WR-82,450-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/30/2015 2:50:45 PM
Accepted 7/30/2015 4:47:47 PM
WR-82,450-01 ABEL ACOSTA
CLERK
EX PARTE § IN THE COURT
RECEIVED
§ COURT OF CRIMINAL APPEALS
DAVID CLIFFORD PEDDER, Jr. § OF 7/30/2015
ABEL ACOSTA, CLERK
§
§ CRIMINAL APPEALS
IN THE COURT OF CRIMINAL APPEALS
OBJECTION TO THE DISTRICT COURT’S FINDINGS OF FACT AND
CONCLUSIONS OF LAW
TO THE HONORABLE JUDGES OF SAID COURT:
This application concerns a conviction from the 128th District Court,
Orange County, Texas. The Cause Number was: A100640-R. The Trial
Judge was the Honorable Courtney Arkeen. Applicant was represented at
trial by Bruce Smith (SBOT: 18543300). Judgment was entered on May 18,
2012 whereby Applicant was convicted of Aggravated Sexual Assault and
sentenced to forty (40) years.
Applicant previously filed a pro se writ application to this Court, the
Cause Number was No. WR-82,450-01. On January 14, 2015, the Court of
Criminal Appeals, entered an order regarding evidence gathering. Applicant
filed an Amended Writ on April 10, 2015. At the Court’s direction and in
accordance with the Rules, Applicant filed his Memorandum in Support of
the Writ and accompanying affidavits and exhibits along with a proposed
Findings of Fact and Conclusions of Law.
The State chose not to file any affidavits from witnesses and filed her
proposed Findings of Fact and Conclusions of Law on July 9, 2015, two
days after the deadline set by the District Court. Within twenty-four hours,
the District Court filed Findings of Fact and Conclusions of Law that
adopted – nearly verbatim - the State’s proposal. The District Court failed to
address three of the four issues raised by the Applicant and provided
conclusory assertions unhinged from the facts of the case and contrary to
clearly established State and Federal law. Resultantly, Applicant files these
objections to the District Court’s Findings and asks this Court to exercise its
broad power as ultimate fact finder in habeas proceedings to reach a
different result than the District Court.
I. The District Court’s Findings of Fact and Conclusions of Law do
not comport with the record, the evidence submitted as part of the
writ, and disregard clearly established State and Federal law.
In Ex Parte Reed, the Court of Criminal Appeals made clear that it
remains the ultimate factfinder in writ jurisprudence. 1 When the Court’s
independent review of the record reveals that the trial judge’s findings and
conclusions are not supported by the record or the law, the Court may
1 Ex Parte Reed, 271 S.W.3d 698, 727 (Tex.Crim. App. 2008).
2
exercise independent authority and make alternative findings and
conclusions.2 This case necessitates that independent judgment.
The District Court chose not to have any hearings on this matter and
simply asked the parties to submit affidavits.3 As such, the Court could not
observe the demeanor of the witnesses nor discern their credibility in person.
No deference should be given, then, to the Court’s assessment of witness
credibility.
Trial counsel, whose performance was the subject of two of
Applicant’s issues, submitted a two page affidavit that failed to adequately
address the issues queried by the Court, much less the numerous
shortcomings raised by the Writ itself. The State chose not to submit any
affidavits or evidence to the Court, nor to refute or undermine the evidence
and affidavits submitted by the Applicant.
1. Objection to finding counsel’s performance did not fall below
an objectively reasonable standard.
In finding of fact number 18 and conclusion of law number 2, the
Trial Court concludes that Bruce Smith’s representation of David Pedder at
trial did not fall below an objective standard of reasonableness. This
conclusion is not supported by the record. Bruce Smith failed to adequately
2
Id.
3
COPY OF SCHEDULING ORDER, Ex. 1. It is worth noting that the District Court
only requested proposed findings of fact and conclusions of law from the State.
3
investigate the case, failed to file outcry witness and 404(b) motions,
allowed reams of inadmissible evidence go to the jury without objection,
failed to give an opening statement, fumbled his attempt to put on the
defense he thought was crucial to the case, performed little or no cross
examination of important State witnesses, and failed to call numerous
available witnesses to support his case. The Court, though, makes the
sweeping conclusion that “Trial Counsel articulated plausible and credible
reasons for his performance in this case” without even addressing his
failings beyond his decision not to call additional witnesses.
The Trial Court makes the conclusory remark that “Trial Counsel did
investigate and receive evidence from the State prior to the beginning of
trial” but fails to indicate what that investigation was. Of course, the Court
cannot support that conclusion with facts because there are no facts in the
record to support it. Smith could not recall whether he even looked at the
State’s file and the witnesses all indicate that he never spoke with them in
the years leading up to trial.
And, Bruce Smith’s self-serving affidavit further illustrates the
distance between the Court’s conclusions and reality. For example, he
indicates he “drove by” the shop where the alleged assault occurred, but he
4
never went in.4 He drafted motions he never filed and did not actually file
any motions at all. In a first-degree felony trial, his performance amounts to
no counsel at all. He was merely a tour-guide to the Texas Department of
Corrections.
2. Objection to finding that not interviewing or calling critical
witnesses was strategic
The Court concludes, in finding of fact 13, that counsel elected “as a
trial strategy” not to call additional witnesses other than Don Freeman. The
record completely fails to present a strategic rationale for trial counsel not
interviewing relevant witnesses. It was counsel’s failure to investigate and
interview relevant witnesses that resulted in him not calling additional
exculpatory witnesses – not some well thought out trial strategy.
The Court and the State both indicate that “trial counsel felt that the
witnesses he did call were most impressive and best witnesses to call” and
infer that additional witnesses would have been cumulative. First, the
affidavit of trial counsel does not address why he did not interview the
witnesses who submitted affidavits as part of the Writ. Secondly, though, the
only witnesses he did call were Don Freeman – who was there based on a
subpoena from the State – and the Applicant. The fact is, trial counsel never
4
Baker’s Transmission is blocks from the courthouse and anyone driving from I-10 to the
courthouse would pass Baker’s.
5
interviewed any of the sixteen other witnesses who submitted affidavits on
behalf of the applicant. And he first met with his purported key witness, Don
Freeman, the first day of trial.5 He provided no strategic reason for failing to
interview witnesses, much less calling them.6
More particularly, Bruce Smith indicates: “Mr. Freeman in my option
[sic] was so convincing in what he was able to testify to that we made the
decision that it would not be necessary to take a chance and call other
witnesses who would simply be repetitive and redundant and would not be
as impressive to the jury as Mr. Freeman.”7 While Applicant strenuously
disagrees that could be a logical trial strategy, it is the logical result of a
completely inept investigation. To repackage this omission, years later, as a
strategic decision is the height of revisionist history. The plain fact is that
Smith did not interview or investigate these witnesses and was in no position
to assess whether their testimony would have been cumulative or valuable.
The State and the District Court latch on to the notion of avoiding
cumulative witness testimony as a strategic decision too. Yet, the State
clearly does not believe that an effective strategy because it called a host of
witnesses to repeat the hearsay of the complainant’s story. And Bruce Smith
5
See Exhibits H-L, N-W, AA-CC of Memorandum in Support of Writ.
6
See Exhibit H (Bruce Smith Affidavit) of Memorandum in Support of Writ.
7
See Exhibit H (Bruce Smith Affidavit) of Memorandum in Support of Writ.
6
failed to object to it on numerous occasions. In fact, the State did not even
get to the complainant’s testimony on the first day of trial because it called
so many witnesses to bolster its case.
3. Objection to finding that the outcome of the case would not
have been different had counsel performed adequately
The Court found, in finding number 20 and conclusion number 4, that
Applicant failed to establish that the outcome of the proceeding would have
been different but for counsel’s performance. This is obviously the only
conclusion the Court could reach after finding counsel’s performance was
adequate. However, it is likewise an unfounded and conclusory finding.
Any neutral observer, having reviewed the exhibits and affidavits submitted
by the Applicant would reach the contrary position.
Had Bruce Smith interviewed the witnesses who prepared affidavits
he could have decided who among them to call at trial. It simply defies
logic that calling someone other than the business owner (who has a built in
bias) would have hurt him in front of the jury or seemed cumulative. Is it
really the District Court’s conclusion that calling the Sherriff as a witness
would have been cumulative and redundant? Or a woman? Or someone
who did not really even know the applicant and would seem particularly
unbiased? Put differently, if the Court or the District Attorney were charged
7
with a first degree felony, would the representation Bruce Smith provided
David Pedder be acceptable for them?
Moreover, the language used by the Court indicates a
misunderstanding of the law. The Fifth Circuit has concluded that
reasonable probability of a different verdict need not be proved by a
preponderance of the evidence, but rather can be shown by undermining
confidence in the outcome.8 In other words, it need not even be proof that it
is more likely than not the outcome would have been different. The Court –
in one of its very few deviations from the State’s proposed findings of fact
and conclusions of law – seems to acknowledge the prejudice by conceding:
“Trial Counsel’s performance can be criticized in light of the result.” Given
the extremely limited representation provided by Bruce Smith and the
overwhelming evidence of impossibility submitted to the Court by the
applicant, confidence in the outcome of this case must be curtailed.
4. Objection to finding regarding the alarm code
The Court found that testimony was presented that Applicant did not
know the alarm code. But, the trial record indicates that the “alarm code” at
Baker’s Transmission was never mentioned before the jury despite the
8
See Williams v. Cain, 125 F.3d 269, 279 (5th Cir. 1997). See also Applicant’s
Memorandum in Support of Writ, 9-10.
8
State’s suggestion and the Court’s adoption that it was.9 This is important,
because Bruce Smith’s inept investigation did not include a visit to the store
or pictures of the scene. As such, he had no way of knowing there was an
alarm at all. In the Court’s rush to maintain its conviction, it clearly did not
actually review the record and simply adopted verbatim the proposal of the
State.
II. The District Court’s Findings of Fact and Conclusions of Law
neglect to address three of the four issues raised by the Applicant’s
Writ
The District Court did not address Applicant’s Strickland claim for
ineffective assistance at the punishment phase of trial. The District Court
did not address or make finding on Applicant’s Brady claim, even in
passing, and made no recommendation on that claim. The District Court did
not address applicant’s Actual Innocence claim. Each of these claims has
real merit and they were not considered at all in the Court’s findings.
III. Conclusion
The District Court’s Findings of Fact and Conclusions of Law tracked
the language of the State’s proposal and were contrary to the record and
clearly established state and federal law. The District Court brought no
scrutiny to bear in a case where a citizen received inadequate representation
9
Trial Court’s FFCL # 14.
9
of counsel and received a forty year prison sentence as a direct result.
Additionally, the District Court neglected to address viable issues raised by
the Writ that deserve examination given the numerous problems with this
trial.
PRAYER
Based on the foregoing, Applicant asks this Court to conduct an
independent review of the record, exercise its independent authority, and
make alternative findings and conclusions in support of a new trial for David
Pedder.
Respectfully submitted,
THE GERTZ LAW FIRM
2630 Liberty St.
Beaumont, Texas 77702
Tel: (409) 833-6400
Fax: (409) 833-6401
/s/ Ryan W. Gertz
By:
Ryan W. Gertz
State Bar No. 24048489
Attorney for David Pedder, Jr.
10
Pedder, David Clifford Jr.
Combined Opinion