste out of her mouth; and
that she did not tell anyone about the assault at the time (III R.R. at 22-27, 32, 39-40).
The complainant also testified at trial that a week later she and the applicant
were at home alone when he called her into his bedroom; that he removed her clothes
and penetrated her vagina with his penis; that when she began crying and told him
that it hurt, he placed a pillow over her head; that she did not tell her mother, Linda
Dietrich, about this assault either, because she feared that the applicant would kill her;
2
that the applicant continued to rape her for the next two years; that sometimes he
assaulted her about three times a week and other times several months passed without
an assault; that she estimated that the applicant had sexual intercourse with her about
fifty (50) times and anal sex once; that the applicant forced her to perform oral sex on
him about twenty-five (25) times; that after suffering this abuse for two years, she
moved into her biological father’s home to escape; that she remained there for about
eight (8) months, despite the fact that it was difficult living with her alcoholic father;
that while she was living with her father, the applicant suffered a serious head injury
that left him in a coma for a while; that when he came out of the coma, he had to
relearn many basic human functions such as eating and walking; that given the
applicant’s condition, she figured that he could no longer hurt her, so she decided to
move back to her mother’s house to help care for her little brothers; and that when
she was seventeen (17) years old, the applicant managed to rape her one more time
despite his injury (III R.R. at 15-17, 27-28, 33-36, 41-42, 47, 61-62).
On June 29, 2007, following a jury trial in which the applicant was found guilty
of aggravated sexual assault of a child, the jury assessed his punishment at thirty-three
(33) years confinement in the Texas Department of Criminal Justice – Institutional
Division.
On July 30, 2007, the applicant, represented by Clyde Williams, filed a motion
for new trial in the primary case alleging that: (1) the evidence was insufficient to
establish venue in Harris County; (2) trial counsel entered into an agreement with
3
Linda Dietrich that created a conflict of interest; and (3) trial counsel provided
ineffective assistance at trial by failing to call certain witnesses and present “material
evidence” (Supp. C.R. at 1-30).
The Honorable Roger Bridgwater presided over the motion for new trial
hearing held from August 31, 2007 through September 7, 2007.
On September 7, 2007, after receiving evidence and argument on the claims in
the applicant’s motion for new trial, Judge Bridgwater denied this motion (Supp. C.R.
at 4) (X R.R. at 69-70).
On March 31, 2009, the Fourteenth Court of Appeals delivered an unpublished
opinion affirming the trial court’s judgment in cause number 1072796. Dietrich v. State,
No. 14-07-005410-CR (Tex. App. – Houston [14th Dist.] 2009)(not designated for
publication).
On October 28, 2009, the Court of Criminal Appeals refused the applicant’s
petition for discretionary review.
On January 14, 2011, habeas counsel Josh Schaffer filed an application for writ
of habeas corpus on the applicant’s behalf, cause number 1072796-A, challenging the
applicant’s conviction in the primary case on the grounds of ineffective assistance of
counsel in the guilt and punishment stages of trial.
On January 26, 2011, the trial court entered an order designating issues that
needed resolution in the instant habeas proceeding.
4
On June 6, 2013, the applicant filed an amended application for writ of habeas
corpus, cause number 1072796-A, alleging grounds of ineffective assistance of
counsel in the guilt and punishment stages of trial.
On March 5 and 6, 2015, The Honorable David Mendoza, presiding judge of
the 178th District Court of Harris County, Texas, conducted an evidentiary hearing as
part of the instant habeas proceeding, which included the testimony of trial counsel,
Charles Thompson.
On October 9, 2015, the trial court signed the applicant’s findings of fact and
conclusions of law, and recommended that habeas relief be granted in the form of a
new trial.
The State respectfully disagrees with the trial court’s ultimate recommendation
granting habeas relief. The State objects to the trial court’s findings of fact and
conclusions of law which are not supported by the record or established law.
II.
Applicable Law
The trial court’s findings and conclusions are not supported by the law, the
evidence elicited at trial, and the evidence from the habeas proceedings. This Court
has stated:
5
It is a fundamental principle of our habeas corpus law and regularly
stated that under the procedure authorized by Article 11.07, if the trial
court convenes a hearing, elicits testimony and thereby develops facts,
the Court of Criminal Appeals is not bound by the trial court's findings
and conclusions of law. Accordingly, this Court is obligated to determine
if the record developed supports the trial judge's findings. Ex parte Young,
479 S.W.2d 45 (Tex. Crim. App. 1972). If the record will not support the
trial judge's conclusions, then this Court may make contrary findings. Ex
parte Davila, 530 S.W.2d 543 (Tex. Crim. App. 1975); Ex parte Bagley, 509
S.W.2d 332 (Tex. Crim. App. 1974); Ex parte Williams, 486 S.W.2d 566
(Tex. Crim. App. 1972).
Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989).
Because the record does not support the trial court’s findings of fact and
conclusions of law in the instant case, the State urges the Court of Criminal Appeals
to make contrary findings of fact, and deny habeas relief in the instant cause.
III.
The trial, appellate, and habeas records in the instant case do not support the
trial court’s October 9, 2015 recommendation for a new trial, and the State specifically
objects to the trial court’s findings of fact and conclusions of law regarding defense
counsel, Charles Thompson; the challenges for cause in voir dire; the admission of
testimony regarding the applicant’s and his ex-wife’s prior drug use; the impeachment
of the complainant; the decisions to call certain witnesses; the extraneous sexual
assaults; the investigation of an out-of-state case; the advice to the applicant in the
punishment phase; and whether defense counsels’ conduct was deficient in any
manner that prejudiced the applicant.
6
EXPERIENCE OF CHARLES THOMPSON
Trial Court’s Finding of Fact 31
Thompson left employment as an Assistant District Attorney at the
Harris County District Attorney’s Office in 2005 because of a lack of
productivity (1 H.R.R. 20). He had been a criminal defense lawyer less
than two years when he tried applicant’s case (1 H.R.R. 21).
The trial court makes no finding about, and seemingly fails to consider,
Thompson’s extensive trial experience prior to representing the applicant in the
primary case. As a prosecutor for eight (8) years, Thompson tried sixty (60) cases to a
jury, about twenty-five (25) of which were of a sexual nature (II W.H. 95).1 In his
criminal defense practice from 2005 until the applicant’s trial, he had already had nine
(9) trials, three (3) which were of a sexual nature (II W.H. at 96).
In fact, John Morgan, who was originally hired by the applicant, brought
Thompson in as lead attorney because of his prior experience and expertise (II W.H.
at 97). Morgan testified on this issue during the hearing on the applicant’s motion for
new trial, specifically that Thompson was brought in to be lead counsel because he
had “much more experience than [Morgan] did on this type of case;” that the
applicant agreed with Morgan’s decision to bring in Thompson; and that although
Morgan had been a lawyer for thirty-six years and had trial experience, he thought
they needed to “bring in a pro” (VII R.R. at 16 and 25-26).
1
References to the court reporter’s record from the post-conviction writ hearing are denoted
as “W.H.”
7
Thus, Finding of Fact 31 ignores much of the record on this issue, and is
misleading as to Thompson’s actual background and experience.
ADVICE ON WHETHER TO ACCEPT THE STATE’S PLEA OFFER
Trial Court’s Finding of Fact 35
The State offered applicant a plea bargain of five years deferred
adjudication probation for an offense that carried a ten-year
requirement to register as a sex offender (1 H.R.R. 41). Applicant
rejected the plea bargain based on Thompson’s advise that it was a
“very triable case” (1 H.R.R. 42, 44).
The State objects to the last sentence in the Trial Court’s Finding of Fact 35,
because the finding only includes part of the advice Thompson gave the applicant
regarding the decision to plead guilty. Thompson testified more fully about this issue
in the writ evidentiary hearing during his cross-examination, as follows:
STATE: Let’s talk about – a little bit about the offer that Mr.
Dietrich was made in this case. You advised him
that you felt like it was a defensible case; is that
correct?
THOMPSON: That’s correct.
STATE: Do you think that’s reasonable advice based on the
State’s evidence at the time?
THOMPSON: Yes.
STATE: And you also advised him that you thought the
State’s offer five years deferred adjudication and only
having to register as a sex offender for ten years was
a really good offer?
8
THOMPSON: Yes. I communicated the offer to him, and that was
something he should consider.
STATE: Do you think that’s reasonable advice under the
circumstances?
THOMPSON: Yes. And I - - though I operated kind of under the -
- you know, it’s - - you work for the client and a big
decision like that I would leave to the client.
STATE: Well, of course. You can’t make somebody plead
guilty, right?
THOMPSON: Correct.
(II W.H. at 108-109).
Therefore, the trial court’s finding that the applicant’s decision was based on
only a portion of the advice given by defense counsel is not supported by the habeas
record.
THOMPSON’S SECOND AFFIDAVIT
Trial Court’s Finding of Fact 40
Thompson met with habeas prosecutor Baldwin Chin twice (1 H.R.R.
77). Thompson testified that Chin suggested what to say in the affidavit
and did not tell him that Chin already had filed an answer on behalf of
the State (1 H.R.R. 73, 80). Thompson gave the affidavit in February of
2014, three years after his first affidavit and almost seven years after the
trial (1 H.R.R. 73, 80).
The State objects to the portion of Trial Court’s Finding of Fact 40 that the
habeas prosecutor “suggested” to Thompson what to say in his affidavit. A review of
Thompson’s testimony in the writ hearing on the pages cited in the above finding
9
reveals no testimony to support this finding, and only provides details about
Thompson’s meetings with the prosecutor, the timing of his second affidavit, and
whether Thompson knew if the State had filed an answer to the instant writ
application (I W.H. at 73, 77, and 80).
The issue of whether the habeas prosecutor “suggested” to Thompson what to
put in his second affidavit was addressed during the writ evidentiary hearing. In fact,
a review of Thompson’s testimony reflects that, despite habeas counsel’s attempts to
characterize Thompson’s meetings with the habeas prosecutor as suspicious,
Thompson was clear that the issues in the writ were discussed and he executed his
second affidavit after these discussions.
This issue is first addressed in the exchange between habeas counsel and
Thompson, as follows:
SCHAFFER: You said as much in your second affidavit, correct?
THOMPSON: Yes.
SCHAFFER: Okay. Did Mr. Chin suggest to you that there was
something wrong with your first affidavit?
THOMPSON: No. I mean, in having done this in the past, either
side that wants to talk to me I’ll talk to them, either
side that wants an affidavit, I do an affidavit for
them, and Mr. Chin asked me and I said I would.
SCHAFFER: Okay. Did he type the affidavit while you were in
his office?
10
THOMPSON: Not to the final form. I mean, as we discussed
things, he would type, which I assume he was
typing on the affidavit, and then probably the next
day I got an e-mail from Mr. Chin with the affidavit
attached.
(I W.H. at 79)(emphasis added). Then, Thompson more directly explains what he
means by the word “suggest” in the following lengthy exchange with habeas counsel:
SCHAFFER: Did he [Chin] suggest to you at all what to say in
your second affidavit?
THOMPSON: Well, yeah, I mean, we discussed what - - what the
answers would be.
SCHAFFER: Did he suggest to you what the answers should be?
THOMPSON: No. Did I ever feel like he was telling me you
need to say X, Y or Z, no.
SCHAFFER: No, I didn’t ask did he tell you what to say. I asked
did he ever suggest to you what the answers should
be?
STATE: Your Honor, I’m going to ask that any instructions
to the witness come from the court and not form
[sic] habeas counsel.
COURT: Well, he didn’t answer his questions, he did say - -
suggest in the first question. But anyway, go ahead.
SCHAFFER: Did Mr. Chin ever suggest to you what your second
affidavit should contain?
THOMPSON: I would have to say yes in the sense he looked at
whatever the issue was and he’d go, “Well, why
don’t you read this part,” you know, and, “what
does that mean to you? Does it mean this, does
it mean that.” So, I would have to answer, yes.
COURT: When you say, “Why don’t you read this part,” this
part of the record?
11
THOMPSON: Record. Yes, sir. I apologize, your Honor.
COURT: That’s all right.
SCHAFFER: Would he suggest to you explanation or strategies
that you might have had that were not included in
the first affidavit?
THOMPSON: No, in that - - I mean, it was more of let’s
expand on this.
(I W.H. at 81-83)(emphasis added); see also (II W.H. at 12-13)(another exchange with
intermittent use of words “suggest” and “discuss”).
Finally, during Thompson’s cross-examination, he clarified for the record the
circumstances of providing his second affidavit:
STATE: So during these discussions, were you - - I wasn’t
there, so were you bantering back things, back and
forth? I mean, you testified earlier that he was
showing you parts of the record and then you’d
discuss it; is that right?
THOMPSON: Correct.
STATE: So can you explain - - because you can see how it
sounds kind of bad to say he suggested something to
you. Can you see how that of sounds negative (sic)?
THOMPSON: Yes, I understand. The - - I mean, it was - - I mean,
he’s sitting behind his desk and I’m sitting in one of
the guest chairs, and we’re - - we’re talking about
different things. And, as you do that, he would
type it a certain way, and then maybe there were
changes made or what have you.
It was definitely give and take, and at no time was
- - did I feel like, by either counsel, that they were
saying you have to say this or else, you know.
STATE: Great. And that would be improper, right?
12
THOMPSON: Correct.
STATE: We all agree that would be improper, right?
THOMPSON: Yes.
STATE: And so if Mr. - - if you - - if in these discussions he
talked - - you talked about potential strategies and
things like that, that would not on its face be
improper, would it?
THOMPSON: I don’t believe so.
STATE: And so I guess you really answered my question, but
just to wrap up this area, did Mr. Chin ever tell you
what to put in your affidavit or what to say?
THOMPSON: No. And he said I was - - both counsel said I was
free to make any changes that I felt appropriate.
STATE: And did you feel like you were free to do that?
THOMPSON: In both instances, yes.
(II W.H. 102-104)(emphasis added).
Therefore, the State objects to the portion of Trial Court’s Finding of Fact
No. 40 that the habeas prosecutor “suggested” to Thompson what to say in his
affidavit, as it unfairly characterizes the circumstances of Thompson providing his
second affidavit and ignores much of the habeas record where this is explained in
detail.
13
VOIR DIRE PROCEEDINGS
Trial Court’s Finding of Fact 44
The court asked [Linda] McKay the hypothetical question of whether
she could tell her sister if she were on a jury that acquitted someone of
aggravated sexual assault of a child; she said that she could (2 R.R.
186). This answer did not rehabilitate her, as the question presented
was unrelated to her ability to be fair and impartial.
Trial Court’s Finding of Fact 45
It was the role of the prosecutor, not the court, to try to rehabilitate
McKay. Post v. State, 936 S.W.2d 343, 347 (Tex. App. ─ Fort Worth
1996, pet. ref’d), overruled on other grounds, Justin Jay Shot With Two
Arrows v. State, 64 S.W.3d 606 (Tex. App. ─ Fort Worth 2001, no pet.);
see also Burke v. State, 2012 WL 2415524, *4 (Tex. Crim. App. 2012) (not
designated for publication).
The State objects to the above findings related to the challenge for cause to
venireperson, Linda McKay. The record reflects that Judge Bacon questioned McKay
at the bench about her possible bias as a juror based on her sister’s job as a police
officer handling child abuse cases and, after hearing her responses and observing her
demeanor, body language, and tenor of voice, concluded that McKay would not be
biased (II R.R. at 185-86)(II W.H. at 17). The record does not support a challenge to
this ruling in light of McKay’s vacillating and contradictory responses on this issue.
See Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995) (great deference is
given to the trial court’s decision of whether or not to grant a challenge for cause,
because of the trial judge’s ability to observe the venireperson).
14
Further, the cases cited in Finding No. 45 not only have no precedential value
with respect to the Court of Criminal Appeals, but are also distinguishable on their
facts. Unlike in the instant case, there was no equivocation after the initial indications
of bias in Post and Burke. See Post v. State, 936 S.W.2d 343, 347-48 (Tex. App. ─ Fort
Worth 1996, pet. ref’d), overruled on other grounds, Justin Jay Shot With Two Arrows v. State,
64 S.W.3d 606 (Tex. App. ─ Fort Worth 2001, no pet.) (holding that venirepersons
failing to raise their hand in response to a group question from the judge was
insufficient to recant their earlier clear statements to the contrary); Burke v. State, 2012
WL 2415524, *4 (Tex. Crim. App. 2012)(not designated for publication) (no attempt
to rehabilitate venireperson after he professed bias and even confirmed that position
at the bench).
This finding also attempts to mischaracterize Judge Bacon’s questioning as
being done in an attempt to rehabilitate McKay rather than “for the purpose of
clarification or in order to expedite the proceedings.” Post, 936 S.W.2d at 347
(holding that the trial court did not erroneously interfere with the voir dire process by
asking questions in order to clarify a juror's position or instruct a juror (citations
omitted)).
Thus, the record does not support the trial court’s findings with respect to
venireperson McKay.
15
Trial Court’s Finding of Fact 49
A defendant is entitled to have jurors who can consider the full range of
punishment applicable to his case. Fuller v. State, 829 S.W.2d 191, 200
(Tex. Crim. App. 1992). Where it is clear from a venireman’s response
that he cannot consider the full range of punishment, he is deemed
biased as a matter of law, and a challenge for cause must be granted.
Cooks v. State, 844 S.W.2d 697, 709 (Tex. Crim. App. 1992).
Trial Court’s Finding of Fact 50
Crutcher was biased as a matter of law. Johnson v. State, 982 S.W.2d
403, 406 (Tex. Crim. App. 1998).
Trial Court’s Finding of Fact 52
The prosecutor elicited that Crutcher thought that she could consider
the full range of punishment. Crutcher did not unequivocally assert
that she would set aside her personal beliefs, follow the court’s
instructions, and consider the full range of punishment. The prosecutor
asked, “. . . is probation just not even an option, not on any sort of case,
period?” She replied, “No, I don’t take it to that extreme.” Crutcher’s
answer was not vacillating, unclear or contradictory. The prosecutor
then asked, “So you could consider the full range of punishment? She
replied, “I think so” (2 R.R. 181).
Trial Court’s Finding of Fact 53
Thompson did not believe that Crutcher was rehabilitated (1 H.R.R.
101-02; 2 H.R.R. 217). He admits that he should have preserved error by
challenging her for cause and, if necessary, requesting an additional
peremptory challenge and objecting to the jury that was impaneled
(Thompson Supp. Aff. At 5; 1 H.R.R. 105). Instead, he used a
peremptory challenge on her (C.R. 51).
Trial Court’s Finding of Fact 54
The court probably would have granted a challenge for cause where
Crutcher initially said that she could not consider probation, the court
indicated that it was going to excuse her, and the prosecutor did not
completely rehabilitate her.
16
Trial Court’s Finding of Fact 55
Thompson performed deficiently in failing to challenge Crutcher for
cause and preserving error.
The State objects to Trial Court’s Findings of Fact 49, 50, and 53 thru 55
regarding venireperson, Donna Crutcher, as not supported by the record and contrary
to established law.
The trial court’s findings that venireperson Crutcher was biased as a matter of
law overlook the fact that she was rehabilitated at the bench with her responses that
she believed she could consider the full range of punishment. (II R.R. at 181); Cooks
v. State, 844 S.W.2d 697, 709 (Tex. Crim. App. 1992) (citing Anderson v. State, 633
S.W.2d 851, 854 (Tex.Cr.App.1982) that “where the juror states he believes that he
can set aside any influences he may have, and the trial court overrules a challenge for
cause, its decision will be reviewed in light of all the answers the prospective juror
gives”). Her rehabilitation was also reflected in both of the affidavits Thompson
executed in the instant habeas proceeding providing that he did not challenge
Crutcher for cause because he believed that Crutcher’s responses during the
questioning of her at the bench were sufficient to overcome a challenge for cause and
that any challenge for cause to Crutcher would be futile. Thus, even though
Thompson agreed with habeas counsel during the writ evidentiary hearing that
Crutcher’s answer to Keagle’s question about the punishment range on “any sort of
case” would not have been sufficient to rehabilitate her, Thompson’s personal belief
17
at the time of trial was that Keagle was asking about an aggravated sexual assault of a
child case - a reasonable assumption based on the context and circumstances of the
exchange (II R.R. at 181)(I W.H. at 105)(II W.H. at 118-22).
The State also objects to Trial Court’s Finding No. 54 that Judge Bacon
“probably” would have granted a challenge for cause against Crutcher, because there
is nothing in the record to support this speculation. Likewise, a review of the
complete appellate and habeas records does not support the finding that Thompson’s
conduct was deficient in failing to challenge Crutcher for cause, because the totality of
Crutcher’s responses to the voir dire questioning did not sufficiently establish that
Crutcher was unable to consider the full range of punishment, which included
probation and, at a minimum, reflected that Crutcher’s responses were vacillating or
contradictory. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000) (trial
court’s decision in whether to grant a challenge for cause is given particular deference
when the venireperson’s answers are vacillating, unclear, or contradictory).
Trial Court’s Finding of Fact 57
Thompson believed that [Ralph] Green’s answer was unequivocal, that
he was biased as a matter of law, and that there was no basis to
rehabilitate him (1 H.R.R. 108-09)
Trial Court’s Finding of Fact 61
Thompson admits that he should have preserved error by challenging
Green for cause and, if necessary, requesting an additional peremptory
challenge and objecting to the jury that was impaneled (Thompson
Supp. Aff. at 5; 1 H.R.R. 112-13). His conduct constituted deficient
performance.
18
Trial Court’s Finding of Fact 62
Thompson performed deficiently in failing to preserve error from the
denial of the challenge for McKay and in failing to challenge Crutcher
and Green for cause and, if necessary preserve error from the denial of
those challenges.
The State objects to the Trial Court’s Findings of Fact 57, 61, and 62, as they
are not supported by the record and are contrary to clearly established law.
The record reflects that, although Green initially expressed during voir dire that
he would have a bias based upon his knowledge about his girlfriend being sexually
abused as a child, he was rehabilitated based on his response that he would be fair and
open-minded if he was a juror in the primary case when the trial judge questioned
Green further at the bench about his possible bias (II R.R. at 97-98, 187). Thompson
testified at the writ evidentiary hearing that “looking back” he believes he should have
challenged Green for cause (I W.H. at 110-12). However, Thompson did not
challenge Green for cause because at the time he reasonably believed that Green’s
responses during the questioning at the bench were sufficient to overcome a challenge
for cause, and that any challenge for cause to Green would be futile. Thompson’s Supp.
Affidavit; (I W.H. at 110-12).
A review of the appellate and habeas records does not support the above
findings of deficient conduct in that the totality of Green’s responses to the voir dire
questioning did not sufficiently establish that Green would be biased and, at a
minimum, reflected that Green’s responses were vacillating or contradictory. See
19
Garcia v. State, 887 S.W.2d 846, 858 (Tex. Crim. App. 1994) (holding that the trial
court did not abuse its discretion in denying challenge for cause against a vacillating
venireperson where, even assuming that he was biased against the defendant, “he was
able to set his preconceptions aside”). Further, Thompson’s testimony that “looking
back” he might have done something different does not support a finding of deficient
conduct in that “[j]udicial scrutiny of counsel's performance must be highly
deferential, and a fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight.” Strickland v. Washington, 466
U.S. 668, 669 (1984).
Thus, the trial court’s findings of deficient conduct with respect to
venireperson Green are not supported by the record and are contrary to established
law.
Trial Court’s Finding of Fact 63
Had the challenges for cause been granted, or had the defense received
additional peremptory challenges to strike these veniremen, Thompson
would have used the remaining peremptory challenges on objectionable
veniremen who ultimately served on the jury (AX 2 at 2-3; 2 R.R. 190).
Claudia Kolker (venireman 5) had a nephew who was sexually assaulted
(2 R.R. 101); Celeste Swanson (venireman 38) was married to a retired
police officer (2 R.R. 37-38); Judith Williams (venireman 47) had a close
friend from college who was molested by her father and had served on a
jury that convicted the defendant (2 R.R. 100, 149); and Dovie Husch
(venireman 52) also had served on a jury that convicted (2 R.R. 150).
The State objects to Trial Court’s Finding of Fact 63, as a speculative finding
that is not supported by a review of the trial and habeas records. Even assuming,
20
arguendo, that Thompson had been granted additional peremptory challenges, he
would not have necessarily used them to strike venirepersons 5, 38, 47, or 52,
especially in light of the fact that these names were provided to him by habeas counsel
years after the trial of the primary case, and the reasons provided as a basis to strike
them fail to take into account any other responses from the venirepersons, both
verbal and nonverbal, that Thompson would have been aware of at the time his
strikes were made. See, e.g. (II R.R. at 154)(venireperson 5 stated that when assessing
punishment “rehabilitation” was more important to him than “punishment); (II R.R.
at 158)(venireperson 38 responded that “rehabilitation” was more important to him
than “punishment”); (II R.R. at 122)(venirepersons 47 and 52 answered the scaled
question from “0-10” regarding presumption of innocence where “0” was the most
favorable to the defense at “2” and “0”, respectively).
The foregoing discussion demonstrates that Trial Court’s Finding of Fact 63
does not find support in a review of the trial and habeas records.
Trial Court’s Finding of Fact 64
Had Thompson preserved voir dire error, the conviction would have
been reversed on appeal. See Hernandez v. State, 563 S.W.2d 947, 948
(Tex. Crim. App. 1978). Thompson performed deficiently in failing to
do so. See Winn v. State, 871 S.W.2d 756, 762-63 (Tex. App. ─ Corpus
Christi 1993, no pet.) (counsel ineffective in failing to preserve voir dire
error regarding biased venireman, on whom he exercised peremptory
strike, where objectionable juror served); Montez v. State, 824 S.W.2d
308, 310 (Tex. App. ─ San Antonio 1992, no pet.) (counsel ineffective in
failing to preserve error after court denied challenge for cause of biased
venireman); State v. Garza, 143 S.W.3d 144, 149-50 (Tex. App. ─ San
Antonio 2004, pet. ref’d) (counsel ineffective in failing to challenge
21
biased venireman for cause and for not peremptorily striking him where
his omission was inadvertent and not strategic).
Trial Court’s Finding of Fact 64 is not supported by the record or clearly
established law. A review of the record demonstrates that the trial court would not
have committed reversible error in denying a challenge for cause on McKay, Crutcher,
or Green. See supra at 13-20 (detailed discussion on each venireperson); see also,
Adanandus v. State, 866 S.W.2d 210, 222 (Tex. Crim. App. 1993) (providing that the
grant or denial of a challenge for cause is within the discretion of the trial court).
The only Court of Criminal Appeals case cited above fails to provide legal
support for the trial court’s finding, because it is factually distinguishable from the
instant case. Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App. 1978). In
Hernandez, unlike the instant case, the venireperson demonstrated a clear bias against
the appellant by her “belief that a police officer would always tell the truth.” Id. at
950. The other cases cited in the above finding not only have no precedential value
with respect to the Court of Criminal Appeals, but are also distinguishable on their
facts. See Winn v. State, 871 S.W.2d 756, 762 (Tex. App. ─ Corpus Christi 1993, no
pet.)(venireperson stated that she was acquainted with and “that she would believe”
one of the State’s witnesses and “did not feel she could be impartial”); Montez v. State,
824 S.W.2d 308, 310 (Tex. App. ─ San Antonio 1992, no pet.)(challenge for cause was
denied where venireperson “admitted to a ‘tendency to be unfair and a little biased’
because of her knowledge and experience of the danger of drugs”) State v. Garza, 143
22
S.W.3d 144, 149-50 (Tex. App. ─ San Antonio 2004, pet. ref’d)(prospective juror was
biased against the defendant based on a similar incident happening to his daughter-in-
law and stated that he would give more weight to a police officer’s testimony).
Thompson provided the applicant with overall effective representation during
the voir dire portion of the trial by providing accurate explanations of the law;
educating the jury on issues specific to the case, such as witness credibility and
motives to lie; eliciting responses on various topics helpful to the defense, such as
lying during divorce proceedings and people falsely accused of a sexual offense;
eliciting responses in areas subject to a challenge for cause, such as venireperson 14
who would have required the applicant to testify and venireperson 11 who would not
hold the State to its burden of beyond a reasonable doubt; asking two questions that
required a response from every venireperson on the issues of punishment and
presumption of innocence; and demonstrating a competence in knowledge and
execution in jury selection (II R.R. at 103-190)(Thompson’s portion of voir dire
examination and discussions at the bench regarding challenges for cause and by
agreement).
Thus, because there is no “clear abuse of discretion” in any of Judge Bacon’s
rulings during jury selection, the State objects to Trial Court’s Finding of Fact No. 64
as contrary to the record and not supported by clearly established law. Colburn v. State,
966 S.W.2d 511, 517 (Tex. Crim. App. 1998).
23
TESTIMONY REGARDING DRUG USE
Trial Court’s Finding of Fact 65 (partial)
… The Court finds that Cenikor is widely-known in the community as a
drug rehab program …
Trial Court’s Finding of Fact 68
Thompson knew before trial that Linda had a history of drug and
alcohol abuse; the defense made the strategic decision before the trial to
try to exclude and not elicit this evidence (2 H.R.R. 9-10). He admits
that this testimony was irrelevant; the State did not give him pre-trial
notice of its intent to offer this extraneous misconduct; and it violated
the order in limine obtained by the State (AX 2 at 3; 1 H.R.R. 119-20,
125). He should have objected to it; his failure to do so was inadvertent,
not strategic; and he waived error without any strategic reason (AX 2 at
4; 1 H.R.R. 118-20, 126). He did not consider objecting outside the
jury’s presence and it would have been appropriate to do so because the
State violated the order in limine (1 H.R.R. 133-34; 2 H.R.R. 222).
Trial Court’s Finding of Fact 69
Thompson performed deficiently in failing to object to this
inadmissible, prejudicial testimony.
The State objects to Trial Court’s Findings of Fact 68 and 69, as they are not
supported by the record and are contrary to clearly established law. Specifically,
Thompson’s conduct was not objectively deficient for failing to object to testimony
about the applicant and Linda Dietrich meeting in drug rehab and the applicant
getting kicked out of the program.
The record reflects that on direct examination the prosecutor asked the
complainant “how did [the applicant] become a part of your house,” and the
complainant non-responsively answered that (a) the applicant met her mother, Linda,
24
at a “women’s detox facility” which was “drug rehab,” (b) Linda did not live there, (c)
Linda “went to an Alcoholics Anonymous meeting there” and the applicant was there,
and (d) a couple of months later the applicant “was kicked out of Cenikor or left
Cenikor” (III R.R. at 12-13). Later in the trial, Judge Bacon conducted a hearing
outside the presence of the jury during Thompson’s cross-examination of the
complainant to discuss the prosecutor’s objection to a question asked by Thompson;
the trial judge and both attorneys discussed the motion in limine entered by the trial
judge, and Thompson pointed out that the prosecutor violated the motion in limine
by bringing out allegations about the applicant’s drug abuse during the complainant’s
testimony without first approaching the trial judge; Thompson stated that he “didn’t
want to call any additional attention it [sic], but – ”; and Judge Bacon addressed
Thompson’s comment by stating that “you need to object when it happens, don’t
you,” to which Thompson responded, “Yeah.” (III R.R. at 75-81).
However, Thompson testified in the writ evidentiary hearing that he knew that
this disputed portion of the complainant’s testimony was objectionable and harmful
to the defense; that he did a quick balancing of how harmful the testimony was to the
defense versus calling the jury’s attention to the testimony; that he knew that in order
to preserve error, if his objection was sustained, it would have been necessary to
highlight the harmful testimony twice - once when he objected to it and once when
the jury was instructed to disregard the testimony; and that he made an in-trial
strategic decision not to object for these reasons (I W.H. at 119-20, 124-132)(II W.H.
25
at 131-34). Further, the portion of the complainant’s testimony about the applicant
meeting Linda at a “women’s detox facility” or “drug rehab” did not present evidence
to the jury of any present drug or alcohol use by Linda or the applicant (III R.R. at 12-
13). Likewise, the portion of the complainant’s testimony that the applicant and
Linda met and “a couple of months later he was kicked out of Cenikor or left
Cenikor” did not present any evidence of the applicant’s present drug or alcohol use
(III R.R. at 12-13).
In fact, although Cenikor may be widely-known in the criminal justice community as
a drug treatment facility, there is no support in the trial or habeas record that the jury
shared this knowledge. The specific portion of the complainant’s testimony that the
applicant and Linda met and “a couple of months later he was kicked out of Cenikor
or left Cenikor” did not necessarily present any evidence of the applicant’s past
difficulties with drugs or alcohol, because the complainant never expounded on or
explained the meaning or significance of Cenikor to the jury; the complainant’s
testimony was not specific as to the applicant’s manner of departing Cenikor; and
Cenikor was never mentioned again or explained during the remainder of the
guilt/innocence stage of trial.
Therefore, Thompson’s strategic decision not to object to testimony that he
believed implicated the applicant in some form of drug-related misconduct had a
plausible basis of not calling the jury’s attention to this evidence. (I W.H. at 126-28);
See Ex parte Davis, 866 S.W.2d 234, 242 (Tex. Crim. App. 1993) (under Strickland there
26
is a presumption that counsel “made all significant decisions in the exercise of
reasonable professional judgment”). Notwithstanding Thompson’s testimony at the
writ evidentiary hearing that “in hindsight” he should have approached the bench
when he heard the disputed portion of the complainant’s testimony, Thompson’s
decision not to object or approach the bench was reasonable trial strategy in light of
his concerns that he would highlight the testimony even by approaching the bench (I
W.H. at 130)(II W.H. at 222-23). See Strickland, 466 U.S. at 669 (warning against the
“distorting effects of hindsight” when reviewing counsel’s performance).
Finally, the above findings are not supported, because Judge Bacon would not
have committed reversible error in overruling an objection to this testimony, because
the complainant’s response provided contextual evidence regarding the relationships
between the parties and was relevant to explain the circumstances of the
complainant’s home-life. See Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App.
1986)(holding that the “jury is entitled to know all relevant surrounding facts and
circumstances of the charged offense; an offense is not tried in a vacuum”). Thus,
Thompson’s conduct was not objectively deficient with respect to the testimony
regarding how Linda and the applicant met and that the applicant left Cenikor, and
the record does not support that the trial judge would have either sustained any
objection lodged or that she would have committed error in overruling the objection.
Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).
27
Trial Court’s Finding of Fact 74
Morgan performed deficiently in eliciting this inadmissible, prejudicial
testimony.
Trial Court’s Finding of Fact 74 regarding the applicant’s trial counsel, John
Morgan, eliciting testimony at trial that Linda had a history of drug use and had been a
member of Alcoholics Anonymous for ten (10) years is not supported by the record
and established law.
Prior to Morgan calling Linda in the applicant’s case-in-chief, the complainant
had testified pursuant to the prosecutor’s direct examination that (a) the applicant met
Linda at a “women’s detox facility” which was “drug rehab,” (b) Linda did not live
there, (c) Linda went to an Alcoholics Anonymous (AA) meeting there and the
applicant was there, (d) a couple of months later the applicant “was kicked out of
Cenikor or left Cenikor,” (e) the applicant moved into the complainant’s family’s
home located on Camden in Pasadena, (f) the applicant and the complainant’s family
moved to a home on Princess in South Houston, (g) the complainant moved out of
the home on Princess when she was fifteen (15) years old to live with her father
because she was being raped, (h) the complainant moved back to the home on
Princess when she was 16 years old in order to take care of her little brothers because
they had no guidance since Linda had a “drug habit,” (i) the complainant later got
married in New Orleans, (j) the complainant informed Linda of the marriage and
28
Linda became angry, and (k) the complainant became worried about Linda’s “drug
use” (III R.R. at 12-13, 16-17, 19-21).
During Linda’s testimony as the only defense witness during guilt/innocence,
Morgan told Linda that the jury had already received “brief evidence regarding drug
use on [her] part” and asked, “Are you presently under the influence of any drugs or
alcohol?,” to which Linda responded, “I’m on medication. I have a back injury;”
Morgan asked Linda if she was “currently attending any type of treatment program,”
and Linda responded, “Yes, I have ten years AA”; Morgan asked Linda, “[w]hat is
your status with them at this time?,” and Linda responded, “I have ten years sober in
AA;” and, Morgan asked Linda, “When was your last use of alcohol?” and Linda
responded that her “sobriety date [was] May 1st of 1997” and her “last use of alcohol
would be the last day of April of 1997…” (III R.R. at 118-19).
The issue of whether Linda was intoxicated at the time of her testimony was
addressed during the applicant’s motion for new trial hearing in 2007. Morgan
testified during the motion for new trial hearing that there had “been some talk about
[Linda] being intoxicated” during trial but Morgan did not think Linda was impaired
when she testified in trial (VII R.R. at 17-18). Kathryn Rozelle testified in the motion
for new trial hearing that Linda was impaired when she testified in the applicant’s trial
(VIII R.R. at 20-21). Davida Acker testified in the motion for new trial hearing that
she observed Linda when she testified in the applicant’s trial, and that Linda was
“definitively intoxicated” because she had “slurred speaking” and “dilated eyes” and
29
“[was] falling asleep in the courtroom;” and, that Acker never informed the
applicant’s defense attorneys of Linda’s impairment but confronted Linda about her
intoxicated state (VIII R.R. at 74-76). Most importantly, the applicant testified in the
motion for new trial hearing that Linda was impaired when she testified during trial
and that her impairment was “obvious;” that he informed Morgan about Linda’s
impairment; that a lady in the courtroom confronted Linda about her impairment, and
Linda became “hysterical;” and, that Morgan requested that the applicant get Linda to
calm down (X R.R. at 34).
The Trial Court’s finding does not reference, and seemingly ignores, the above
testimony about Linda’s intoxication at trial, as well as Morgan’s testimony in the
motion for new trial hearing discussing his representation of the applicant at trial.
Likewise, Morgan’s assertion in his 2011 affidavit provided to habeas counsel that he
had no “tactical reason” to ask Linda whether, at the time of her testimony, she was
under the influence of any drugs or alcohol and whether she was attending any
treatment program is unpersuasive based in part on the circumstances at the time of
his direct examination of Linda at trial, which included that:
• although neither defense attorney thought Linda was intoxicated,
Morgan had received information about concerns that Linda was
intoxicated or impaired prior to her trial testimony;
• the jury had already received evidence about Linda’s drug and/or
alcohol abuse and efforts for rehabilitation during the
complainant’s earlier testimony before the defense case-in-chief
commenced;
30
• if Morgan recognized that the jury might observe signs of
impairment in Linda during her testimony that was consistent
with the information which he had received about her possible
impairment, it would have been reasonable trial strategy to ask her
about this;
• Thompson testified at the writ evidentiary hearing that friends and
family of the applicant who knew Linda better than Morgan or he
knew her believed that she was impaired, so it would have been
reasonable trial strategy to bring out any explanation for her odd
behavior other than the abuse of drugs or alcohol;
• Morgan was faced with the decisions of whether to address the
issues of (a) Linda testifying while possibly impaired – or to avoid
this issue and allow the jury to evaluate Linda’s credibility in light
of the possibility that the jury might observe signs of impairment
in Linda while knowing from the complainant’s testimony about
Linda’s drug and/or alcohol abuse past – and (b) Linda’s history
of drug and/or alcohol abuse by eliciting testimony about her
efforts for rehabilitation and lengthy sobriety – or to avoid this
issue and allow the jury to evaluate Linda’s credibility based on
the undisputed evidence that Linda abused drugs and/or alcohol;
• Linda’s response that she was on medication for a back injury
corroborated the information told to Morgan that Linda possibly
manifested signs of impairment;
• Linda’s testimony that she was presently taking medication for a
back injury explained for the jury any signs of impairment
manifested while she testified; and,
• Morgan’s decision to ask Linda (a) whether she was presently
attending any type of treatment program and (b) about the status
of such treatment program was a reasonable response to the
complainant’s earlier testimony about Linda’s drug and/or alcohol
abuse and elicited favorable evidence concerning Linda’s
prolonged efforts for rehabilitation through AA and her lengthy
ten-year sobriety.
Morgan’s decision to ask Linda about whether she was presently under the
influence of drugs or alcohol was a reasonable trial strategy that had a plausible basis
31
of helping the jury to understand the reason for any unusual speech, demeanor or
behavior possibly exhibited by Linda during her testimony. Harrington v. Richter, 562
U.S. 86, 104-12 (2011)(citing Strickland at 691). Morgan’s decision to ask Linda about
her participation in a treatment program was reasonable trial strategy that had a
plausible basis of contextualizing the complainant’s earlier testimony about Linda’s
drug and/or alcohol history and informing the jury of Linda’s prolonged efforts for
rehabilitation. Id. Morgan’s decision to ask Linda about her last use of alcohol was
reasonable trial strategy that had a plausible basis of bolstering Linda’s credibility by
informing the jury of her successful, lengthy ten-year sobriety. Id.
Thus, because Morgan’s decisions to ask Linda the questions about drugs and
alcohol were reasonable under the circumstances, the trial court’s finding of deficient
conduct by Morgan in his direct examination of Linda is not supported by the record
and is contrary to established law. See Harrington, 562 U.S. at 104-12 (providing that
the question in deciding if there was deficient conduct by counsel is whether an
attorney’s representation amounted to incompetence under “prevailing professional
norms,” not whether it deviated from best practices or most common custom).
EXTRANEOUS SEXUAL ASSAULTS
Trial Court’s Finding of Fact 78
Eliciting this prejudicial testimony [the extraneous sexual assaults]
where the State failed to do so was not reasonable professional
performance by defense counsel. Thompson should have cross-
32
examined Samantha only about the acts to which she testified instead of
eliciting the numerous extraneous offenses.
Trial Court’s Finding of Fact 82
If this was Thompson’s strategy [trying to show that the complainant’s
allegations were incredible], it was unsound because the testimony was
so prejudicial. See Moore v. Johnson, 194 F.3d 586, 611 (5th Cir. 1999).
No rational juror could have disregarded the volume of encounters and
their graphic detail. Moreover, the allegations to which Samantha
testified on direct examination were not “over the top” and did not
justify Thompson’s decision to reveal the numerous alleged extraneous
incidents.
Trial Court’s Finding of Fact 84
Thompson admits that his strategy was unsound based on how
Samantha’s direct examination evolved and that he would not pursue
this strategy again if he were representing applicant at a retrial
(Thompson Supp. Aff. at 7; 1 H.R.R. 148-49; 2 H.R.R. 234).
Trial Court’s Finding of Fact 85
Thompson performed deficiently in eliciting this prejudicial testimony
regarding numerous extraneous offenses.
The State objects to the Trial Court’s Findings of Fact 78, 82, 84, and 85 as not
supported by the record or established law. These findings, that trial counsel’s
conduct was deficient for eliciting testimony about the applicant’s extraneous sexual
assaults of the complainant, not only judge Thompson’s conduct through the lens of
hindsight, but also completely ignore Thompson’s common-sense reasoning that a
jury is more likely to find testimony about numerous aggressive and violent sexual acts
incredible than an outcry with minimal details.
33
During Thompson’s cross-examination of the complainant, he purposely
elicited details about the applicant forcing her to perform oral sex about twenty-five
(25) times; forcing her into vaginal intercourse about fifty (50) times; forcing her into
anal intercourse once; performing oral sex on her between three (3) and five (5) times;
forcefully and aggressively kissing the complainant’s mouth by shoving his tongue
into her mouth; biting the complainant during the sexual assaults; and, physically
restraining her by pinning her down with his legs (III R.R. at 60-66). Thompson
agreed with habeas counsel during the writ hearing that this strategy, when viewed in
hindsight, was not good “given the way the trial turned out” (IX R.R. at 29-31)(I
W.H. at 147-150). However, a review of the trial and habeas records provides no
support for the trial court’s finding that Thompson’s strategy to discredit the
complainant by eliciting her “over the top” allegations was unsound.
In fact, Thompson elaborated on his strategy during the writ evidentiary
hearing, explaining that:
• Thompson’s primary strategy in the case was to attack the
complainant’s credibility, and Thompson believed that the
complainant appeared more credible to a jury with the minimal
testimony of two (2) sexual assaults than her “over the top”
allegations, which included her claim that the applicant was able
to forcefully rape her after his severe head injury;
• Trial counsel had information from their pretrial witness meetings
that the complainant was an actress; that she told an ex-boyfriend
that she committed murder, then immediately said it was a joke;
and that she liked to make up fanciful stories to attract attention;
34
• The complainant admitted on cross-examination that she had
many family members and loved ones in her life that would have
helped her; and that she actually did move out twice during this
time period, but moved back in with the applicant still living
there;
• Thompson believed that the jury would have a harder time
thinking that a little girl would stay in a home for six (6) years
being molested and raped anally, vaginally, and orally over fifty
(50) times and not make outcry to law enforcement to end – or
attempt to leave the home to escape – the sexual abuse;
• Although Thompson did not personally see the jury’s reaction to
the complainant’s testimony, Morgan’s observation that there
were jurors crying after she testified is an indication that they
believed her version of the events; and,
• Trial counsels’ strategy was derived with the goal of an acquittal
by convincing the jury that the complainant was lying; if they were
trying the case over the punishment issue, then the applicant
would have pled guilty to the State’s pretrial offer of five (5) years
deferred adjudication.
(I W.H. at 138-45); (II W.H. at 140-47); See Ex parte Davis, 866 S.W.2d 234, 242 (Tex.
Crim. App. 1993) (under Strickland there is a presumption that counsel “made all
significant decisions in the exercise of reasonable professional judgment”); compare,
Moore v. Johnson, 194 F.3d 586, 611 (5th Cir. 1999)(finding no conceivable benefit
where defense counsel agreed not to introduce the parts of the defendant’s confession
potentially helpful to his defense after the prosecutor introduced only the parts
harmful to the defense).
Thus, the trial and habeas records do not support the above findings with
respect to Thompson eliciting additional testimony from the complainant regarding
35
the number and manner of the sexual assaults. See Blott v. State, 588 S.W.2d 588, 592
(Tex. Crim. App. 1979) (declining to "second-guess through hindsight" the strategy of
counsel, and providing that the fact that another attorney might have pursued a
different course will not support a finding of ineffectiveness).
ALLEGED FAILURE TO CALL WITNESSES
Trial Court’s Finding of Fact 94
Thompson could have called Rives to impeach complainant’s
credibility by rendering his opinion as to her reputation or his opinion
regarding her character trait for “truthfulness,” and was prepared to do
that, but he did not. (1 H.R.R. at 157), The prosecutor told Thompson
after the complainant had finished testifying that he had emails that
undermined Rives’ credibility and showed him some “my space” emails
and web pages (9 R.R. 79), regarding Rives’ involvement in “witchcraft”
or a cult (1 H.R.R. at 158). Thompson did not read the emails or ask to
do so, nor did the prosecutor refuse to let him see them. He did not tell
the court that he needed to see the emails to make a strategic decision
whether to call Rives (1 H.R.R. 158-59). Instead, he decided not to call
Rives without personally meeting or speaking with him (9 R.R. 50-51)
and without seeing the emails, which he admits was not a sound
strategic decision (1 H.R.R. 160). He trusted the prosecutor without
conducting an independent investigation (1 H.R.R. 161).
Trial Court’s Finding of Fact 95
At the time of trial, Thompson did not know or research whether Rives
could have been impeached with the emails if they existed (1 H.R.R.
171). He now admits that such impeachment would have been
improper (1 H.R.R. 173-79, 184). His strategic decision not to call Rives
was based on his misunderstanding of the law regarding whether Rives
could be impeached.
Trial Court’s Finding of Fact 97
Thompson admits that he should have made a bill of exceptions or offer
of proof to preserve this issue for appellate review, that he also should
have argued that he had a constitutional right to confront and cross-
36
examine Samantha with this information, and that these omissions were
inadvertent, not strategic (AX 2 at 5; 1 H.R.R. 155, 169-70). He
performed deficiently in failing to do so.
The State objects to Trial Court’s Findings of Fact 94, 95, and 97 regarding trial
counsels’ decision not to call Ricky Rives2 to testify that it was his opinion that the
complainant had bad character for truthfulness, because they are not supported by the
record, especially the evidence in the motion for new trial hearing, and are contrary to
established law.
During his cross-examination of the complainant at trial, Thompson attempted
to question her concerning her lying to Rives about committing a murder, but the trial
judge sustained the prosecutor’s objections and disallowed this line of questioning (III
R.R. at 75-81). Nonetheless, Thompson was still aware that Rives was an ex-
boyfriend of the complainant’s that could have testified about the complainant’s bad
character for truthfulness from his pretrial investigation (IX R.R. at 44-45, 50-51).
Morgan testified about this in the motion for new trial hearing, namely that
Rives and Morehead (another ex-boyfriend) were contacted and subpoenaed for
court; that Morgan had access and the opportunity to review the State’s prosecution
file except for the work product; that Morgan was aware that the State was in
possession of “stacks” of e-mails and reputation evidence relating to Rives and
Morehead; that Morgan was aware that the State possessed evidence of chronic drug
2
This witness is referred to as “Ricky Reeves” in the trial record and in the State’s Proposed
Findings of Fact and Conclusions of Law, however “Rives” and “Reeves” are one and the same
person. See, e.g., (III R.R. at 75).
37
use and involvement in a cult; that Morgan was aware that presenting testimony from
Rives and Morehead could hurt the applicant’s case; and, that Morgan and Thompson
made the strategic decision not to present testimony from Rives and Morehead (VII
R.R. at 26-27). Thompson also testified about this issue in the motion for new trial
hearing, specifically that the trial prosecutor discussed Rives with Thompson; that the
prosecutor showed Thompson e-mails and “MySpace” webpages related to Rives; that
Thompson learned that Rives was involved in a cult; that Thompson knew that some
“interesting” character evidence would be presented if Rives testified in trial; and that
Thompson was concerned about the potential damage to the applicant’s case after
presenting defense character witnesses who would be discredited by the State (IX R.R.
at 79-80, 80-81).
A review of the appellate and habeas records fails to show any objectively
deficient conduct by trial counsel with respect to Rives, but rather demonstrates that
Thompson and Morgan made a strategic decision not to present testimony from
Rives, which had a plausible basis of trying to avoid damaging the applicant’s case
from Rives being discredited by the State. Even though Thompson testified at the
writ evidentiary hearing that he had an erroneous understanding of whether the
prosecutor could impeach Rives with information in the e-mails, his decision not to
call Rives was still part of a reasonable trial strategy in light of the fact that:
• the prosecutor notified him near the end of the trial that he had e-
mails that could potentially damage Rives’ credibility, along the
lines that he was involved in witchcraft or a cult;
38
• Thompson’s recollection is that a family member brought the e-
mails to court and gave them to the prosecutor during trial;
• Thompson knew the prosecutor, and trusted him;
• Thompson cannot recall the details of his conversation with the
prosecutor, but made his decision not to call Rives after their
discussion;
• Thompson knew it would hurt the defense case if he called Rives
to testify that the complainant had a bad character for
truthfulness, and the prosecutor was able to discredit the witness
on cross-examination;
• Thompson had to make the in-trial strategy decision of balancing
the potential benefit of an ex-boyfriend testifying that the
complainant did not have a good reputation for truthfulness
versus the potential harm to the defense case if Rives was
discredited with any admissible impeachment evidence or
something that became relevant based on a non-responsive
answer, a possible bias, or to clear up a false impression with the
jury; and,
• Thompson believes that after considering the potential benefit
versus potential harm, that it was reasonable trial strategy not to
call Rives.
(I W.H. at 152-53, 154-59, 161, 184, 236).
Thus, the trial court’s findings with respect to trial counsels’ decision not to call
Rives are unsupportable based on a review of the appellate and habeas records under
established law. Thompson made a strategic decision not to call Rives based on an
evaluation of the potential risks and rewards at the time of trial. See Blott, 588 S.W.2d
at 592 (declining to "second-guess through hindsight" the strategy of counsel, and
providing that the fact that another attorney might have pursued a different course
will not support a finding of ineffectiveness).
39
Trial Court’s Finding of Fact 124
To the extent that Thompson made a strategic decision not to call
Morehead and Rives based on the prosecutor’s “threat” to impeach
Rives with emails, My Space entries and Morehead’s emails that
strategy was unsound where he did not review the purported emails that
Keagle had made Thompson “aware of” (9 R.R. 80), without showing
him the actual emails as well as the non-disclosed My Space
communication between the complainant and Morehead, before
making the decision. He performed deficiently in failing to call them.
The State objects to Trial Court’s Finding of Fact 124, as it is not supported by
the trial and habeas records and is contrary to established law.
Morehead could potentially have testified, with the proper predicates, about his
opinion of the complainant’s bad character for truthfulness and the complainant’s bad
reputation in the community for truthfulness under Rule 608(a); however, Morehead
could not testify concerning the complainant’s past lies and him not believing the
complainant when she claimed to be sexually abused by the applicant under Rules 403
and 608(b).
Thompson testified in the motion for new trial hearing that he knew about
Morehead, another of the complainant’s boyfriends, and had a conversation with him
when he came to court; that Thompson was aware that the State possessed e-mails
reflecting that Morehead was still romantically interested in the complainant and that
the nature of this interest negatively impacted Morehead’s credibility; that Thompson
knew that Morehead was willing to testify that the complainant had a bad character
for truthfulness; and, that Thompson considered presenting the testimony of
40
Morehead but, in light of his “baggage,” made the decision not to call him as a
witness even though Morehead was present in court to testify (IX R.R. at 45-46, 51).
Thompson testified further in his cross-examination at the motion for new trial
hearing that Keagle made Thompson aware of e-mails which related to Morehead’s
character; that Thompson was made aware of other motivations that would cause
Morehead to testify negatively about the complainant; that Thompson believed that
Morehead would be a good defense witness but for Thompson’s concern about the
prosecutor’s ability to impeach Morehead; and, that Thompson was concerned about
the potential damage to the applicant’s case after presenting defense character
witnesses who would be discredited by the State (IX R.R. at 79-80, 80-81).
Thus, Thompson and Morgan made a strategic decision not to present
testimony from Morehead, and that strategic decision had a plausible basis of trying to
avoid damaging the applicant’s case from Morehead being discredited by the State.
The decision not to call Morehead was part of a reasonable trial strategy in light of the
fact that:
• Thompson was aware that the complainant had previously told
Morehead that the applicant had sexually assaulted her from his
review of the offense report as part of his pretrial preparation, but
that Morehead did not believe her;
• Thompson had still intended to call Morehead to testify about his
opinion of the complainant’s truthfulness and anything else he
might have been able to get in;
41
• prior to calling Morehead, the prosecutor notified Thompson that
he had information that could be used to impeach and discredit
Morehead;
• Thompson did not see the “MySpace” message between
Morehead and the complainant, admitted in the instant habeas
proceeding as Applicant’s Exhibit 4, prior to or during the
applicant’s trial;
• Thompson agreed that there were things in the message that he
hopefully could have used to undermine the complainant’s
credibility, such as her doubts that the applicant would be
convicted, that her interview went horribly, and that she was upset
that Morehead told the police that he did not believe her;
• even if the message had been available to Thompson at the time
of trial, an objective review of the message reveals that the
complainant never stated that the sexual assaults did not happen;
that bits and pieces could be pulled out of the message to ask the
complainant about; but that the message also contains
information that would have been helpful to the State’s case
and/or harmful to the defense, namely: (1) the complainant states
that she hopes the applicant admits to the offense, which makes
no sense if she knew the allegations were made up; (2) the
complainant speculates that the applicant will say she seduced
him, and is outraged that he would think a twelve-year-old can
seduce a grown man; (3) the message is proof of another person
the complainant told about the sexual assaults, with fairly
consistent facts; (4) the complainant is concerned that the
applicant will not be convicted because she waited so long to tell
about the assaults; (5) the message, and her previous outcry to
Morehead, shows that she told somebody about the assaults prior
to the financial motive used as one of the defenses in trial; (6)
there was nothing in the message indicating she was trying to
“round up” witnesses to lie, but rather only mentioned Morehead
and Acton, the two witnesses already mentioned in the offense
report; and (7) the message gives some confirmation to the fact
that she told people about the assaults before she moved out of
the applicant’s house; and
• trial counsel had to make the in-trial strategy decision of balancing
the potential benefit of an ex-boyfriend testifying that the
42
complainant did not have a good reputation for truthfulness
versus the potential harm to the defense case if Morehead was
discredited with any admissible impeachment evidence or
something that became relevant based on a non-responsive
answer, a possible bias, or to clear up a false impression with the
jury.
(I W.H. at 223, 225, 230-33)(II W.H. at 166-171).
Therefore, the trial court’s finding that Thompson’s representation was
deficient when he failed to call Morehead as a witness in the applicant’s trial, is not
supported by the record and is contrary to established law, as trial counsel made a
strategic decision not to call Morehead based on an evaluation of the potential risks
and rewards at the time of trial. See Blott, 588 S.W.2d at 592 (declining to "second-
guess through hindsight" the strategy of counsel, and providing that the fact that
another attorney might have pursued a different course will not support a finding of
ineffectiveness).
Trial Court’s Finding of Fact 133
Assuming arguendo that Thompson made a strategic decision not to
call Acton because he did not want the jury to hear that Samantha told
Acton that applicant walked in on her while she showered and
undressed, Thompson admits that this decision was unsound where he
also made the unsound strategic decision to elicit testimony about the
quantity and nature of the sexual assaults (2 H.R.R. 246-47).
Trial Court’s Finding of Fact 134
Thompson performed deficiently in failing to impeach Samantha with
the fact that she did not report any sexual abuse to Acton, as she
claimed.
43
The State objects to Trial Court’s Findings of Fact 133 and 134, that trial
counsel was deficient for failing to call Shannon Acton – the complainant’s friend at
the time of the sexual abuse – to testify that the complainant never informed her that
she was being sexually assaulted by the applicant, as they are not supported by the
record.
These findings mischaracterize the details in the statement Acton gave to
police to suggest an accidental “walk-in” devoid of any sexual abuse. In fact, Acton’s
statement provided that:
Sometime near 7th or 8th grade, Samantha told me that Kyle Dietrich her
stepfather had begun to watch her while she was in the shower. She did
not tell me many details about this. She told me that I was to keep this a
secret. … I don’t remember specifically when Samantha first told me
about Kyle, but I think the only thing she mentioned was him watching
her shower and constantly walking in on her while she was undressed.
Applicant’s Ex. 7. Further, the trial court makes the perplexing connection that
Thompson’s decision not to call Acton was unsound due to his other strategy to elicit
details about the extraneous offenses from the complainant.
Thompson was unable to discover before trial the substance of Acton’s
potential testimony because when the defense investigator contacted her she was
unable to meet, and closer to the trial date the investigator was unable to reach her to
be interviewed (II W.H. at 180). Notwithstanding Thompson’s testimony at the writ
evidentiary hearing that he believed there was information in Acton’s statement that
was helpful to the defense and that it would have been “the better thing to do” to
44
have her attached, his decision not to call Acton was part of a reasonable trial strategy
in light of the fact that:
• Thompson had reviewed Acton’s statement in the offense
report, which reflected that Acton was a friend of the
complainant, and that when they were in 7th grade the
complainant told her that the applicant would watch her take
showers and watch her get undressed;
• Thompson would not want to sponsor a witness without
asking questions in addition to what was provided in her
statement;
• even if, in hindsight, Thompson wishes he had Acton
attached, her presence in court would have also made her
available as a witness for the State, and he still would not have
known if her testimony would do more harm than good;
• Acton’s testimony, even if limited to what she provided in her
statement to police, would have made the jury aware of
deviant acts by the applicant against the complainant when she
was twelve-years-old, and would have weakened the defense’s
claims that the complainant never told anyone about the
applicant’s actions before moving out of his house and before
having a financial motive against the applicant; and,
• it is unlikely that the complainant’s failure to tell Acton about
the applicant forcing her into oral sex would have helped the
defense’s case more than the jury hearing about his desire to
see his twelve-year-old stepdaughter naked would have hurt
their case.
(I W.H. 202, 206, 218)(II. W.H. at 183-85).
Thus, the finding that trial counsel’s conduct was deficient for failing to call
Acton is not supported by the record, because there was no evidence provided that
Acton was available to testify in the applicant’s trial or that Acton’s testimony was
45
favorable to the applicant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983);
Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986).
Trial Court’s Finding of Fact 147
Thompson and Morgan performed deficiently in failing to present this
good character testimony [regarding the safe and moral treatment of
children] where that decision was based on a misunderstanding of the
law. Cf. Horton v. State, 411 S.E.2d. 223, 224 (S.C. 1991) (counsel
performed deficiently in advising defendant inaccurately that, if he
testified, he could be impeached with prior convictions that were
inadmissible).
Trial Court’s Finding of Fact 148
Had the trial court admitted evidence of applicant’s prior criminal
history to rebut this good character testimony over applicant’s
objection, an appellate court probably would have reversed the
conviction. See Baize, 790 S.W.2d at 66.
Trial Court’s Finding of Fact 149
When Thompson decided not to present this testimony, he did not
know about the caselaw holding that testimony of this nature did not
open the door to the defendant’s criminal history not involving children
(AX 2 at 10; 2 H.R.R. 17, 20-21). Thompson admits that he should have
discovered this caselaw and presented testimony regarding applicant’s
good character for the safe and moral treatment of children. His failure
to do so was not based on sound strategy after an adequate
investigation. He performed deficiently in this regard.
The State objects to Trial Court’s Findings of Fact 147-49, that Thompson’s
conduct was deficient for failing to present character evidence in the guilt/innocence
phase of trial that the applicant treated children safely and morally, as not supported
by the record and contrary to established law.
46
Clyde Williams represented the applicant during the motion for new trial
hearing, at which she presented testimony from George Fotsch, Paige Koerner,
Kathryn Rozelle, David Taft, Jacqueline Phoenix Kronjaeger, Donna Firmin, Elaine
Rankin, Sharon Walker, Davida Acker, James Rozelle, Lynn Chamberlain, Sarah
Bergman, and Douglas Phoenix related to their opinion about the applicant’s good
character for the safe and moral treatment of children and/or their knowledge about
the applicant’s good reputation in the community for his character for safe and moral
treatment of children (VII R.R. at 85-86, 94; VIII R.R. at 9-12, 35-36, 46-47, 52, 56-
57, 69, 76, 80-81, 85-86, 97-98, 112-13).
Thompson testified in the motion for new trial hearing on September 6, 2007,
that the applicant was not going to testify in the guilt stage; that Thompson was aware
that the applicant had friends that could testify as to him having safe and moral
relations with children; that Thompson did not want to present any character
evidence for truthfulness or lawfulness because he was concerned that this evidence
might open the door to evidence of the applicant’s prior convictions under Rule 609;
that Linda provided some testimony about the applicant’s character for safe and
moral relations with children; that Thompson was concerned with the State repeating
all sexual abuse allegations already heard by the jury with each character witness
presented by the defense to determine whether any unknown information would
change the witness’ opinion about the applicant’s character trait; that Thompson
believed based on the primacy/recency effect that the more the jury heard the sexual
47
abuse allegations repeated the more likely it would be for the jury to “take it as fact;”
that Thompson did not believe that presenting character witnesses to testify about the
applicant having safe and moral relations with children would open the door to
evidence of the applicant’s prior criminal history; and, that Thompson believed that
calling character witnesses in the guilt stage to testify about the applicant having safe
and moral relations with children would not have a good impact on the jury (IX R.R.
at 46-50).
Consequently, Thompson made the strategic decision not to present character
witnesses to testify about the applicant’s safe and moral relations with children in the
guilt stage of trial, and this strategic decision had a plausible bases of preventing the
prosecutor from repeating the sexual abuse allegations with each character witness
and of completely denying Judge Bacon even the remotest opportunity to make a
ruling that allowed the State to present evidence of the applicant’s criminal history (I
W.H. at 191-92). Notwithstanding Thompson’s testimony at the writ hearing that he
did not research this issue prior to trial, his decision not to present any character
witnesses to testify about the applicant’s safe and moral relations with children in the
guilt stage of trial was still part of a reasonable trial strategy in light of the fact that:
• Thompson was aware of and considered presenting character
witnesses to testify about the applicant’s safe and moral relations
with children in the guilt stage;
• Trial counsels’ overall trial strategy was to (a) attack the
complainant using her mother to make such attack and (b) keep
the jury from hearing anything about the applicant;
48
• Thompson’s plan to implement this trial strategy was not to put
the applicant’s character into evidence during guilt/innocence and
keep evidence of the applicant’s criminal past out of the
guilt/innocence stage;
• If the jury learned that the applicant was out trying to pick up a
prostitute after his serious head injury, this would have
undermined the defense theory that the complainant’s claim that
the applicant raped her after his accident was completely
incredible because he was a homebound person needing a
caretaker that had just relearned how to walk and talk;
• Thompson, while not believing that Judge Bacon was biased or
unfair to criminal defendants, was aware of her reputation in the
Harris County courthouse for being “State’s-minded” and of the
fact that she commonly ruled in favor of the State when
exercising her judicial discretion;
• even if evidence of a specific character trait does not automatically
open the door to the applicant’s criminal history, Thompson
made an in-trial judgment call that the risk of a non-responsive
answer or responses to questions about the potential witnesses’
relationship with the applicant or their motives to testify could
have opening the door enough for the prostitution conviction to
come in far outweighed the potential benefit of friends and/or
family members giving good character testimony;
• Even if the door was not opened in any manner, after each
witness testified about the applicant’s character, including the
trait of having safe and moral relations with children, the
prosecutor would question each character witness about the
sexual abuse evidence before the jury in order to determine
whether any information unknown to the character witness
affected the character witness’ opinion about that character trait;
and,
• Notwithstanding the guilty verdict, Thompson was successful in
implementing this trial strategy in that the jury never heard any
evidence about the applicant’s prostitution conviction or
Maryland case during the guilt stage.
(IX R.R. at 71, 79-80, 85-86)(I W.H. at 14)(II W.H. at 98, 193-94).
49
This stands in sharp contrast to the South Carolina case cited in the above
finding where the trial counsel gave the defendant advice based on a
misunderstanding of the law, and there was no other strategic reason for that advice
found in the record. Horton v. State, 306 S.C. 252, 254-55, 411 S.E.2d 223, 224 (1991).
The State further objects to Trial Court’s Finding of Fact 148, because it is
unsupported speculation and conjecture, namely predicting that if Thompson had
called a character witness in the guilt/innocence phase of trial, then the door would
not have been opened into the applicant’s prior criminal history; and if so, then Judge
Bacon would have allowed the State to elicit inadmissible testimony from that witness;
and if so, then Thompson would have objected; and if so, then Judge Bacon would
have overruled that objection; and if so, then the appellate court probably would have
reversed the conviction.
Thus, the record does not support a finding of deficient conduct with respect
to trial counsels’ decision to reserve the character witnesses, including evidence of the
applicant’s safe and moral treatment of children, for the punishment stage of trial. See
Blott v. State, 588 S.W.2d at 592 (declining to "second-guess through hindsight" the
strategy of counsel, and providing that the fact that another attorney might have
pursued a different course will not support a finding of ineffectiveness).
In fact, the difficulty in deciding which witnesses to present in a trial or hearing
was evident in the instant habeas proceeding, where the applicant initially alleged that
trial counsel was ineffective for failing to call Cynthia Elaine Rankin to testify about
50
the complainant’s bad character for truthfulness and the applicant’s character for safe
and moral treatment of children, but abandoned this claim during the writ evidentiary
hearing. Cynthia Elaine Rankin testified in the motion for new trial hearing that she
was a self-employed attorney; that Rankin befriended the applicant around the fall of
2001; that Rankin also knew the complainant and her mother; that Rankin visited the
Dietrich home on many social occasions; that Rankin did not come to the applicant’s
trial, but would have if she had been contacted by the applicant’s attorneys; that
Rankin would not have required a subpoena to attend the applicant’s trial; that Rankin
knew the applicant’s reputation in the community for having safe and moral relations
with children, and his reputation was “very good;” that Rankin had an opinion about
the applicant’s character for having safe and moral relations with children, and her
opinion was that his character trait was “Exceptional;” that Rankin knew the
complainant’s reputation for truthfulness, and her reputation was bad; that Rankin
knew of Linda’s reputation in the community for truthfulness, and her reputation was
bad; that the applicant testified for Rankin in one of her civil trials involving a custody
battle; that Rankin thought the applicant’s testimony in her trial was crucial and “his
ability to testify made our case;” and, that Rankin believed that the applicant was
capable of testifying on his own behalf (VIII R.R. at 55-60).
On first glance, it appears that Rankin would have been an excellent witness for
the applicant to call during the guilt phase of trial; however, a closer look at her
relationship with the applicant reveals that she represented the applicant in his Harris
51
County prostitution case. See State’s Writ Exhibit A, judgment and sentence. Although this
claim was abandoned by habeas counsel during the instant proceeding, the
circumstances surrounding Rankin are illustrative of how a witness can potentially
surprise you with damaging evidence during trial, in that, if Rankin had been called by
trial counsel to testify in the applicant’s trial, there is a significant likelihood that the
prosecutor would have been able to elicit information on cross-examination about her
representation of the applicant in his prostitution case that occurred after he suffered
his serious head injury (I W.H. at 172-76).
The Fourteenth Court of Appeals also reviewed trial counsels’ decisions
regarding which witnesses to present to the jury when on direct appeal the applicant
claimed, in part, that he received the ineffective assistance of counsel at trial because
counsel only presented the testimony of Linda during the defense’s case-in-chief.
Dietrich v. State, No. 14-07-005410-CR, 2009 WL 838161 (Tex. App. – Houston [14th
Dist.] 2009)(not designated for publication). The appellate court overruled this issue,
and provided the following summary:
In sum, the record reflects that both attorneys who represented the
[applicant] reviewed the facts of the case, discussed their options with
[the applicant], and made strategic decisions regarding which witnesses
to call. “It is axiomatic that appellant’s constitutional right to counsel
does not mean errorless counsel where competency or adequacy of
representation is argued or judged purely by hindsight.”
Dietrich v. State, No. 14-07-005410-CR, 2009 WL 838161 *5 (quoting Holland v. State,
761 S.W.2d 307, 320 (Tex. Crim. App. 1988).
52
Thus, the trial court’s findings that trial counsels’ representation was deficient
with respect to failing to call various witnesses are not supported by the record and
are contrary to established law.
IMPEACHING THE COMPLAINANT
Trial Court’s Finding of Fact 101
Applicant had a Sixth Amendment right to cross-examine Samantha
and introduce evidence demonstrating that she made a prior false
allegation of sexual assault to undermine her credibility. Thomas v.
State, 669 S.W.2d 420, 423 (Tex. App ─ Houston [1 st Dist.] 1984, pet.
ref’d). He could have introduced evidence that she previously made
false allegations that she was sexually assaulted by an unknown
Hispanic male.
Trial Court’s Finding of Fact 102
Thompson performed deficiently in failing to elicit testimony about the
Hispanic male allegation and, if necessary, preserve the issue for
appellate review.
Trial Court’s Finding of Fact 129
Thompson and Morgan performed deficiently in failing to impeach
Samantha and, when necessary, make bills of exceptions or offers of
proof that Samantha made prior false allegations of sexual misconduct
against an unknown Hispanic male, made statements to Morehead and
Rives that undermined her credibility, and that Samantha had a bad
reputation for truthfulness. Cf. Catalan v. Cockrell, 315 F.3d 491, 493
(5th Cir. 2002); Everage v. State, 893 S.W.2d 219, 223 (Tex.
App.─Houston [1st Dist.] 1995, pet. ref’d); Ex parte Ybarra, 629 S.W.2d
943, 946 (Tex. Crim. App. 1982).
The State objects to Trial Court’s Finding of Fact 101-102 and 129, that trial
counsel’s conduct was deficient for failing to impeach the complainant about her
53
“false” accusation of being sexually assaulted by an unknown Hispanic male in
Strawberry Park in Pasadena, Texas, as they are contrary to established law.
The appellate and habeas records reflect that during a pretrial meeting with
witnesses, Thompson was told that the complainant had made a false accusation
about being sexually assaulted by an unknown Hispanic male in Strawberry Park in
Pasadena, Texas; that Thompson was informed by Linda that a medical exam was
conducted which established the falsity of the accusation; that Thompson believed
that the Dietrichs did not believe the complainant because they thought she was using
this accusation to cover up her staying out late; that Thompson was not aware of the
complainant writing any letter which admitted to the falsity of this accusation to
explain her coming home late; that Linda could not identify for Thompson the
doctor’s office or hospital where the medical exam took place; that Thompson knew
that he would have to prove the accusation was false before it would be admissible;
that the complainant never admitted to anyone that the accusation was false; that the
only evidence Thompson had about the statement’s falsity was the opinion of Linda,
the witness testifying to help the applicant; and that Thompson could not
independently prove the falsity of the Strawberry Park accusation (IX R.R. at 23-24,
26-28)(I W.H. at 186)(II W.H. at 162-66).
Therefore, Thompson made the strategic decision not to question the
complainant about the Strawberry Park accusation, and this strategic decision had
plausible bases in that Thompson believed that the trial judge would not allow this
54
line of questioning and hoped that the prosecutor, who was not aware of this
accusation, would unknowingly open the door to this evidence later in trial (I W.H. at
188-89, 196). Notwithstanding Thompson’s testimony at the writ evidentiary hearing
that “in hindsight” it was not a sound tactical decision not to ask the complainant
about the false accusation, Thompson’s decision was part of a reasonable trial strategy
in light of the fact that:
• Thompson was leading up to cross-examining the complainant
about the Strawberry Park accusation after his questioning of the
complainant concerning the false admission about committing
murder when the trial judge removed the jury and admonished the
defense;
• Thompson did not want to request a hearing or make a bill of
exception to determine the admissibility of the Strawberry Park
accusation, because he believed that the State did not know about
the Strawberry Park accusation, he did not want to lose the
element of surprise concerning this evidence, and he was “trying
to play it close to the vest;”
• Thompson, based on his knowledge of and experience with the
trial judge, believed that she would not have allowed questioning
the complainant about the Strawberry Park accusation after a
hearing to determine its admissibility; and,
• Thompson was still hoping that the State might open the door to
evidence of the Strawberry Park accusation later in trial.
(I W.H. at 188-190, 194, 197)(II W.H. at 239).
Even assuming that an allegation of being raped by a stranger in a public park
was determined to be similar to the complainant’s accusation against the applicant,
who was her step-father, there was no evidence presented at trial or on habeas that
the Strawberry Park accusation was, in fact, false. Therefore, Judge Bacon would not
55
have committed reversible error by prohibiting Thompson from questioning the
complainant about the Strawberry Park accusation. See Lopez v. State, 18 S.W.3d 220,
222-26 (Tex. Crim. App. 2000)(providing that the trial court maintains broad
discretion in determining if a prior accusation is admissible, and requiring a showing
that the prior accusation is false and similar to the charged offense) (emphasis
added). Although the lower court opinion provided by the trial court in Finding 101
has no precedential value in the instant proceeding, it does confirm that before a prior
accusation by the complainant is admissible it must be shown to be false. See Thomas
v. State, 669 S.W.2d 420, 423 (Tex. App.─Houston [1st Dist.] 1984, pet. ref’d)(holding
that the false accusation was admissible where the appellant showed, through the
admission of the complainant and the testimony of her mother, that at least one of
the prior accusations was false).
The applicant cannot show that Thompson provided the applicant with
objectively deficient representation for failing to impeach the complainant with the
Strawberry Park accusation or make a bill of exception or offer of proof on this issue,
because the trial court would have properly excluded any testimony on this issue. See
Wiggins v. Smith, 539 U.S. at 521 (for ineffective assistance of counsel claims, a
defendant must meet the standard established in Strickland by showing that “counsel’s
performance was deficient and that the deficiency prejudiced the defense”).
Therefore, the State objects to Trial Court’s Findings of Fact 101-102 and 129, as they
56
are not supported by the appellate and habeas records and are contrary to established
law.
Trial Court’s Finding of Fact 115
Thompson should have discovered Samantha’s statements from the
MySpace communications and used them to impeach her. He did not
ask the court to order Keagle to disclose them but admits that he should
have discovered them as a result of the State’s open file (1 H.R.R. 228,
335). His failure to do so constituted deficient performance.
The State objects to the Trial Court’s Finding of Fact 115, as it mischaracterizes
the content of the MySpace messages sent from the complainant to Charles
Morehead. Applicant’s Ex. 4 (MySpace messages admitted in writ evidentiary hearing).
Further, because the record reflects that Thompson was unaware of these messages
prior to trial, and it is unclear whether they were even available, his conduct was not
deficient for failing to impeach the complainant with the messages (I W.H. at 225); See
also, Thompson’s affidavits; supra at ____ (more detailed discussion of the content of the
message); Harrington v. Richter, 562 U.S. at 104-12 (deficient conduct exists where an
attorney’s representation amounted to incompetence under “prevailing professional
norms”).
Trial Court’s Finding of Fact 128
Morgan admits that his failure to make a bill of exceptions or offer of
proof [regarding lies the complainant told her mother] was inadvertent
and not strategic (AX 3 at 2). He performed deficiently in this regard.
57
The State objects to Trial Court’s Finding of Fact 128, that trial counsel should
have made a bill of exception or offer of proof after the trial court sustained the
prosecutor’s objection to their attempt to impeach the complainant through
questioning Linda about the complainant lying on many occasions, as this finding is
not supported by the record and is contrary to established law.
Morgan asked Linda during direct examination how she would characterize the
complainant’s truthfulness, and Linda responded, “Not very high;” that Morgan asked
Linda if she had caught the complainant telling stories that were not true on few or
many occasions; that the prosecutor objected on grounds of improper character
evidence and relevance; and, that the trial judge sustained the prosecutor’s objection
(III R.R. at 139).
Morgan elicited testimony from Linda about the complainant’s character for
being untruthful, which is specifically allowed under Rule 608(a) of the Texas Rules of
Evidence. The trial court properly sustained the prosecutor’s objections to Morgan’s
attempt to elicit testimony from Linda about her catching the complainant telling few
or many lies in the past, as this was an attempt to introduce specific instances of the
complainant’s conduct to establish her general character for being untruthful which
was prohibited under Rule 608(b). See also, Hammer v. State, 296 S.W.3d at 563
(specific instances of lying are generally not admissible).
The record does not support a finding that Morgan’s conduct was deficient
with respect to his failure to make a bill of exception or offer of proof on Linda’s
58
potential testimony about catching the complainant telling lies in the past, as this
testimony was properly excluded under established law. Id.
LACK OF PREJUDICE
Trial Court’s Finding of Fact 152
Counsel’s deficient performance significantly contributed to the
conviction. Had the jury not heard inadmissible, prejudicial evidence
and had counsel presented favorable testimony that would have
undermined Samantha’s credibility, there is a reasonable probability
that the outcome of the proceeding would have been different. See
Strickland, 466 U.S. at 696 (“verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors
than one with overwhelming record support”).
Trial Court’s Finding of Fact 153
But for counsel’s errors, considered collectively, there is a reasonable
probability that the jury would have acquitted applicant or deadlocked.
Had counsel preserved error regarding the voir dire examination or had
the court overruled timely objections to the inadmissible testimony, or
excluded admissible testimony and counsel preserved error, there is a
reasonable probability that any conviction would have been reversed on
appeal.
Trial Court’s Finding of Fact 154
Applicant’s conviction is not worthy of confidence, and he is entitled to
a new trial.
The State objects to Trial Court’s Findings of Fact 152-54, as they are not
supported by a review of the trial and habeas records.
The trial court is correct that the outcome of the applicant’s trial “hinged on
whether the jury believed [the complainant] beyond a reasonable doubt.” Trial Court’s
Finding of Fact 150. On August 31, 2007, two months after the applicant’s trial,
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Morgan testified in the applicant’s motion for new trial hearing that he believed the
jurors had made up their mind once the complainant testified, and that some of the
jurors were crying in the jury box after her testimony (VII R.R. at 23). Simply put –
the jury believed the complainant – despite the delayed outcry and her own mother
testifying against her.
In light of this, and notwithstanding any alleged deficiency in defense counsel’s
representation, the applicant failed to establish prejudice in the instant proceeding. See
Wiggins v. Smith, 539 U.S. 510, 521 (2003)(for ineffective assistance of counsel claims, a
defendant must meet the standard established in Strickland by showing that
“counsel’s performance was deficient and that the deficiency prejudiced the defense”).
THE PUNISHMENT PHASE
Trial Court’s Finding of Fact 162 (partial)
…The Court finds Thompson’s testimony shifting from believing on
direct examination that the burglary was a final conviction to later being
led by the prosecutor now testifying he believed it was a “true deferred”
to be curious, puzzling and not credible.
The State objects to the above portion of Trial Court’s Finding of Fact 162 as
not supported by the record. Although deference is usually given to the trial court’s
credibility determinations, this is a credibility determination made on Thompson’s
testimony in the motion for new trial hearing – testimony that the current trial judge
did not observe. Judge Bridgwater, after hearing the testimony of Thompson and the
other witnesses, denied the applicant’s motion for new trial (X R.R. at 70). Further, a
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review of Thompson’s entire testimony on this issue demonstrates that his testimony
was not “shifting,” but rather that he was unsure of the final disposition of the
Maryland prior, as follows:
On direct examination
COUNSEL: Okay. Going back to the prior conviction, would it
be true that neither you, as the Defense attorney, or
the State ever got the documents regarding the out
of state charge, conviction or whatever it was?
THOMPSON: Correct.
COUNSEL: And why did you decide not to purse that?
THOMPSON: To get documentation that our client was not
probation-eligible?
COUNSEL: Well, I mean, you didn’t really - - you hadn’t
examined the documents to really know whether or
not he was probation-eligible; isn’t that correct?
THOMPSON: Well, you know, we had filed the application on that,
based on his testimony that - - getting those, the J
and Ss from up north would have only hurt us in a
sense. The State was having trouble finding it. I had
been in touch with Alexis Gilbert who was the prior
prosecutor regarding that because we were worried
about, you know, a reindictment type of situation
with the prior allegation.
She had indicated the letters had been sent. Nothing
was found regarding that. Based on my experience
as a prosecutor, someone had gone and tried to look
for that and hadn’t been able to find that. The
simple thing to do would have been to pick up the
phone, hire an investigator up there and say, Go
down to the courthouse and get it. If we had done
that, my belief is some clerk would have gone, “Hey,
State, we found these J and Ss you’re looking for,”
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and sent them off to the State which would have
hurt our client.
COUNSEL: There is one other possibility, isn’t there, that those
documents could have proved that it wasn’t a final
felony conviction, or that if it was a final felony
conviction, that it was invalid?
THOMPSON: That is a possibility, yes, ma’am.
COUNSEL: But you didn’t check that out?
THOMPSON: Strategically I believed it would have been in my
client’s - - it was not in my client’s best interest to
produce those documents and possibly have them
forward to the State.
COURT: When you said that you filed an application, are you
talking about the application for probation?
THOMPSON: Yes, sir.
COURT: Go ahead.
COUNSEL: Okay. But had it not been a final conviction, you
could have known - - voir dired the jury on
probation, you could have prepared witnesses for a
probation argument in the punishment hearing.
THOMPSON: Well, based on our discussions with Dietrich, I
believed it to be a final conviction.
(X R.R. at 39-41) (emphasis added).
On cross-examination
STATE: And, in fact, you thought his conviction - - excuse
me - - his burglary of a habitation out of Maryland,
you thought, in fact, they were a true deferred that
had been terminated and, therefore, could not be
used against him? At some point you thought
that, correct?
THOMPSON: Correct.
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STATE: Because you filed a motion for probation?
THOMPSON: Well, when we re-questioned him about that, he
indicated he was uncertain about that. And out of
an abundance of caution, we chose to file that
application and have him testify regarding that.
STATE: And, in fact, Mr. Thompson, if you would have
found out that those were convictions out of
Maryland, you would have not, under the Code of
Ethics, professional responsibility, been able to file
that motion for probation in good faith, would you
have?
THOMPSON: Correct.
STATE: So if you would have known it wasn’t a deferred,
you couldn’t have even filed the motion for
probation?
THOMPSON: Correct.
STATE: And you remember the State - - or maybe you don’t
remember - - the State did voir dire about
probation?
THOMPSON: They did. We had a limited amount of time on voir
dire. I believe it was 30 minutes.
(X R.R. at 71-72) (emphasis added).
Thus, the trial court’s credibility determination cannot be supported by a
review of the testimony as a whole.
Trial Court’s Finding of Fact 191
Thompson performed deficiently in failing to adequately investigate
applicant’s criminal record. Ex parte Poole, 738 S.W.2d at 286; Ex parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Ex parte Jordan, 879
S.W.2d 61, 62 (Tex. Crim. App. 1994); Ex parte Langley, 833 S.W.2d 141,
143 (Tex. Crim. App. 1992).
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The State objects to Trial Court’s Finding of Fact 191, that trial counsel
performed deficiently by failing to investigate the applicant’s criminal record in
Maryland to determine whether he had a final felony conviction, as this finding is not
supported by a review of the record as a whole, including the testimony of Thompson
regarding his strategic reasons for this decision.
On June 26, 2007, the applicant filed a motion for community supervision in
which he indicated that he “was given 7 yrs. Probation before Judgment in Maryland
22 yrs ago” (I C.R. at 54). The applicant testified in the punishment phase of trial that
he had gotten in trouble in Maryland for burglary and received a seven-year
“probation before judgment” for this burglary but was not convicted for that offense
(V R.R. at 40-41). The trial court’s punishment charge included an instruction that
the jury could assess community supervision as the applicant’s punishment (I C.R. at
69-70). Thompson argued in punishment summation that the applicant was eligible
for probation because he received a “deferred” in Maryland (V R.R. at 70).
A review of the appellate and habeas records reflects that Thompson made the
strategic decision not to initiate or conduct any independent investigation into the
applicant’s Maryland case, and this strategic decision had the plausible bases of (a)
allowing Thompson to ethically assist the applicant in attempting to obtain
community supervision from a jury if the applicant was convicted as Thompson was
unsure about whether the Maryland case was a final felony conviction; and (b) not
assisting the State in possibly securing official court documents from the Maryland
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case sufficient to establish the finality of the felony conviction in order to avoid the
State possibly re-indicting the applicant with some enhancement allegation or proving
to the jury that the applicant had a final felony prior conviction. This decision not to
initiate or conduct any independent investigation into the applicant’s Maryland case
was part of a reasonable trial strategy in light of the fact that:
• Thompson knew about the applicant’s 1985 breaking and entering
case in Maryland from conversations he had with the applicant,
and the State’s pretrial notice of the applicant’s prior criminal
history;
• Thompson initially believed, based upon information from the
applicant, that the Maryland case was a final conviction; however,
after re-interviewing the applicant, Thompson thought that he
was placed on a “deferred” probation, which was terminated and
could not be used against the applicant;
• Thompson did not think that the State could secure the official
documents to establish the finality of this conviction, and did not
believe the documents in the State’s file were sufficient;
• Thompson reviewed the documents pertaining to this case in the
State’s file at each court setting, checking to see if the State had
received any additional documents; however, he did not ask the
prosecutor about them directly because he did not want to share
his concerns;
• Thompson never obtained the documents to determine if the
applicant’s Maryland case was a final felony conviction;
• Thompson did not want to investigate further or obtain the
official judgments from Maryland, because he was concerned that
if he looked into it further it would be a felony conviction;
• Thompson was concerned that any investigation that he initiated
might have assisted the State in securing official judgments from
Maryland which could result in the applicant not being
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“probation-eligible” or in the State re-indicting the applicant with
the prior conviction alleged for enhancement purposes;
• Thompson concluded that it was not in the applicant’s best
interests to attempt to locate the official judgments from
Maryland, and made a strategic decision not to do so;
• Thompson did not believe the State could prove the Maryland
case was a felony; and did not believe the documents ultimately
admitted over his objection were sufficient judgments;
• discussions at the bench regarding the Maryland prior, included
that the applicant may be eligible for the probation instruction if
he received a disposition similar to a deferred adjudication in
Texas;
• Thompson felt that it was important to get a probation
instruction in the jury charge, because it allowed him to argue for
probation and, even if the jury assessed a prison sentence, he
hoped the lowering of the punishment range would skew the
sentence lower;
• because Thompson had a good faith basis to believe the Maryland
prior might not be a felony conviction, he assisted the applicant in
filing a “motion for probation,” disclosing the Maryland case by
inserting the language “I was given seven years probation before
judgement in Maryland 22 years ago;”
• Thompson could not have ethically assisted the applicant in filing
a motion for probation if he was aware that the applicant’s cases
in Maryland were final felony convictions, not deferred
probations;
• that Thompson argued for the trial court to include a probation
instruction in the jury charge even though Thompson did not
know whether the defense was entitled to such a probation
instruction;
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• although the jury ultimately chose to assess a prison sentence, the
trial court instructed the jury on the applicant’s eligibility for
community supervision;
• Thompson was able to argue for the jury to assess probation, as
follows:
Now, you have been given a wide range in the
Charge to consider, anywhere from five years
probation to ten years probation, anywhere in that.
All the way from five years in jail all the way up to 99
years or life and/or a 10,000-dollar fine.
That gives you probably the widest range of
discretion of any offense out there and what to do . .
.
Now, you know, we have to prove by a
preponderance of the evidence that he is probation
eligible. And this happened in Maryland and you
haven’t heard any testimony from a lawyer who
practices in Maryland. But you have heard that his
belief is that his sentence was suspended. In fact, a
deferred, and that his is still eligible; and,
• Thompson’s goal was to convince the jury to assess the
applicant’s punishment with a probated sentence, not to be
correct about the status of the Maryland prior.
(V R.R. at 44, 67, 70)(Thompson’s objection to the admission of the Maryland
documents and excerpts from closing argument regarding probation)(IX R.R. at 13-
14, 39-41, 71-75)(II W.H. at 24, 43-48, 53-56, 197-202, 211-14).
The trial court’s finding that Thompson performed deficiently when he failed
to initiate or conduct any independent investigation into the applicant’s Maryland case
is not supported by the trial and habeas records, as Thompson made a strategic
decision not to do so based on an evaluation of the potential risks and rewards at the
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time of trial. See Blott v. State, 588 S.W.2d at 592 (declining to "second-guess through
hindsight" the strategy of counsel, and providing that the fact that another attorney
might have pursued a different course will not support a finding of ineffectiveness);
contrast, Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987) (counsel relied on
misinformation from prosecutor, did no independent investigation, and had no
strategy for this decision); Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991)
(defendant’s punishment was enhanced with a prior that could not be used and
counsel did not know the applicable law); Ex parte Jordan, 879 S.W.2d 61, 62 (Tex.
Crim. App. 1994) (invalid out-of-state case where the defendant had not waived
counsel was used to enhance his punishment); Ex parte Langley, 833 S.W.2d 141, 144
(Tex. Crim. App. 1992) (defendant’s sentence was enhanced with a case where he
received shock probation).
Trial Court’s Finding of Fact 192
As a result of his inadequate investigation, Thompson also performed
deficiently in failing to advise applicant not to testify and to rest behind
the State. Cf. Menefee v. State, 175 S.W.3d 500, 505-506 (Tex. App. ─
Beaumont 2005, no pet.); Cooper v. State, 769 S.W.2d 301, 305 (Tex.
App. ─ Houston [1st Dist.] 1989, no pet.).
Trial Court’s Finding of Fact 192 regarding trial counsel’s advice to the
applicant after the State rested, is not supported by the record and is contrary to
established law.
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Morgan presented mitigation testimony in the punishment phase from John
Williams, David Taft, Douglas Phoenix, James Rozelle, and Nicholas Hunt, the
complainant’s brother (IV R.R. at 34-36)( V R.R. at 4-6, 11-13, 20-22, and 23-25).
The applicant testified in the punishment stage that he worked as a traffic light service
technician; was involved in a job-related accident in 2002 from which he suffered
serious injuries, including a hole in the skull; was in a coma for a week and a half; had
to subsequently undergo physical therapy to re-learn to walk, speak, and use the right
side of his body; was separated from Linda for about a year and a half; could comply
with all conditions of probation set out by the trial court; had a prior conviction for
prostitution from soliciting a 45-year-old woman; had a burglary offense in Maryland
that resulted in a seven-year term of “probation before judgment;” was not convicted
for the burglary offense in Maryland; understood but did not agree with the jury’s
verdict; and did not commit and would not take responsibility for the sexual assault
offense against the complainant (V R.R. at 32-42).
Thompson did not provide the applicant with objectively deficient conduct
with regard to his advice in the punishment phase of the applicant’s trial in light of the
fact that:
• Thompson strongly advised the applicant not to testify in the guilt
stage of trial, and the applicant accepted Thompson’s advice and
chose not to testify in the guilt stage;
• Thompson believed that the applicant would have testified in the
guilt stage if Thompson would have wanted the applicant to do
so;
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• Thompson prepared the applicant to testify by questioning him in
a “mock fashion” during two office meetings;
• Thompson and Morgan concluded that the applicant should not
testify in trial, based on the applicant’s angry responses to mock
cross-examination questions; his lack of memory due to the head
injury; and their belief that the applicant could not have withstood
a cross-examination by a competent prosecutor;
• although Thompson recommended that the applicant not testify
in the punishment stage, his recommendation was not “strongly
worded,” because Thompson did not think that the applicant’s
punishment testimony would have helped or hurt the applicant
much after the jury’s guilty verdict and his testimony could help
prove that he was eligible for probation;
• the applicant told Thompson that he wanted to testify in the
punishment phase of trial;
• despite Thompson’s recommendation that the applicant not
testify in both the guilt and punishment stages of trial, the
applicant made the personal decision to testify in the punishment
stage;
• once the applicant insisted on testifying, the defense put on
numerous witnesses who, even when informed about the
applicant’s prior criminal history, provided strong evidence of the
applicant’s good character; that the applicant had support in the
community if granted probation; and that they knew him well and
trusted him around their children;
• in his closing arguments to the jury on punishment, Thompson
pointed out the State’s failure to call any witnesses on the impact
of the offense, and contrasted this fact with the applicant’s strong
support, as follows:
They can consider the State’s failure to call certain
witnesses. And they didn’t call any witnesses. You
didn’t get to hear any impact testimony from their side.
And I think that speaks volumes.
What you did hear from Mr. Dietrich’s side, you heard
concerned friends that have known him for years in
70
this community, work with him closely. His boss, in
spite of all this, ex-HPD officer, says, “You know
what? He’s got this job. He still has this job. He can
come back and work here if he wants.”
You’ve heard from two life-long friends. “You know, I
trust him. I trust him around my kids.” Yeah, and
both of them said, “I didn’t believe this happened.”
Take that into account.
Then you heard from two young people that Mr.
Dietrich has mentored throughout their lives and
helped. Never saw anything inappropriate. Thinks he
is a good person. That you can consider in assessing
the appropriate punishment.
And, lastly, we put Mr. Dietrich on the stand so you
could here [sic] him and what he had to say.
• Thompson agreed that, in hindsight, the applicant should have
heeded his advice and not testified in the punishment phase based
upon the feedback he received after the trial; and finally,
• trial counsel could not have advised the applicant to rest
immediately after the State rested, because the applicant exercised
his right to testify in the punishment stage.
(V R.R. at 69-70)(excerpt from Thompson’s closing argument on punishment); (IX
R.R. at 16-20, 74); (II W.H. at 51-52, 56-57, 203-12); see also, Rock v. Arkansas, 483 U.S.
44, 49 (1987)(providing that “it cannot be doubted that a defendant in a criminal case
has the right to take the witness stand and to testify in his or her own defense”).
Thus, because the applicant exercised his right to testify in his own defense and
trial counsel’s advice was reasonable under the circumstances, Trial Court’s Finding of
Fact 192 is not supported by the record and is contrary to established law.
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IV.
Conclusion
The State respectfully requests that the Court of Criminal Appeals find that the
trial and habeas records do not support the trial court’s October 9, 2015 findings of
fact and conclusions of law recommending habeas relief. Additionally, the State
respectfully requests that the Court of Criminal Appeals enter an order denying the
applicant relief on all grounds urged in the instant post-conviction habeas petition.
V.
A copy of the State’s Objections to the Trial Court’s Findings of Fact, Conclusions of
Law and Order in cause number 1072796-A has been sent electronically to
josh@joshschafferlaw.com and by regular mail to:
Josh Schaffer
Counsel for Applicant
1301 McKinney, Suite 3100
Houston, Texas 77010
and to:
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Brian Wice
440 Louisiana, Suite 900
Houston, Texas 77002
SIGNED this 28th day of December, 2015.
Respectfully submitted,
/s/ Linda Garcia
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713-274-5990
713-755-5240 (fax)
Texas Bar ID # 00787163
garcia_linda@dao.hctx.net
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