Michael Don Denton v. State

fE~!L~fni
KEN PAXTON
ATTORNEY GENERAL OF TEXAS

VIA OVERNIGHT MAIL
If JUN 0B 2015 11!)
SEVENTH, COURT OF APPEALS
VIVIAN LONG, CLERK
June 2, 2015

Hon. Vivian Long, Clerk
Court of Appeals, Seventh District of Texas
Potter County Courts Building
501 South Fillmore, Suite 2-A
Amarillo, Texas 79101-2449

Re: Court of Appeals Numbers: 07-15-00181-CR, 07-15-00182-CR
Trial Court Case Numbers: 18,607-B, 18,608-B

Style: Michael Don Denton v. The State of Texas

To the Honorable Court of Appeals:

The Office of the Texas Attorney General, Criminal Appeals Division
submits this response to the Court's letter dated May 18, 2015, regarding the
issue of jurisdiction, in the above referenced appeal. We respectfully request
the Clerk bring this response to the attention of the Court and file it with the
papers of the appeal. Although this office is not directly representing the State
of Texas in this appeal, this office is submitting this response due to the unique
procedural posture of this case as a result of the United States District Court
for the Northern District gf 'f~xas, Amarillo Division conditionally granting
federal habeas relief. This Court has directed the State in its letter to show
why the court has jurisdiction over the appeals. Article 11.07 of the Code of
Criminal Procedure controls the method of pursuing an out-of-time appeal and
requires that appellant file a state habeas application requesting that form of
relief. While this may be true in the absence of a federal court order
conditionally granting habeas relief, Article 11.07 fails to address the situation
currently before this Court, that is, when a federal court has already found
that the state proceedings were constitutionally inadequate and has
conditionally granted the writ providing the petitioner an out-of-time appeal.
Instead, the case law of this Court's sister courts of appeals and the Texas
Court of Criminal Appeals suggests that this Court retains jurisdiction of
Denton's out-of-time appeal.

Post Office Box I 2548, Austin, Texas 787 I I -2548 • (5 I2) 463-2 I 00 • www. texasattorneygeneral.gov
 In both cause numbers 18607-B and 18608-B, Denton was charged with
delivery of a controlled substance, namely: cocaine in an amount of four grams
or more but less than 200 grams. Appendix A at 1. Denton pled guilty in both
causes and the judge, pursuant to a plea agreement, sentenced him to four (4)
years deferred adjudication probation. Id. at 1-2. On February 10, 2009 and
August 11, 2009, the State filed motions to revoke Denton's probation. Id. Both
times, the trial court allowed Denton to remain on probation. Id. The State
filed a third motion to revoke Denton's probation on February 17, 2010. Id.
On March 29, 2010, the trial court revoked Denton's probation and sentenced
him to twenty (20) years' imprisonment for both cause numbers, sentences to
run concurrently. Id. at 2-3

Denton filed notices of appeal in this Court, but never prosecuted the
appeals and, on October 27, 2010, Denton filed motions to dismiss both
appeals. Denton v. State, Nos. 07-10-00189-CR & 07-10-00190-CR, slip ops.
(Tex. App.-Amarillo, 2010, no pet.). On October 29, 2010, this Court granted
Denton's motions and dismissed both appeals. Id. Denton filed two state writ
applications under Article 11.07 in which he challenged his two convictions for
delivery of a controlled substance on June 22, 2011. Ex parte Denton, 76,206-
01, -02 (Tex. Crim. App. 2011). The Court of Criminal Appeals denied Denton's
state writ applications on September 21, 2011. Id. Denton filed two additional
state writ applications on June 3, 2012 in which he raised the ineffective-
assistance of appellate counsel claims at issue herein. Ex parte Denton, 76,206-
03, -04 (Tex. Crim. App. 2012). The Court of Criminal Appeals dismissed both
writ applications for abuse of the writ on August 1, 2012. I d.

Denton filed his federal habeas petition on September 4, 2012. Denton v.
Thaler No. 2:12-CV-192 (N.D. Tex. 2014). Following an evidentiary hearing
held on May 2, 2014, United States Magistrate Judge Clinton E. Averitte filed
a Report and Recommendation, on February 27, 2015 in which he
recommended conditionally granting Denton's federal writ petition. Appendix
A. United States District Judge Mary Lou Robinson adopted the Report and
Recommendation on March 17, 2015, and ordered Denton's convictions vacated
"unless Denton is afforded an out of time appeal with the assistance of counsel
within sixty (60) days from the date of the order." Appendix B.

In compliance with this Order conditionally granting relief, the trial
court appointed Denton appellate counsel on April15, 2015. Appendix C. On
April23, 2015, Denton's appellate counsel submitted his Motion to File an Out-
of-Time Notice of. Appeal. Docket entry dated 4/23/2015. This Court

2
subsequently issued a letter noting its concern regarding its jurisdiction and
directing appellant and the State to show why this Court has jurisdiction over
the appeals no later than May 28, 2015. Docket entry dated 5/18/2015. On May
26, 2015, this Court granted the State's motion to extend time to file its
jurisdictional statement to June 8, 2015. Docket entry dated 5/26/2015.

On May 20, 2015, after invoking the Court's jurisdiction by means of a
notice of appeal, appellate counsel then incongruously submitted a response
arguing that this Court lacks jurisdiction to hear these appeals. Docket entry
dated 5/20/2015. Counsel cites to State v. Morales 869 S.W.2d 941, 942 (Tex.
1994), In re Johnson, 390 S.W.3d 584, 585 (Tex. App.-Amarillo 2012, no pet.),
and Ex parte Coty, 418 S.W.3d 597, 598 (Tex. Crim. App. 2014), as well as,
Texas Rule of Appellate Procedure 25.2(b) in support of his argument. These
cases are distinguishable from the instant case, however, because they do not
involve the situation where a federal court has already found the state
appellate proceedings to have been constitutionally infirm and has
conditionally granted the appellant habeas corpus relief. It is well established
that "[h]abeas lies to enforce the right of personal liberty; when that right is
denied and a person confined, the federal court has the power to release him."
Fay v. Noia, 372 U.S. 391, 430-31 (1963), overruled on other grounds by
Coleman v. Thompson, 501 U.S. 722 (1991). Under a proper conditional grant
of a writ of habeas corpus, the federal court orders a prisoner's release unless
the state corrects the constitutional defect within a prescribed time period.
Smith v. Lucas, 9 F.3d 359, 366 (5th Cir. 1993). The conditional grant of the
writ gives the state court notice of the petitioner's impending release if the
state fails to take corrective measures. Id. at 367. Moreover, while not directly
on point, Smith held that the state's failure to take active steps to comply with
the terms of the conditional grant and its reliance on the petitioner's state
habeas filing were insufficient to comply with the federal court's order. Id. at
364-65.

The remedy for the constitutional error of ineffective assistance of
counsel on appeal is the granting of an out-of-time appeal. Schwander v.
Blackburn, 750 F.2d 494, 502 n.4 (5th Cir. 1985). "If the writ is conditionally
granted, the state, pursuant to available state procedures, may then take
whatever action it deems necessary, including reinstating or continuing state
court proceedings." Porchia v. State, No. 05-99-00379-CR, 2000 WL 876367, at
*2 (Tex. App.-Dallas July 5, 2000) (unpublished) (citing Billiot v. Puckett, 135
F.3d 311, 316 n.5 (5th Cir. 1998)). The effect of the conditional writ grant by a
federal court has been to return the petitioner to a point in the state court
proceedings where the constitutional error can be corrected. See id. at *3 ("The

3
practical effect of the federal court's conditional release order was to set aside
the constitutionally infirm sentencing hearing, returning appellant to the
point at which he stood convicted but not yet sentenced."); Jessup v. State, 18
S.W.3d 723, 724 (Tex. App.-San Antonio Feb. 16, 2000) (a case involving a
district court's order conditionally granting relief which explicitly provided
that his time for filing an appeal would run from the date of the Order's entry,
holding that "the granting of an out-of-time appeal returns the appellant to a
point that the appellant can begin the appellate process.").

This Court has the authority and is required to determine its own
jurisdiction. In re Risely, 190 S.W.3d 853, 854 n.3 (Tex. App.-Fort Worth,
2006); Perez v. State, 4 S.W.3d 305, 307 (Tex. App.-Houston 1999) ("This
Court, not any other, retains the power to determine the existence and limits
of its jurisdiction ...."). It appears that this particular jurisdictional issue, i.e.
the Court's power to hear a case when a federal court has conditionally granted
the writ providing for an out-of-time appeal, is an issue of first impression
before this Court. Notably, however, the undersigned has been unable to locate
any opinions. by this Court or its sister courts of appeals resulting in dismissal
for lack of jurisdiction because the federal court's conditional grant of habeas
relief providing for an out-of-time appeal had not been followed by the Court of
Criminal Appeals also granting an out-of-time appeal through a state habeas
application.

The Second Court of Appeals decided this very issue in Carmell v. State,
No. 02-97-00197-CR (Tex. App.-Fort Worth, 2009, pet. refd). The appeals
court was notified that the United States District Court for the Eastern District
of Texas conditionally granted Carmell relief unless, within 120 days of the
date of the order the state afforded Carmell an out-of-time appeal. Appendix I.
The appellate court ordered, on its own motion, that the original mandate was
recalled and the cause was reinstated on the court's docket. (citing to Tex. R.
App. P. 18.7, 19.3(b)). Id. Moreover, the Court of Criminal Appeals did not raise
any jurisdictional issues when that court accepted and ultimately denied
Carmell's PDR. Id.

The opinions by the other Texas intermediate courts suggest that this
Court has jurisdiction over Denton's out-of-time appeals because these cases
either proceeded without dismissal or were dismissed or reversed on other
grounds. For instance, in a case involving the conditional grant of habeas relief
by the Fifth Circuit unless the state afforded petitioner an opportunity to
present an out-of-time pro se appellate brief, the Fourteenth Court of Appeals
did not dismiss for lack of jurisdiction because of the appellant's failure to

4
pursue his out-of-time appeal through a state habeas application, but rather
disposed of the case on the merits and affirmed the trial court's judgment. See
Myers v. State, No. 14-96-00554-CR, 1999 WL 1041498, at *1 (Tex. App.-
Houston Nov. 18, 1999) (unpublished); Myers v. Johnson, 76 F.3d 1330, 1339
(5th Cir. 1996); Appendix D (Court of Criminal Appeals docket sheet showing
no state habeas application having been filed between the conditional grant of
relief and the date of the intermediate court's opinion). Nor did the Fifth Court
of Appeals dismiss appellant's out-of-time appeal conditionally granted by the
Fifth Circuit for failing to also file a state habeas application. White v. State,
No. 05-99-10762-CR, 2000 WL 1470159, at *1 (Tex. App.-Dallas Oct. 4, 2000)
(unpublished); White v. Johnson, 180 F.3d 648, 656 (5th Cir. 1999); Appendix
E (Court of Criminal Appeals docket sheet showing no state habeas application
having been filed between the conditional grant of relief and the date of the
intermediate court's opinion). Instead, the appellate court dismissed the
appeal because the appellant's point of error was not permitted and because
his notice of appeal was insufficient. White, 2000 WL 1470159, at *1.

In Jessup v. State, the Fourth Court of Appeals did not dismiss the
appellant's out-of-time appeal provided by the federal district court's
conditional grant of habeas relief due to the appellant's failure to pursue this
out-of-time appeal through a state habeas application, but rather dismissed it
due to the appellant's failure to file a notice of appeal. 18 S.W.3d at 724;
Appendix F (Court of Criminal Appeals docket sheet showing no state habeas
application having been filed between the conditional writ grant on July 14,
1998, and the date of the intermediate court's opinion). Finally, the Ninth
Court of Appeals did not dismiss appellant's out-of-time appeal initiated after
the federal district court's conditional grant of habeas relief, but rather
reversed and remanded for a new trial as a result of an incomplete record.
Martin v. State, 744 S.W.2d 658, 658-60 (Tex. App.-Beaumont Jan. 13, 1988);
Appendix G (Court of Criminal Appeals docket sheet showing no state habeas
application having been filed between July 18, 1984, the date the Fifth Circuit
affirmed the district court's conditional grant of habeas relief, and the date of
the intermediate court's opinion).

Nor has the Court of Criminal Appeals required the subsequent filing of
a state habeas application to invoke that court's jurisdiction following a federal
court's conditional grant of habeas relief. See Shiloh-Bryant v. Director, 104
F. Supp. 2d 696, 698 (E.D. Tex. May 8, 2000). In Shiloh, the federal court
conditionally granted relief, providing for an out-of-time appeal so that the
petitioner could file his PDR, which the petitioner filed immediately thereafter.
Appendix H. The Court of Criminal Appeals did not dismiss the petition as

5
being untimely or otherwise require the petitioner to file a state habeas
application requesting an out-of-time PDR, but instead refused the PDR. Id.

Article 11.07 of the Code of Criminal Procedure does not squarely
address the scenario where a federal court has already determined that the
state's appellate proceeding violated the petitioner's federal constitutional
rights and has conditionally granted habeas relief. "It is of the historical
essence of habeas corpus that it lies to test proceedings so fundamentally
lawless that imprisonment pursuant to them is not merely erroneous but void."
Fay v. Noia, 372 U.S. 391, 423 (1963). As a result of the constitutional error
during Denton's appeal found by the United States District Court, should the
state not provide Denton an out-of-time appeal, his writ will be granted.
Appendix B. The existing case law of the Court of Criminal Appeals and of this
Court's sister courts of appeals suggest that, in instances such as these, the
appellate courts have retained jurisdiction over an appellant's out-of-time
appeal. See also Porchia v. State, 2000 WL 876367, at *3 (holding that the
trial court retained jurisdiction until it formally re-sentenced appellant
following the federal court's conditional grant of habeas relief providing that
the writ should issue unless petitioner received a new sentencing hearing and
appeal).

Based on the foregoing, this Court has also retained jurisdiction over
Denton's out-of-time appeal.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

ADRIENNE McFARLAND
Deputy Attorney General for
Criminal Justice

6
 ~a~.w
SALLIE CHRISTIAN-CARNAL
Assistant Attorney General
State Bar No. 24006959

P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
Facsimile No. (512) 936-1280

cc: Warren L. Clark
Assistant Criminal District Attorney
Randall County Justice Center
2309 Russell Long Blvd., Suite 120
Canyon, TX 79105
wclark@randallcounty.org

John Bennett
Attorney at Law
P.O. Box 19144
Amarillo, TX 79114
AppealsAttorney@gmail.co

7
APP EN DIX
A
 Case 2:12-cv-00192-J-BB Document 73 Filed 02/27/15 Page 1 of 28 PageiD 1649

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

MICHAEL DON DENTON, §
§
Petitioner, §
§
v. § 2:12-CV-0192
§
WILLIAM STEPHENS, Director, §
Texas Department of Criminal Justice, §
Correctional Institutions Division, §
§
Respondent. §

REPORT AND RECOMMEN DATION TO GRANT
PETITION FOR A WRIT OF HABEAS CORPUS.

Came for consideration the Petition for a Writ of Habeas Corpus by a Person in State

Custody filed by petitioner MICHAEL DON DENTON. For the reasons set forth below, it is the

opinion of the undersigned United States Magistrate Judge that the petition be GRANTED and that

the convictions which are the subject of the petition for writ of habeas corpus be vacated unless

petitioner is afforded an out-of-time appeal within such reasonable time as the District Judge may

set.

I.
PROCEDURAL HISTORY

On January 10, 2007, petitioner was indicted in the 181 st Judicial District Court of Randall

County, Texas for two (2) offenses of delivery of a controlled substance in an amount of 4 grams or

more, but less than 200 grams. State v. Denton, No. 18,607-B and 18,608-B. Petitioner entered into

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a plea agreement for four (4) years deferred adjudication and a fine of$2,000 and, on July 26,2007,

pled guilty in both cases. The state trial court accepted petitioner's pleas and found the evidence

substantiated petitioner's guilt. The court entered an order deferring adjudication of guilt, placed

petitioner on four (4) years probation, and assessed a fme and restitution in accordance with the plea

agreement. Petitioner did not file a direct appeal challenging the order deferring adjudication of

guilt and assessing probation, the fine or the restitution.

In February and August 2009, the State moved to revoke petitioner's probation. Both times,

the trial court did not revoke, but allowed petitioner to remain on probation with additional

conditions. The court also imposed a 1-year extension of probation. On February 17,2010, the

State again filed a motion to revoke petitioner's probation alleging petitioner had violated the

conditions of his probation by (1) committing a new offense, and failing to (2) report to his

probation officer June 2009 through August 2009, (3) pay his fine and court costs, (4) submit to a

urinalysis in February 2010, and (5) participate in a residential treatment program. Petitioner pled

"not true" to the motion to revoke and to adjudicate. On March 15, 2010, petitioner retained

counsel, Mr. Terry McEachern, to represent him in the revocation proceeding. The State

subsequently waived the probation violation allegations of (1) the commission of a new offense and

(3) non-payment of fine and court costs. Vol. 4 at 68. On March 24, 2010, the state trial court held

a revocation hearing, receiving testimony from witnesses for both the State and petitioner. After the

hearing, the state trial court granted the State's motion to revoke finding petitioner had violated the

terms of his probation by failing to (2) report to his probation officer June 2009 through August

2009, (4) submit to a urinalysis in February 2010, and (5) participate in a residential treatment

program. The trial court adjudicated petitioner guilty of the original offenses and, after a

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punishment hearing at which a State witness provided the details of the original narcotics delivery

charges, petitioner was sentenced to twenty (20) years' imprisonment in each case, such sentences to

run concurrently. Trial counsel as well as the trial court advised petitioner of his right to appeal.

On Apri16, 2010, petitioner retained counsel, Mr. David Martinez, to appeal the sentences.

Mr. Martinez was paid a fee of$20,000 by petitioner's mother. On April26, 2010, counsel

Martinez filed a motion for new trial in each case alleging ineffective assistance of counsel during

the revocation/ adjudication proceeding. Specifically, Mr. Martinez argued counsel failed to seek a

continuance of the revocation hearing due to his unpreparedness, failed to subpoena witnesses that

could have clarified issues in the case, failed to object to the trial court hearing the State's amended

motion to revoke due to irregularities, failed to object to the allegations regarding petitioner's failure

to participate in a residential drug treatment program, and failed to discover evidence which would

have shown the alleged violation of petitioner committing a new offense was based on a fabrication

and a conspiracy. 1

On May 5, 2010, counsel Martinez filed notices of appeal in both cases initiating direct

appeals. On May 17, 2010, the trial court certified petitioner's right to appeal in both cases.

On May 17, 201 0, the state trial judge recused himself and, on May 24, 2010, a new judge

was assigned to the case. As of June 7, 2010, no hearing had been held on the April26, 2010

motions for new trial and no written orders had been entered. Consequently, the motions for new

trial were denied by operation oflaw. See Tex. R. App. Proc. R. 21.8 (Vemons 2010) (a motion for

new trial not ruled on by written order within 75 days after sentence is imposed in open court is

deemed denied when the 75-dayperiod expires).

1
The State had waived the "new offense" violation allegation and the trial court did not find petitioner committed this
alleged violation. The trial court did not take the new offense charges into consideration at sentencing. Vol. 4 at 105.

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Even though the motions for new trial had been denied, the direct appeals remained pending

with petitioner's appellate briefs in both cases due August 11, 2010. No briefs were filed and on

August 25, 2010, the state appellate court notified counsel Martinez that the briefs were past due

and that unless appellate briefs were filed by September 7, 2010, the appeals would be abated and

remanded to the trial court for further action. Counsel was further advised that motions to extend

the time in which to file petitioner's briefs were required.

On September 1, 2010, counsel Martinez wrote petitioner stating:

Every time I read and re-read your record, I think about other issues and so the research
just goes on and on. Believe me, I have been trying to address all the issues that I see
in a meaningful and fast paced manner ... and trying to think of everything imaginable
to attack Terry [McEachern]. . . . Do not feel that I am neglecting you in any way, and
your case is just as important as any that I currently have. I got behind in my work but
you will have the completed product in your hands by September 7, 2010 [the new
appellate deadline for filing a brief].

However, the appellate briefs were not filed by the September 7, 2010 deadline and, instead, on

September 8, 2010, counsel filed motions seeking extensions of time, until September 26, 2010, to

file the appellate briefs. Counsel Martinez cited an "unordinary [sic] amount of preparation for jury

trial" in various cases and then stated:

Even though Appellant's attorney has done some briefing of the applicable issues to be
raised on appeal there has been a suggestion by Appellant that he would rather dismiss
his appeal in favor of an 11.07 writ.

On September 10, 201 0, the state appellate court granted petitioner until September 27, 2010 to file

appellate briefs, noting that the court does not ordinarily grant subsequent extensions absent good

cause and does not generally consider the normal press of business good cause.

On October 8, 2010, petitioner's briefs had still not been filed. Petitioner's cases were

abated and remanded to the trial court to determine whether petitioner desired to prosecute the

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appeals, whether retained counsel Martinez would diligently pursue the appeals, or whether counsel

should be appointed to pursue appeals for petitioner.

On October 14, 2010, counsel Martinez wrote petitioner stating:

Enclosed please find a copy of the [appellate] Court's last opinion on your case dated
October 8, 2010. We received it on October 12,2010. We have an appointment to see
you on Thursday, October 21, 2010 at 2:00p.m.

We do not believe in filing a frivolous appeal, because all it will do is delay our chance
at getting a hearing on our Motion for New Trial, before Judge Ron Enns, who is in
control of your destiny. 2

First of all, all the issues that we read that arise on your appeal boil down to one issue.
Did the trial Court abuse its' discretion in revoking your probation? We are enclosing
you with numerous cases that conclude that a single violation of community supervision
is sufficient to support a revocation. State v. Hernandez, 05-08-00216-CR- Court of
Appeals Texas, Fifth District Dallas, January29, 2009. The record reflects that [Judge]
Board found the allegations concerning the dirty [urinalysis], failure to attend CTRC,
and failure to report. Even though an attempt was made to explain why you did not
report or attend CTRC, there was never an e,xplanation made as to why you did not take
the [urinalysis] and left the probation department, after making a payment without
corning back. It is my firm belief that the appeals court will find that one violation was
sufficient to revoke your probation.

In regards to an ineffective assistance of counsel claim, we believe that we can prove the
first prong of Strickland v. Washington, 466 U.S. 668, that counsel's assistance fell
below an objective professional standard of reasonableness, but how do we prove
prejudice of your defense. The way the record stands, [Judge] Board sentenced you to
20 years because he mentions on the record that this was a case of a "drug dealer" not
a drug user. The reason being you had no witnesses to contradict the allegations from
[Officer] Harbert [concerning the original charges] and of course [counsel] McEachern
did not even cross-examine him ....

We are going to have to get affidavits from your witnesses. We also looked at the due
process, double jeopardy and res judicata issues in regards to the State dismissing the
Motion to Proceed after the January hearing and then refiling aNew Motion on February
17, 2010 ... [however case law] does not favor us on these issues at all.

The best and your better chance of going forward is going to be what we both discussed

2
The motion for new trial had been overruled by operation oflaw on or about June 7, 2010.

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when we discussed your appeal on July 2, 2010 and that is proceeding on ( 1) the abuse
of the trial court's discretion in not granting us a hearing on our Motion for New Trial
. . . and fine tuning the attack on [counsel] McEachern for not representing [sic]
meaningful evidence, i.e., witnesses to contradict [Officer] Harbert's testimony. We are
also enclosing copies of other cases ... so that you can get a better grasp of an appeal
with little or no chance of success versus an 11.07 writ under an 11.07 writ [sic] we
cannot pursue it unless you withdraw your appeal.

We know this is a lot of information and material to absorb, but you need to focus on
what the record does not currently show is all the failures and requests you made of your
previous attorney and we need to prove up the fact that [Judge] Board was given notice
of our request for New Trial and hearing and for some reason did not do so.
Additionally, we are sending you an index of the Clerk's Record, which does not show
that [Judge] Board was actually presented with our Motion [for New Trial], when I can
in fact prove that he was! Otherwise, how did he know to recuse himself?!

On October 21, 2010, petitioner signed a typed affidavit with the caption and heading for both

appellate court cases which stated:

I, Michael Denton, have received a copy of the Court of Appeals opinion dated October
8, 201 0, from my attorney, David Martinez.

After discussing the issues addressed in said opinion, I would like to advise the Court
of Appeals that I hereby voluntarily and knowingly withdraw my Notice of Appeal. I
am satisfied that my hired attorney has rendered effective assistance in regards to
pursuing my appellate rights.

Even though I am incarcerated I am not indigent and am able to hire my own attorney.
Prior to today's date [October 21, 2010], I had thought about withdrawing my Notice
of Appeal but I had not advised my attorney that he had my consent to file a Motion to
Dismiss my appeal.

On October 27, 2010, counsel Martinez filed a motion to dismiss both appeals, attaching

petitioner's affidavit to the motions. On October 28, 2010, the Court of Appeals for the Seventh

District of Texas dissolved the abatement, reinstated the appeals in both cases, granted petitioner's

motions to dismiss, and dismissed both appeals. Denton v. State, Nos. 07-10-00189-CR & 07-10-

00190-CR. Other than the correspondence from counsel Martinez to petitioner, the record prior to

the evidentiary hearing did not reflect what issues counsel Martinez would have raised on direct

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appeal, nor had petitioner indicated what specific issues he wished to raise on direct appeal.

On December 28, 2010, counsel Martinez wrote petitioner regarding his "11.07 writ" stating

that "timing is everything" and that he would file state habeas writs for petitioner on January 6,

2011. Martinez indicated he would be seeking a hearing before the trial court and would attempt to

convince the trial judge "to do what needs to be done" on petitioner's case.

On June 22, 2011, counsel Martinez filed state applications for writs of habeas corpus

challenging each of petitioner's convictions and sentences. Those state applications alleged:

1. the trial court abused its discretion in failing to hold a hearing on the motion for
new trial; and

2. ineffective assistance of counsel during the revocation proceedings for failing
to call witnesses and refusing to allow petitioner to testify.

In the applications, Martinez indicated petitioner had appealed from his judgments of conviction. In

its answer filed five (5) days later, the State argued:

1. petitioner had defaulted his abuse of discretion claim by failing to raise it on
direct appeal; and

2. petitioner failed to support his claims of ineffective assistance of counsel with
any evidence or proof and thus the claims were defaulted, or petitioner could not
demonstrate prejudice by showing the revocation would be set aside.

The state trial court did not enter findings of fact or conclusions of law in either case. On

September 21,2011, the Texas Court of Criminal Appeals denied petitioner's state habeas

applications without written order. In re Denton, App. No. 76,206-01, -02. Such a denial is

considered an adjudication on the merits. See Ex parte Santana, 227 S.W.3d 700, 704

(Tex.Crim.App. 2007); Ex parte Grigsby, 137 S.W.3d 673 (Tex.Crim.App. 2004).

On June 3, 2012, petitioner, acting prose, filed additional state applications for writs of

habeas corpus challenging his convictions and sentences, such applications being file marked June

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8, 2012. 3 These applications alleged petitioner was denied effective assistance of appellate counsel

because Mr. Martinez erroneously advised petitioner to dismiss his direct appeals and proceed,.

instead, with petitions for writs of habeas corpus. On June 13, 2012, the State filed answers

arguing:

1. Petitioner's habeas applications should be dismissed for abuse ofthe writ;

2. Petitioner had not proven "exactly what appellate counsel's advice was and
whether such advice fell below the prevailing standard of competence" and thus
had not established counsel was deficient; and

3. Petitioner had not proven there were trial issues appellate counsel could have
raised which would have "necessarily required reversal and remand had
appellate counsel filed a brief on direct appeal rather than the writ application"
and thus had not established petitioner was prejudiced by appellate counsel's
actions.

On August 1, 2012, the Texas Court of Criminal Appeals disposed of petitioner's state habeas

applications without reaching the merits, viz., the court dismissed petitioner's applications as

subsequent applications in violation of article 11.07, § 4(a)-(c) of the Texas Code of Criminal

Procedure. In re Denton, App. No. 76,206-03, -04.

On September 1, 2012, petitioner executed two (2) federal habeas applications which were

received by this Court and file-marked onSeptember4, 2012. See Denton v. Thaler, Nos. 2:12-CV-

192 and 2:12-CV-193. Upon petitioner's motion, the Court consolidated the cases. Respondent

filed a motion to dismiss petitioner's federal habeas application as time barred and, on September 5,

2013, the United States District Judge adopted a Report and Recommendation filed August 19, 2013

3
This Court considers the date of the Declaration to be the date petitioner deposited his petition with prison authorities
for application of the state's mailbox rule as set forth in Richards v. Thaler, 2013 WL 809246 (5'h Cir. March 5, 2013) (citing
Campbell v. State, 320 S.W.3d 338,344 (Tex.Crim.App. 2010)). Cf Young v. Stephens, 2013 WL 2479710 (N.D. Tex. June 10,
2013); Neighbors v. Thaler, 2013 WL 2099255 (N.D. Tex. May 3, 2013); Clarkv. Thaler, 2013 WL 1943309 (N.D. Tex. May
10, 2013); Henson v. Thaler, 2013 WL 1286214 (N.D. Tex. March 8, 2013).

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and denied respondent's motion to dismiss. On September 10, 2013, respondent was ordered to

answer petitioner's habeas application. On October 21, 2013, respondent filed an answer and, on

November 25, 2013, petitioner filed a reply.

II.
EVIDENTIARY HEARING

An evidentiary hearing was held on May 1, 2014 at which petitioner, represented by

appointed counsel, appeared. Representatives of the Attorney General's Office appeared and

represented respondent.

A. Petitioner Denton's Testimony

At the hearing, petitioner testified that after his conviction, Mr. Martinez was contacted to

file appeals on petitioner's behalf, was paid a retainer and, ultimately, was paid a total of$20,000

for the appeals. Petitioner testified that when he first met with Mr. Martinez in April 2010, counsel

advised petitioner he would be filing motions for new trial in order to get "back in front of the

judge" and argue various complaints about the propriety of the revocation proceeding. Petitioner

testified counsel Martinez explained he would be pursuing the motions for new trial at the same

time as the appeals.

Petitioner testified he next met with counsel in July 2010 at which time counsel advised

petitioner he was waiting on a hearing to be set on the motions for new trial. 4 Petitioner testified he

spoke with Mr. Martinez by phone between July and October 2010 after receiving paperwork from

the appellate court concerning counsel's failure to meet appellate deadlines. Petitioner testified he

4
The Motion for New Trial was overruled by operation oflaw on or about June 7, 2010.

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was advised "every thing was fine" and that he (Martinez) had spoken to the court.

Petitioner testified that on October 14, 2010, counsel Martinez corresponded with petitioner,

attaching a copy of the appellate court's remand and advising petitioner he would not file frivolous

appeals because it would delay getting a hearing on the motions for new trial. Petitioner testified

Mr. Martinez further advised he was obtaining affidavits from witnesses, that the trial court abused

its discretion in not giving petitioner a hearing on his motions for new trial, and that he would

pursue state petitions for a writ ofhabeas corpus, but only if petitioner withdrew his appeals.

Petitioner testified that on October 21, 2010, he met with Mr. Martinez in person. Petitioner

testified he was advised not to worry and that everything was proceeding as planned. Petitioner

testified he was advised a habeas corpus proceeding, as opposed to a direct appeal, would be a

quicker avenue by which to present his claims challenging the revocation proceeding. Petitioner

stated counsel told him he could raise the same challenges on habeas corpus that he could on direct

appeal, and that the failure of the trial court to hold a hearing on the motion for new trial was an

additional ground that could be raised on habeas. Petitioner averred counsel advised him that a

habeas corpus proceeding could be resolved in 45 days while an appeal would typically take nine (9)

months for a resolution and that waiving the pending direct appeals would speed up the process.

Petitioner testified Mr. Martinez presented him with a pre-drafted Motion to Dismiss Appeal and a

supporting affidavit for petitioner to sign. Petitioner stated he signed the affidavit supporting the

dismissal of the appeals where counsel Martinez indicated for him to sign, and that such action was

based solely on counsel's instruction and advice and without petitioner's full understanding of why

the appeals should be dismissed. Petitioner also testified Mr. Martinez told him he had begun

drafting the state habeas petitions.

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Petitioner stated he did not receive or review a copy of the proposed state habeas petitions

prior to their eventual filing on June 22, 2011. Petitioner testified he never received copies of the

petitions from counsel, but did receive copies of the petitions from the State when it forwarded its

answer raising the issue of procedural default for failing to raise the abuse of discretion claim on

direct appeal. Petitioner testified he, as well as his mother, unsuccessfully attempted to contact Mr.

Martinez. Petitioner testified he received the notification from the Texas Court of Criminal Appeals

that his state habeas applications had been denied without written order on September 21, 2011.

B. Appellate Counsel Martinez's Testimony

Mr. David Martinez testified he was initially contacted by petitioner's mother to appeal

petitioner's probation revocations and convictions, but that he suggested they first file a motion for

new trial in each case because the filing of such a motion allows more time to investigate possible

grounds before filing a notice of appeal. Mr. Martinez acknowledged the basis for the motions for

new trial he filed was not an accurate reflection of the law as it existed at that time, but that it was

his good faith, although mistaken, belief that it was. Mr. Martinez acknowledged the timeliness of

the motions for new trial was initially at issue, requiring additional briefing on his part, and he

acknowledged that although his reason for filing the motions for new trial was to allow additional

time to investigate possible grounds before initiating an appeal, he inadvertently filed the notices of

appeal only ten (1 0) days after filing the motions for new trial rather than waiting the allotted 75

days for the motions to be overruled by operation of law, before beginning the appellate process.

Mr. Martinez testified that by May 2010, it was obvious to him that any appeal he filed on

petitioner's behalf would be frivolous. Martinez testified, however, that he did not receive the

complete transcription of the revocation hearing until July 2010. Martinez explained he did not

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meet the August 11, 2010 deadline for filing appellate briefs because he had not discovered any

grounds to challenge the revocation of petitioner's probation. Mr. Martinez acknowledged that in

his September 1, 2010 correspondence he promised petitioner a "completed product" by September

7, 2010 and acknowledged such product was an appeal brief. Mr. Martinez further acknowledged

he did not meet the extended deadline of September 2 7, 2010 for filing appellate briefs.

Mr. Martinez testified he initially believed he could raise, based upon the record, some

grounds of ineffective assistance of counsel on direct appeal, but that subsequent research revealed

he did not have valid grounds. Counsel testified he changed his mind about the successfulness of an

appeal, and feared being sanctioned if he filed a frivolous appeal, although he acknowledged that his

October 14, 2010 correspondence was the first time he referred to the appeal as being frivolous. He

acknowledged he had stated an appeal would delay getting a hearing on the motions for new trial

(which had already been denied), that he needed affidavits to support any state habeas writs, and that

the best ground for a state habeas writ would be to assert the trial court abused its discretion in

failing to hold a hearing on the motions for new trial. Mr. Martinez further acknowledged his

December 201 0 correspondence advised petitioner he wanted the state trial judge to hold a hearing

on the state writ applications, and that he indicated the state writs would be filed in January 2011,

but were not filed until June 22, 2011.

Mr. Martinez acknowledged he prepared the motion to dismiss the appeal as well as the

supporting affidavit and had petitioner sign the affidavit on October 21, 2010. Mr. Martinez

testified he did not prepare the motion to dismiss the appeal because of his failures to meet appellate

briefmg deadlines but, instead, considered dismissal of the appeals because he did not believe there

were any meritorious grounds to present. Counsel averred he did not coerce petitioner to sign the

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affidavit to dismiss the appeal, but did advise petitioner it would be better for him to pursue 11.07

state habeas writs instead of the appeals. Mr. Martinez testified he believed a state habeas writ was

a better avenue to present the claims of ineffective assistance of counsel and abuse of trial court

discretion for failing to hold a hearing on the motions for new trial. Mr. Martinez further

acknowledged he was aware that the dismissal of the appeal precluded any appeal on petitioner's

behalf.

Mr. Martinez testified he filed the state habeas writs in June 2011 and must have met with

petitioner to obtain his signature some time prior to filing. He acknowledged he did not file any

supporting affidavits with the state habeas writs and testified he last met with petitioner on

November 20, 2011 and was aware, at that time, that the state writs had been denied and the direct

appeals dismissed. Martinez acknowledged he received, over time, $20,000 plus expenses for his

work on petitioner's case.

On May 13,2014, petitioner, represented by appointed counsel, filed a Memorandum of Law

in Support of Habeas Relief. Respondent did not file any post-evidentiary hearing brief.

III.
PETITIONER'S CLAIMS

Petitioner alleges his convictions and sentences violate his rights under the United States

Constitution because:

1. Petitioner was denied effective assistance of counsel on appeal because appellate
counsel:

A. Failed to file appellate briefs or otherwise prosecute petitioner's appeals;
and

B. Improperly advised petitioner to dismiss his direct appeals and file state
applications for writs of habeas corpus in lieu of the appeals, and failed

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to adequately explain the consequences thereof.

2. Appellate counsel had a conflict of interest with petitioner.

IV.
EXHAUSTION and PROCEDURAL BAR

In his answer, respondent fully and accurately sets out the appropriate legal doctrines,

requirements, and case law regarding exhaustion and procedural bar. Answer, at 5-7. These

standards and supporting authority are applicable to this case and need not be repeated.

Respondent notes petitioner raised the ineffective assistance of appellate counsel claims

asserted in this federal habeas case in his third and fourth (prose) state habeas applications which

were dismissed for abuse of the writ. Respondent argues petitioner has bypassed the state courts,

presented an original argument to this federal court before the state court had an opportunity to rule

on the argument, and prevented the state courts from correcting any constitutional error that may

have occurred. Respondent concludes petitioner's claims are thus une:xhausted. Respondent

contends, however, that because the state court dismissed petitioner's claims for abuse of the writ,

any subsequent attempt to present the claims to the state court would be procedurally barred and,

therefore, petitioner's claims are barred under the federal procedural default doctrine.

Respondent is correct that petitioner did not raise his claims of ineffective assistance of

appellate counsel in his first two state habeas applications filed by counsel Martinez, but raised

those claims in subsequent prose applications after the state court's denial ofthe earlier state habeas

applications. In his pro se state habeas applications, however, petitioner fairly presented the

substance of his federal claims to the state's highest court. The state court refused to consider

petitioner's applications finding both of them were an abuse of the writ. Consequently, the state

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·court did not consider petitioner's claims on the merits.

Since petitioner's prose state habeas applications were dismissed by the state court as

abusive, petitioner has been effectively precluded from exhausting his ineffective assistance of

appellate counsel claims. While such a dismissal can constitute a valid state procedural bar

preventing a court from hearing a petitioner's claims,5 a court may consider a petitioner's

unexhausted claims if the petitioner demonstrates cause for his procedural default or failure to

properly present the claim, and actual prejudice as a result of a violation of federal law.

Here, petitioner would not have been aware of any ineffective assistance of appellate counsel

claims until after the denial of the first two state habeas applications filed by counsel Martinez.

Further, counsel Martinez could not be expected to raise claims of his own ineffectiveness in the

state habeas applications he filed on petitioner's behalf. Consequently, while this Court is of the

opinion the "default" (the dismissal for abuse of the writ) should not have been entered in the first

place, petitioner has shown cause for the default. Moreover, as set forth below, petitioner will

suffer prejudice if his federal claims are not heard. Consequently, while the Texas courts did not

hear petitioner's claims on the merits because of the dismissal of his prose state habeas applications

for abuse of the writ, petitioner no longer "has the right under the law of the State to raise, by any

available procedure, the question presented." Consequently, the federal petition is not subject to

dismissal for failure to exhaust nor is it procedurally barred, and the merits of petitioner's claims are

considered below.

5
Moore v. Quarterman, 534 F.3d 454,463 (5th Cir. 2008) (dismissal for abuse of the writ is a dismissal on a valid state
procedural bar that may foreclose federal habeas review of the merits of the claims).

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v.
STANDARDS OF REVIEW, PRESUMPTIONS and DEFERENCE

In his answer, respondent accurately sets out the appropriate deferential standards under the

AEDPA when reviewing a state court adjudication on the merits, and the appropriate burden of

proof on the petitioner. Answer, at 9-15. However, while the standards and deference set forth by

respondent are correct statements of the law, AEDPA deference is not applicable to the ineffective

assistance of appellate counsel claims raised by petitioner in his pro se state habeas applications

since the merits of the claims were never addressed by the state courts. Specifically, state court

adjudications are entitled to deference only when the state court has fully adjudicated the same

claim brought in federal court. See 28 U.S.C. § 2254(d); see Canales v. Stephens, 2014 WL

4290612 *5 (5th Cir. 2014). Since the Texas Court of Criminal Appeals dismissed petitioner's pro

se state habeas applications for abuse of the writ, the state court did not fully adjudicate, on the

merits, the ineffective assistance of appellate counsel claims presented in this federal habeas

proceeding. Consequently, there is no state court decision adjudicating petitioner's ineffective

assistance of appellate counsel claims which is due any deference and this Court reviews

petitioner's constitutional claims de novo. See Mays v. Stephens, 757 F.3d 211 n. 11 (5th Cir. 2014),

citing Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (holding that if the

state court does not reach the merits of a claim, the claim is reviewed de novo).

VI.
MERITS

A. Effectiveness of Counsel on Appeal

Petitioner alleges (1) counsel Martinez failed to file appellate briefs or otherwise prosecute

or complete petitioner's direct appeals; (2) counsel Martinez advised petitioner to dismiss the direct

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appeals in order to proceed with state writs of habeas corpus, (3) counsel Martinez failed to explain

the disadvantages of dismissing the direct appeals to pursue the writs of habeas corpus and thus

petitioner's consent to dismiss the appeals was not knowing or voluntary, (4) that counsel

Martinez's inaction, advice to petitioner, and his failure to explain were all deficient, and (5) that

petitioner was prejudiced by the deficient actions of counsel in that he was denied his right to a

direct appeal of his convictions. Petitioner contends that due to counsel Martinez's actions and

improper advice, petitioner was not only denied direct appeals but was left "without any means to

raise the claims" of abuse of trial court discretion or any other perceived error because "counsel's

advice and inducement resulted in any such review being foreclosed." Basically, petitioner argues

that due to counsel's incorrect and misleading advice and ineffectiveness during the direct appeals,

petitioner was prevented from prosecuting the direct appeals and/or was denied and deprived of his

constitutional right to a direct appeal.

A criminal defendant has a constitutional right to effective assistance of counsel on his first

appeal as of right. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963);

Harris v. Day, 226 F.3d 361, 366 (5 1h Cir. 2000). In the appellate context, the right to effective

assistance of counsel requires that counsel "be available to assist in preparing and submitting a brief

to the appellate court and ... play the role of active advocate." Evitts v. Lucey, 469 U.S. 387, 394

(1985). The choice of issues to raise on appeal properly lie with appellate counsel, however,

counsel must nevertheless support his client's appeal to the best of his ability. Jones v. Barnes, 103

S.Ct. 3308,3313-14 (1983).

Generally, before a petitioner can prevail on an ineffective assistance claim, he or she must

meet the rule announced in Strickland v. Washington 466 US. 668 (1984) by showing counsel's

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performance was both deficient and prejudicial. Prejudice must be shown by demonstrating a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. There is an exception to that general rule, however, and if the

complained of performance results in the actual or constructive denial of any assistance of counsel,

a petitioner may not have to demonstrate the typical Strickland-type prejudice because prejudice is

presumed. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Childress v.

Lynaugh, 842 F.2d 768, 772 (5th Cir.1988). The issue becomes what constitutes actual or

constructive denial of any assistance of counsel.

Deficiency

The pleadings initially submitted by both petitioner and respondent did not show whether

counsel Martinez's representation of petitioner on appeal was deficient. Although the record

showed appellate counsel failed to file timely appellate briefs and did not prosecute or complete

petitioner's direct appeals prior to the dismissal of the appeals, there was no evidence from either

petitioner or respondent why counsel Martinez failed to prosecute the direct appeals, whether

petitioner was advised by counsel Martinez to dismiss the appeals and proceed, instead, with state

habeas corpus petitions and, if so, whether counsel gave any reasons for that advice or explained the

disadvantages of dismissing the direct appeals to pursue writs of habeas corpus. Consequently, the

Court held an evidentiary hearing.

Based on the testimony and exhibits submitted during the hearing, as well as the record

before the Court, the undersigned finds:

1. Petitioner was aware of his right to appeal his convictions and sentences.

2. In April 2010, petitioner's mother retained counsel, Mr. David Martinez, to

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appeal petitioner's convictions and sentences (after the revocation of deferred
adjudication) and tendered an initial payment of $7,500 for such appeals.
Counsel agreed to pursue appeals on petitioner's behalf.

3. Counsel filed Motions for New Trial alleging ineffective assistance of counsel
during the revocation/adjudication proceeding.

4. Just over a week after filing the motions for new trial, counsel filed Notices of
Appeal starting the appellate time deadlines.

5. Counsel Martinez did not comply with either the original briefing deadline or
two (2) extended briefing deadlines in petitioner's direct appeals.

6. As late as July 2010, counsel Martinez contended there were issues related to the
ineffectiveness of trial counsel he believed could be raised on direct appeal.

7. On September 1, 2010, counsel Martinez wrote petitioner assuring him he was
busy researching his case and advising petitioner he would have the "completed
product" in his hands on September 7, 2010, the extended appellate deadline for
filing briefs.

8. On September 8, 2010, after missing the September 7, 2010 extended briefing
deadline, counsel Martinez requested an additional extension of time to file
petitioner's briefs, advising the appellate court petitioner may no longer wish to
pursue his direct appeals.

9. On October 8, 2010, after Martinez failed to meet the third deadline for filing
briefs, the state appellate court abated the appeals and remanded for a hearing
in the trial court.

10. On October 14, 2010, after the motions for new trial had been overruled by
operation oflaw, counsel Martinez wrote petitioner advising a frivolous appeal
would delay the chance of getting a hearing on the Motions for New Trial.
Counsel also advised petitioner he recommended state habeas applications in
lieu of the direct appeals because the writ process would be faster, and trial court
error and ineffective assistance of counsel claims could be raised in the state
writs. Counsel advised petitioner he would have to withdraw his direct appeals
in order to pursue state writs.

11. There is no evidence counsel Martinez advised petitioner of the consequences
of dismissing his appeals or of the limited grounds that could be raised in a state
habeas corpus proceeding when such grounds had not first been presented on
direct appeal.

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12. There is no evidence petitioner was fully informed of the consequences of
dismissing his appeals when he consented to the dismissal of his appeals.

13. When counsel presented petitioner with the pleading to dismiss the direct
appeals, several briefing deadlines had been missed, and the state trial court had
been instructed to, among other things, review whether counsel would diligently
pursue the appeals.

14. Counsel Martinez never filed an appellate brief or an Anders 6 brief in
petitioner's direct appeals.

15. No arguable strategic reason to dismiss petitioner's direct appeals has been
shown. Counsel Martinez's advice to petitioner to dismiss his direct appeals to
proceed with habeas corpus petitions, ostensibly because of the shorter length
of the proceedings, has not been established as valid.

16. Counsel's statement in his October 14, 2010 correspondence to petitioner that
he did "not believe in filing a frivolous appeal, because all it will do is delay our
chance at getting a hearing on our Motion for New Trial, before Judge Ron
Enns, who is in control of your destiny" is not evidence of a strategic reason to
dismiss petitioner's direct appeals. By October 14, 2010, the motions for new
trial had been overruled by operation of law and were no longer pending.

17. In its answer to the state habeas applications filed by counsel, the State argued
exclusively that petitioner ''waived and forfeited" his claim of trial court error for
failing to hold a hearing on the motions for new trial when petitioner failed to
raise that claim on direct appeal.

18. Counsel Martinez advised petitioner he would be getting affidavits from
potential witnesses to support a claim of ineffective assistance of trial counsel
during the revocation proceeding. Counsel, however, failed to submit any proof
or evidence, by affidavit or otherwise, supporting the ineffective assistance of
counsel allegations in the state habeas petitions.

19. There has been no showing by counsel Martinez during his testimony, or by the
respondent, that petitioner could not have prosecuted both his direct appeals and,
if unsuccessful, could have then filed state applications for writs of habeas
corpus.

6
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (counsel's role of an active advocate of his
client requires he support his client's appeal to the best of his ability which required counsel to conscientiously examine the case
and even if he finds the appeal to be wholly frivolous, to file a brief referring to anything in the record that might arguably
support the appeal and furnish the brief to the appellant; the appellate court must afford the appellant an opportunity to submit
his own brief and, if not wholly frivolous, argue the appeal).

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Based upon the findings set out above, the undersigned finds counsel Martinez's representation fell

below the acceptable standard and "wide range of professionally competent assistance," see

Strickland, 466 U.S. at 690, and was deficient. In making this finding, the undersigned does not

accord any AEDPA deference since there were no state court findings on the merits ofthis issue.

Prejudice

Under Strickland, a petitioner must prove he was prejudiced by counsel's deficient

performance unless the court determines counsel constructively abandoned petitioner on his appeal,

or that petitioner was otherwise actually or constructively denied any assistance of counsel on

appeal. In such an instance, prejudice is presumed. The issue is whether counsel Martinez's actions

or inactions constituted actual or constructive denial of assistance of counsel resulting in petitioner

being denied his right to appeal his convictions and sentences. If so, no further showing of

prejudice is needed.

Counsel was hired in April201 0 to appeal petitioner's convictions and sentences. Counsel

timely filed notices of appeal but missed each appellate briefing deadline despite multiple

extensions of time. Counsel Martinez testified he reviewed the record and researched issues for

appeal through September 1, 2010 (the date counsel corresponded to petitioner).7 As late as

September 7, 2010 (the date counsel signed the motion to extend the deadline for filing an appellate

brief), counsel Martinez indicated he had "done some briefing of the applicable issues to be raised

on appeal." However, no preliminary or "completed product" was ever provided to petitioner nor

7
Counsel Martinez states in his correspondence to petitioner, "Every time I read and re-read your record, I think about
other issues and so the research just goes on and on. Believe me, I have been trying to address all the issues that I see in a
meaningful and fast paced manner .... I'm sure that the timing is right and trying to think of everything imaginable to attack [trial
counsel] because that's where it all started."

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was such produced at the evidentiary hearing. Although there was no testimony of any meetings or

other communications between petitioner and counsel Martinez after September 1, 2010 and before

September 7, 2010, counsel Martinez related to the appellate court that petitioner had suggested the

appeals should be dismissed in order to pursue state writs of habeas corpus, and counsel's

prosecution of plaintiffs appeals appears to have stopped there. A week after the appeals were

abated and remanded to the state trial court on October 8, 2010 for findings concerning, inter alia,

whether counsel Martinez would diligently pursue petitioner's appeals, counsel indicated his belief

that there were no issues that could be successful on appeal and advocated to petitioner that he

withdraw his appeals and pursue state writs of habeas corpus instead, urging grounds of abuse of

trial court discretion and ineffective assistance of counsel. The next week, counsel Martinez

provided petitioner with an affidavit withdrawing the appeals and relinquishing his appellate rights.

This affidavit included the statement that petitioner was "satisfied that [counsel Martinez] [had]

rendered effective assistance in regards to pursuing [petitioner's] appellate rights" as well as a

gratuitous and conclusory statement that prior to signing the affidavit, petitioner had "thought

about" withdrawing his appeal but had not advised counsel Martinez that he had his (petitioner's)

consent to file a motion to dismiss. In his testimony before this court, petitioner denied that he

suggested dismissing his appeals, but testified counsel Martinez convinced him to dismiss his

appeals in order to pursue habeas writs instead. Petitioner testified he knew nothing about a state

writ of habeas corpus other than what counsel Martinez told him.

An attorney's failure to file and prosecute an appeal, when requested to do so by the

defendant, amounts to a frustration of the right to appeal and is presumptively prejudicial. United

States v. Tapp, 491 F.3d 263 (5th 2007). "There is no meaningful distinction between a lawyer who

fails to file any appeal at all, and one who files the appeal but then takes no action to prosecute that

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appeal, ignores court orders, and ultimately advises his client to dismiss the appeal and instead to

file" another less beneficial action. Griffin v. United States, 109 F .3d 1217, 1220 (7th Cir. 1997)

(counsel advised petitioner to dismiss his appeal to pursue a non-existent remedy). Moreover, upon

being hired to appeal a defendant's conviction and sentence, appellate counsel is required to either

put forth a good faith effort to prosecute the appellant's appeal or to file an Anders brief and seek

withdrawal. See Penson v. Ohio, 488 U.S. 75, 81-83 (1988); Anders v. California, 386 U.S. 738

(1967).

In the end, petitioner was afforded no representation at all on direct appeal. The undersigned

finds counsel Martinez constructively abandoned petitioner's direct appeals by failing to file briefs,

by failing to at least file Anders briefs and seek withdrawal, and in advising petitioner to authorize

dismissal of the direct appeals. Cf Harris v. Day, 226 F.3d 361 (5th Cir. 2000) (defendant was

constructively denied effective assistance of appellate counsel when counsel filed inadequate Anders

brief). The undersigned finds petitioner's authorization and/or acquiescence to withdraw the

appeals was based solely upon counsel Martinez's advice, did not constitute an informed decision,

and did not amount to a knowledgeable abandonment of the appeals. Petitioner was denied

effective legal representation on direct appeal and the actions of his appellate counsel constructively

denied petitioner his right to appeal. The subsequent work Martinez performed in order to file the

state habeas corpus petitions does not change this finding. The work did not benefit the direct

appeals and was of no use in prosecuting the appeals. In addition, certain claims of trial court error,

not raised on direct appeal, were not cognizable on state habeas.

As petitioner's appellate counsel provided no meaningful appellate assistance at all,

prejudice is presumed. Consequently, petitioner need not further establish, as a prerequisite to

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habeas relief, that he had some chance of success on appeal.8 Cf Carmell v. Quarterman, 292

Fed.Appx. 317, 2008 WL 4158927 (5 1h Cir. Sept, 8, 2008). The undersigned finds petitioner was

denied effective assistance of counsel on appeal.

B. Conflict of Interest

This claim raised by petitioner is not clear. It appears petitioner is claiming a conflict of

interest existed between he and appellate counsel Martinez because counsel had a strong personal

incentive to dismiss the appeal due to the numerous missed appellate briefing deadlines and the

inquiry into his appellate representation of petitioner. The undersigned has found petitioner was

denied effective representation of appellate counsel. Consequently, this claim need not be addressed

further.

C. Double Jeopardy

In several pleadings and in his reply to respondent's answer, petitioner asserts the imposition

of a fine in the order deferring adjudication was a violation of the plea agreement as a finding of

guilt was not made but, instead, adjudication was deferred and therefore no punishment, i.e., a fine,

should have been imposed.

Petitioner also asserts the imposition of the fine constituted punishment for his offense, that

the collection of the fine satisfied such punishment, and that after the "execution" of such

punishment, the state trial court had no jurisdiction to adjudicate guilt and impose another sanction,

8
The undersigned notes petitioner has not identified grounds of error that should have been asserted on appeal, nor has
he shown the likelihood of success of any such grounds. The only grounds of error this Court is aware of are the grounds raised
in petitioner's motion for new trial and first state habeas application, i.e., that the trial court abused its discretion in failing to
hold a hearing on petitioner's motion for new trial, and that ttial counsel was ineffective at the revocation hearing for failing to
call witnesses and for refusing to allow petitioner to testifY.

HAB54\R&R\DE!\'TON·l92.TAC-GRT:2 Page 24 of28
Case 2:12-cv-00192-J-BB Document 73 Filed 02/27/15 Page 25 of 28 PageiD 1673

i.e., a term of imprisonment. Petitioner contends the state trial court had already imposed and

enforced a fine and, therefore, that any subsequent punishment violated double jeopardy and due

process.

Article 42.12, section 5(a) ofthe Texas Code of Criminal Procedure allows deferred

adjudication:

[W]hen in the judge's opinion the best interest of society and the defendant will be
served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing
the evidence and finding that it substantiates the defendant's guilt, defer further
proceedings without entering an adjudication of guilt, and place the defendant on
community supervision.

Although there is no finding of guilt, there is a judicial finding that the evidence substantiates the

defendant's guilt, followed by conditions of probation that may include a fine and incarceration.

Tex. Code Crim. Proc. art. 42.12, sec. 5(a) ("The judge may ... require any reasonable conditions of

community supervision ... that a judge could impose on a defendant placed on community

supervision for a conviction that was probated and suspended, including confinement.").

The case is "temporarily stilled and the accused ... [is] permitted an opportunity to demonstrate his

capacity for prescribed good behavior during a specified period." Taylor v. State, 131 S.W.3d 497,

500 (Tex.Crim.App. 2004). If the defendant succeeds, the case, for most purposes, "disappears." If

he fails, the case continues on as if it had never been interrupted. !d.

Once the defendant successfully completes community supervision, the proceedings are

dismissed. See Tex.Code Crim Proc. art. 42.12, § 5(c). If the defendant violates the conditions of

supervision, the court may enter an adjudication of guilt on the original charges and impose a

punishment. See id. § 5(b). A dismissal and discharge upon completion of supervision is not a

"conviction" triggering disqualifications or disabilities usually visited upon convicted felons. See

HAB54\R&R\DE!-."TON-19::!.IAC-GRT:2 Page 25 of28
Case 2:12-cv-00192-J-BB Document 73 Filed 02/27/15 Page 26 of 28 PageiD 1674

id. § 5(c). Until supervision is complete, however, the deferred adjudication is treated as a pending

charge. United States v. Bishop, 264 F.3d 535, 556 (5 1h Cir. 2001); see Thomas v. State, 796 S.W.2d

196, 197-98 & n. 1 (Tex.Crim.App. 1990).

The orders deferring adjudication in petitioner's cases assessed a $2,000 fine as a condition

of community supervision, and not as a sentence. 9 The fact that the fine was not probated did not

render it a sentence rather than a condition of probation. In fact, "[n]either the assessment of

deferred-adjudication community supervision nor its accompanying fine is 'punishment' for

purposes of double jeopardy." Gardner v. State, 2002 WL 31319987 (Tex.App.-Houston [1st]

2002). As succinctly noted by the state appellate court in Amarillo:

Having one's adjudication of guilt deferred and being placed on community supervision
during that period is not tantamount to being sentenced and punished. Thus, complying
with the conditions of his continued probation or community supervision, which
includes the payment of a "fine," does not mean that he has completed or been subjected
to some aspect of punishment as contemplated by the Double 1eopardy Clause.

In re Walker, 2010 WL 1978218 *1 (Tex.App.-Amarillo, May 18, 2010) (citations omitted).

Petitioner's compliance with the conditions of his probation or community supervision to pay a fine

was not equivalent to petitioner being subjected to some aspect of punishment as contemplated by

the Double Jeopardy Clause. Once a trial court adjudicates a defendant's guilt after previously

deferring adjudication, the entire range of punishment is open to the court." Taylor v. State, 131

S.W.3d at 501. When the state trial judge adjudicated petitioner's guilt, he assessed a 20-year

sentence. The trial court did not levy another fine or include a fine in the written judgment as part

of petitioner's sentence or punishment. The assessment of the prison sentence after petitioner's

adjudication of guilt, and subsequent to petitioner's payment of his fine as a condition of community

9
The Orders also assessed monthly supervision fees and court costs as conditions of community supervision.

HAB54\R&R\DENTON-192.IAC-GRT:2 Page 26 of28
Case 2:12-cv-00192-J-BB Document 73 Filed 02/27/15 Page 27 of 28 PageiD 1675

service, did not violate the Double Jeopardy clause. Petitioner's claims oflack of jurisdiction,

denial of due process, and violations of the prohibition against double jeopardy are without merit.

VII.
RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States

District Judge that the consolidated petitions for writs of habeas corpus filed by petitioner

MICHAEL DON DENTON be GRANTED, the convictions be vacated, and petitioner be released

from custody unless respondent affords petitioner an out-of-time appeal with the assistance of

counsel within such time as the District Judge may fix.

VIII.
INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED this 27th day of February 2015.

CLINTON E. }\_VERITTE
UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the
event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is
fourteen ( 14) days from the date of filing as indicated by the "entered" date directly above the

HAB54\R&R\DENTON.J9:!.IAC·GRT:2 Page 27 of28
Case 2:12-cv-00192-J-BB Document 73 Filed 02/27/15 Page 28 of 28 PageiD 1676

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by
electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the
fourteenth (14th) day after this recommendation is filed as indicated by the "entered" date. See
28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled "Objections to the Report
and Recommendation." Objecting parties shall file the written objections with the United States
District Clerk and serve a copy of such objections on all other parties. A party's failure to timely
file written objections to the proposed findings, conclusions, and recommendation contained in this
report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the
unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the
Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services
Auto. Ass 'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en bane), superseded by statute on other
grounds, 28 U.S.C. § 636(b)(l), as recognized in ACS Recovery Servs., Inc. v. Griffin, 676 F.3d
512,521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275,276-77 (5th Cir. 1988).

HAB54\R&R\DENTON-19.:!.IAC-GRT:2 Page 28 of28
AP PE ND IX
B
 Case 2:12-cv-00192-J-BB Document 74 Filed 03/17/15 Page 1 of 1 PageiD 1677

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

MICHAEL DON DENTON, §
§
Petitioner, §
§
v. § 2:12-CV-0192
§
WILLIAM STEPHENS, Director, §
Texas Dep't of Criminal Justice, §
Correctional Institutions Division, §
§
Respondent. §

ORDER ADOPTING REPORT AND RECOMMENDATION
CONDITIONALLY GRANTING PETITIONER'S
WRIT OF HABEAS CORPUS

Petitioner has filed with this Court a petition for a federal writ of habeas corpus. On February 27,
2015, the United States Magistrate Judge issued a Report and Recommendation in this cause, recommending
therein that the petition be conditionally granted, and the convictions which are the subject of this petition be
vacated unless petitioner is afforded an out of time appeal. Respondent did not file objections to the
Magistrate Judge's Report and Recommendation.
The undersigned United States District Judge has made an independent examination of the record in
this case. The Magistrate Judge's Report and Recommendation is ADOPTED.
The petition for a writ of habeas corpus is conditionally GRANTED. The Writ of Habeas Corpus
vacating petitioner's convictions should issue unless petitioner is afforded an out of time appeal with the
assistance of counsel within sixty (60) days from the date of this order.
IT IS SO ORDERED.
ENTERED this _
'Z(
__..._J---_ day of
V'/l}
/
}
/{ljll '
t{/ 2015.
, TlI

t
 case 2:12-cv-00192-J-BB Document 75 Filed 03/17/15 Page 1 of 1 PageiD 1678

c'tfld\fil~s~~~cr COtiRT
riLEDt GF TX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS 2015 HAR 17 AH , ... 6
AMARILLO DIVISION (___ • If-
DEPUTY CLERK~
~----.
MICHAEL DON DENTON, §
§
Petitioner, §
§
v. § 2:12-CV-0192
§
WILLIAM STEPHENS, Director, §
Texas Dep't of Criminal Justice, §
Correctional Institutions Division, §
§
Respondent. §

JUDGMENT

Of equal date herewith, the undersigned United States District Judge has entered an Order

adopting the Report and Recommendation issued by the United States Magistrate Judge,

conditionally granting petitioner's application for a federal writ of habeas corpus.

The Writ of Habeas Corpus vacating petitioner's convictions should issue unless

petitioner is afforded an out oftime appeal with the assistance of counsel within sixty (60) days

from the date of this order.

JUDGMENT IS ENTERED ACCORDINGLY.

I~7 t L,}
ENTERED this day of 4)/tt tft.. 2015.
APPEND IX
c
06/01/2015 MON 8:52 FAX 806 468 5566 Randall County DA id~002/003

NO. 18607B

THE STATE OF TEXAS § IN THE 181 st JUDICIAL DISTRICT
§
versus § OF
§
MICHAEL DON DENTON § RANDALL COUNTY, TEXAS

ORDER APPOINTING ATTORNEY

On this 15th day of April, 20 I 5, the above-entitled and numbered cause
was considered for the purpose of detennining whether an attorney should be
appointed to represent the Defendant. It appears to the Court from evidence
presented that the Defendant is destitute, without funds and unable to employ an
attorney and that an attorney should be appointed to represent him in this cause.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE
COURT that JOHN BENNETT is appointed to represent the Defendant in this
trial of this cause.

SIGNED this the 15rh day of April, 2015.

o?\ Z___-
PRESIDING JUDGE

FILED

2Df5 APR 23 AM 11: 53
JO.:::ARIER. DISTRiCT CLERK
R,.ND • COUNTY. n:x AS
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http://W\:VW.CCa.courts.state.tx.us/opinions/Eventlnfo.asp?EventiD=1537729 3/25/2005
APPEND IX
I
 CO UR T OF AP PEA LS
SEC OND DIST RICT OF TEXAS
FOR T WOR TH

NO. 02-9 7-00 197 -CR

SCO TT LESLIE CAR MEL L
APPELLANT
v.
THE STA TE OF TEX AS
STA TE

FROM THE 367th DIST RICT COURT OF DEN
TON COU NTY

ORDIER

This cour t has been notif ied by the parti es
that on Nov emb er 19, 200 8,
the Unit ed Stat es Dist rict Cou rt for the
Eastern Dist rict of Texa s gran ted
appe llant relie f on his peti tion for writ of habe
as corp us conc erni ng Cou nts 7
thro ugh 10, unle ss, with in 120 days from that
date , the stat e were to affo rd
appe llant an out- of-ti me appe al. The basis of the fede ral cou rt's rulin g was
ineff ectiv e assi stan ce of coun sel on appeal
in this cour t.
Acco rdin gly, on the cou rt's own moti on, it
is orde red that the man date
issued on May 2, 200'1 is reca lled and this caus
e is rein state d on the cou rt's ·
 docke t. See Tex. R. App. P. 18.7, 19.3( b).

It is also hereb y order ed that appeal numb er 02-09 -0007 0-CR
is order ed
close d, and all paper s filed in appeal numb er 02-09 -0007
0-CR shall be
consi dered filed in appea l numb er 02-97 -0019 7-CR .

Finall y, we have consi dered the JfDefendant's Motio n To
File An Out Of
Time Notic e Of Appe al."

The motio n is GRANTED. The notice of appeal is order ed
timely filed in
the trial court effec tive March 12, 2009 .

Any suppl emen tal clerk' s record and repor ter's record are
due Mond ay.
May 18~ 2009 .

The clerk of this court is direct ed to trans mit a copy of this
order to the
attorn eys of recor d, the court repor ter, and the trial court
clerk.
DATE D April 17, 2009 .

PER CURI AM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=02-97 -00 197-CR&coa...

CASE: 02-97-00197 -CR
DATE FILED: 04/24/1997

CASE TYPE: ASSAULT OR ATTEMPTED MURDER

STYLE: SCOTT LESLIE CARMELL

V.: THE STATE OF TEXAS

ORIG PROC: NO

TRANSFER FROM:

TRANSFER IN:

TRANSFER CASE:

TRANSFER TO:

TRANSFER OUT:

PUB SERVICE: WEST PUBLISHING

APPELLATE BRIEFS

DATE

03/19/2010 ELECTRONIC BRIEF FILED - ORAL ARGUMENT REQUESTED STATE

03/18/2010 BRIEF FILED - ORAL ARGUMENT REQUESTED STATE

, 12/31/2009 BRIEF FILED - ORAL ARGUMENT REQUESTED APPELLANT
'--------·--·-·---·---

CASE EVENTS

· - . - - - - - - · ·..·--··-··---·
i DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT

INMATE TRUST FUND CHECK
FOR COPIES

03/09/2015 LETTER RECEIVED PROSE [ PDF/387 KB 1

PROSE LEITER

[PDF/56 KB 1

CASE FORWARDED TO
02/05/2015
HIGHER COURT
WRIT OF CERTIORARI MOTION OR WRIT
10/11/2011
DISPOSED DENIED
WRIT OF CERTIORARI
06/30/2011
FILED

05/17/2011 MANDATE ISSUED

CASE RETURNED FROM
05/17/2011
HIGHER COURT

05/13/2011 ORDER ENTERED

1 of7 6/112015 11:27 AM
Case Detail http://www.search. txcourts .gov/Case.aspx?cn=02-97 -00 197-CR&coa...
DATE I EVENTTYPE I DESCRIPTION I DISPOSITION I DOCUMENT
I
PETITION FOR
DISCRETIONARY
04/06/2011 REVIEW DISPOSED BY PROSE REFUSED
COURT OF CRIMINAL
APPEALS
CASE FORWARDED TO
02/28/2011
HIGHER COURT
01/05/2011 LETIER FILED STATE

PETITION FOR
12/29/2010 DISCRETIONARY PROSE
REVIEW FILED

MOTION OR WRIT
11/19/2010 MOTION DISPOSED PROSE
GRANTED
MOTION FOR
EXTENSION OF TIME TO
FILE PETITION FOR
MOTION OR WRIT
10/28/2010 DISCRETIONARY PROSE
GRANTED
REVIEW DISPOSED BY
COURT OF CRIMINAL
APPEALS
LETIER ISSUED BY THE ACTION BY COURT ON
10/25/2010
COURT OWN MOTION
10/11/2010 LETIER FILED APPELLANT

OPINION

[ HTM L/87 KB]
09/30/2010 OPINION ISSUED AFFIRMED
OPINION

[ PDF/311 KB]

04/21/2010 SUBMITIED
SET FOR SUBMISSION
03/29/2010
ON ORAL ARGUMENT
ELECTRONIC BRIEF
FILED- ORAL
03/19/2010 STATE
ARGUMENT
REQUESTED
03/18/2010 CASE READY TO BE SET
BRIEF FILED - ORAL
03/18/2010 ARGUMENT STATE
REQUESTED
MOTION FOR
MOTION OR WRIT
02/01/2010 EXTENSION OF TIME TO STATE
GRANTED
FILE BRIEF DISPOSED
MOTION FOR
02/01/2010 EXTENSION OF TIME TO STATE
FILE BRIEF FILED
BRIEF FILED - ORAL
12/31/2009 ARGUMENT APPELLANT
REQUESTED
MOTION FOR
MOTION OR WRIT
11/17/2009 EXTENSION OF TIME TO APPELLANT
GRANTED
FILE BRIEF DISPOSED
MOTION FOR
11/17/2009 EXTENSION OF TIME TO APPELLANT
FILE BRIEF FILED

2 of7 6/112015 11:27 AM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=02-97 -00197 -CR&coa...
, DATE I EVENTTYPE I DESCRIPTION I DISPOSITION I DOCUMENT I
MOTION FOR
MOTION OR WRIT
09/21/2009 EXTENSION OF TIME TO APPELLANT
GRANTED
FILE BRIEF DISPOSED

MOTION FOR
09/21/2009 EXTENSION OF TIME TO APPELLANT
FILE BRIEF FILED

MOTION FOR
MOTION OR WRIT
06/30/2009 EXTENSION OF TIME TO APPELLANT
GRANTED
FILE BRIEF DISPOSED

MOTION FOR
06/30/2009 EXTENSION OF TIME TO APPELLANT
FILE BRIEF FILED

SUPPLEMENTAL CLERKS
06/04/2009 DISTRICT CLERK
RECORD FILED

05/29/2009 LETTER FILED COURT REPORTER

ACTION BY COURT ON
04/17/2009 MANDATE RECALLED
OWN MOTION
ACTION BY COURT ON
04/17/2009 ORDER ENTERED
OWN MOTION
MOTION FOR
EXTENSION OF TIME TO MOTION OR WRIT
04/17/2009 APPELLANT
FILE NOTICE OF APPEAL GRANTED
DISPOSED
MOTION FOR
EXTENSION OF TIME TO
04/17/2009 APPELLANT
FILE NOTICE OF APPEAL
FILED

04/17/2009 CASE REINSTATED

CASE RETURNED FROM
05/20/2003
HIGHER COURT
CASE FORWARDED TO
01/23/2003
HIGHER COURT

MOTION OR WRIT
10/09/2001 WRIT OF CERTIORARI CERTIORARI
DENIED
08/01/2001 WRIT OF CERTIORARI
05/02/2001 MANDATE ISSUED

CASE RETURNED FROM
05/01/2001
HIGHER COURT

PETITION FOR
04/04/2001 DISCRETIONARY PROSE REFUSED
REVIEW FILED IN CCA
CASE FORWARDED TO
01/26/2001
HIGHER COURT

PETITION FOR
12/27/2000 DISCRETIONARY APPELLANT
REVIEW FILED IN CCA

MO FOR EXT TO FILE
PETITION FOR
10/23/2000 PROSE
DISCRETIONARY
REVIEW

MOTION FOR MOTION OR WRIT
09/21/2000 APPELLANT
REHEARING DISPOSED DENIED

3 of7 6/1/2015 11:27 AM
Case Detail http://www.search.txcourts.gov/Case. aspx?cn=02-97 -00 197-CR&coa...
DATE I EVENTTYPE I DESCRIPTION I DISPOSITION I DOCUMENT
MOTION OR WRIT
09/21/2000 MOTION DISPOSED APPELLANT
DENIED
09/15/2000 LETTER COURT OF APPEALS
OTHER DOCUMENT
09/13/2000 PROSE
RECEIVED
OTHER DOCUMENT
09/11/2000 PROSE
RECEIVED
09/05/2000 MOTION FILED APPELLANT
MOTION FOR
09/05/2000 APPELLANT
REHEARING FILED
MOTION OR WRIT
08/23/2000 MOTION DISPOSED PROSE
DENIED
08!22!2000 MOTION FILED PROSE
MOTION OR WRIT
08/21/2000 MOTION DISPOSED APPELLANT
DENIED
08/18/2000 MOTION FILED APPELLANT
08/17/2000 OPINION ISSUED AFFIRMED
SUP. CLERK'S RECORD
07/31/2000
FILED
OTHER DOCUMENT
07/26/2000 APPELLANT
RECEIVED
SUPPLEMENTAL BRIEF
07/21/2000 STATE
FILED
07/18/2000 SUBMITTED
MOTION OR WRIT
07/14/2000 MOTION DISPOSED STATE
GRANTED
07/12/2000 MOTION FILED STATE
CORRESPONDENCE
07/05/2000 FROM INTERESTED STATE
ENTITY
06/27/2000 SUBMISSION
06/27/2000 LETTER COURT OF APPEALS
SUP. CLERK'S RECORD
06/26/2000
FILED
06/14/2000 LETTER COURT OF APPEALS
MOTION OR WRIT
06/14/2000 MOTION DISPOSED PROSE
GRANTED
06/07/2000 MOTION FILED PROSE
06/05/2000 CASE REINSTATED
CASE RETURNED FROM
06/05/2000
HIGHER COURT
05/04/2000 ORDER ENTERED COURT OF APPEALS

05/01/2000 REVERSED AND
OPINION ISSUED
REMANDED
CASE FORWARDED TO
10/05/1999
HIGHER COURT
OTHER DOCUMENT
06/14/1999
RECEIVED

4 of7 6/112015 11:27 AM
Case Detail http://www.search. txcourts.gov/Case.aspx?cn=02-97 -00197 -CR&coa...
DATE I EVENT TYPE I DESCRIPTION I DISPOSITION I DOCUMENT
MOTION OR WRIT
06/14/1999 WRIT OF CERTIORARI
GRANTED

12/14/1998 WRIT OF CERTIORARI

10/26/1998 MANDATE ISSUED

PETITION FOR REVIEW
09/16/1998 FILED IN SUPREME APPELLANT REFUSED
COURT

PETITION FOR
05/26/1998 DISCRETIONARY APPELLANT
REVIEW FILED IN CCA

MO FOR EXT TO FILE
PETITION FOR MOTION OR WRIT
04/23/1998 PROSE
DISCRETIONARY GRANTED
REVIEW

MO FOR EXT TO FILE
PETITION FOR
04/21/1998 PROSE
DISCRETIONARY
REVIEW

MOTION FOR MOTION OR WRIT
03/26/1998 APPELLANT
REHEARING DISPOSED DENIED
MOTION FOR
03/02/1998 APPELLANT
REHEARING FILED

MOTION OR WRIT
02/12/1998 MOTION DISPOSED PROSE
DENIED

MOTION OR WRIT
02/12/1998 MOTION DISPOSED STATE
GRANTED
02/12/1998 OPINION ISSUED AFFIRMED
SUPPLEMENTAL BRIEF
02/12/1998 STATE
FILED

02/10/1998 MOTION FILED STATE
02/06/1998 SUBMITIED

02/06/1998 SUBMISSION

MOTION OR WRIT
02/04/1998 MOTION DISPOSED APPELLANT
GRANTED
SUPPLEMENTAL BRIEF
02/04/1998 APPELLANT
FILED

02/03/1998 MOTION FILED APPELLANT
01/22/1998 MOTION FILED PROSE
01/16/1998 SUBMISSION

01/16/1998 LETIER COURT OF APPEALS
11/06/1997 BRIEF FILED STATE
11/06/1997 CASE READY TO BE SET

MOTION FOR
MOTION OR WRIT
11/06/1997 EXTENSION TO FILE STATE
GRANTED
BRIEF DISPOSED

MOTION FOR
11/06/1997 EXTENSION TO FILE STATE
BRIEF FILED

MOTION FOR
MOTION OR WRIT
10/24/1997 EXTENSION TO FILE STATE
GRANTED
BRIEF DISPOSED

5 of7 611/2015 11:27 AM
Case Detail http://www.search. txcourts.gov/Case.aspx?cn=02-9 7 -00197 -CR&coa...
[)ATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT I
MOTION FOR
10/21/1997 EXTENSION TO FILE STATE
BRIEF FILED

09/03/1997 BRIEF FILED APPELLANT
MOTION FOR
MOTION OR WRIT
09/03/1997 EXTENSION TO FILE APPELLANT
GRANTED
BRIEF DISPOSED
MOTION FOR
08/29/1997 EXTENSION TO FILE APPELLANT
BRIEF FILED

MOTION FOR
MOTION OR WRIT
08/13/1997 EXTENSION TO FILE APPELLANT
GRANTED
BRIEF DISPOSED
NO DESCRIPTION
08/12/1997
AVAILABLE.
MOTION FOR
07/30/1997 EXTENSION TO FILE APPELLANT
BRIEF FILED
NO DESCRIPTION
05/08/1997
AVAILABLE.

NO DESCRIPTION
04/24/1997
AVAILABLE.
CREATED FOR DATA
CONVERSION -- AN
EVENT INSERTED TO
04/24/1997
CORRESPOND TO THE
BEGINNING OF A
PROCESS

CALENDARS

r------------·-·------····--- ··-·-----;
REASON SET I
, 05/17/2011
'
CASE STORED CASE STORED

PARTIES

PARTY .. ]!ARTYTYPE I REPRESENTATIVE
·-------,
I
: THE STATE OF TEXAS CRIMINAL- STATE OF TEXAS CHARLES E. ORBISON
' SCOTT LESUE CARMELL
' CARMELL, SCOTT LESUE CRIMINAL - APPELLANT
JOHN P. KNOUSE
UNKNOWN USER CRIMINAL- STATE OF TEXAS KATHLEEN WALSH
UNKNOWN USER CRIMINAL- STATE OF TEXAS MATTHEW W. PAUL

TRIAL COURT INFORMATION

COURT: 367TH DISTRICT COURT

6 of7 6/112015 11:27 AM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=02-97 -00197 -CR&coa...
COUNTY: DENTON

COURT JUDGE: HONORABLE E. LEE GABRIEL

COURT CASE: F-96-1227-E

COURT REPORTER:

PUNISHMENT: 20 YRS.IDTDCJ-13 COUNTS &

7 of7
6/112015 11:27 AM