WR-80,453-04
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/22/2015 11:10:12 AM
Accepted 10/22/2015 11:40:48 AM
No. WR 80,453-04 ABEL ACOSTA
CLERK
RECEIVED
EX PARTE § IN THE COURT OF CRIMINAL APPEALS
COURT OF 10/22/2015
ABEL ACOSTA, CLERK
§ CRIMINAL APPEALS
WILLIAM G. DALE § OF TEXAS
MOTION TO REMAND FOR EVIDENTIARY HEARING
AND FINDINGS AND CONCLUSIONS
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, WILLIAM G. DALE, Petitioner, and makes the
following request for relief:
1.
This is a subsequent postconviction habeas corpus petition. In
cause no. 9-202-CR, pending in the 77th District Court of Freestone
County, Texas, the Hon. Patrick Simmons, Judge Presiding, Petitioner
was charged by indictment with the offense of indecency with a child,
see TEX. PENAL CODE § 21.11 (a) (1), (d). Specifically, the indictment
alleged that Petitioner, with the intent to arouse or gratify his sexual
desire, intentionally or knowingly engaged in sexual conduct with
Mallory Beatty, by touching her breast with his hand, and Beatty was a
child younger than 17 years of age and not his spouse. Petitioner
pleaded not guilty to this charge and exercised his right to jury trial.
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Motion to Remand for Evidentiary Hearing
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Trial was conducted from September 6-9, 2011. The jury convicted
Petitioner of the offense. Punishment was heard before the jury, which
assessed punishment at six years confinement.
In cause no. 9-194-CR, pending in that same court, Petitioner
was charged by indictment with the offense of aggravated sexual
assault. See TEX. PENAL CODE § 22.021 (a) (1) (B) (i), (b) (1), (e).
Specifically, the indictment alleged that Petitioner intentionally and
knowingly caused the penetration of the sexual organ of Mallory
Beatty, a child who was then and there younger than 14 years of age
and not the Petitioner’s spouse, by Petitioner’s finger. Petitioner pled
not guilty to this charge and exercised his right to jury trial. Trial was
to the same jury as in cause no. 9-202-CR. The jury convicted
Petitioner of this offense. Punishment was to the same jury. Following
the punishment hearing, the jury assessed punishment at 15 years
confinement.
2.
Petitioner filed a subsequent writ application in the trial court,
alleging that he had newly discovered evidence of factual innocence.
Specifically, Petitioner presented the affidavit of Heba Nazaal, a
witness who swore that the complainant had told her a vastly different
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Motion to Remand for Evidentiary Hearing
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version of the offense—with another assailant instead of Petitioner. In
his application and brief in support of the application, Petitioner
provided affidavits showing that the factual basis for this ground for
relief was not available to him at the time he filed the initial writ
application.
3.
On October 21, 2015, the undersigned counsel received notice
from this Court that the writ had been received and submitted. This
was the first notice counsel had received of the disposition of the writ
application; he had not received any notices from the trial court
(beyond the return of the certified mail receipt card). If there were any
findings of fact and conclusions of law submitted with the writ file, they
have not been furnished to counsel as of this writing. Certainly no
evidentiary hearing was conducted.
Regrettably, this is not the first time the trial court has so
proceeded in this case. In Petitioner’s initial writ application, the trial
court sent the writ to this Court without conducting an evidentiary
hearing or making findings of fact and conclusions of law. This Court
remanded the cause for an evidentiary hearing and appropriate
findings.
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Motion to Remand for Evidentiary Hearing
Page 3 of 7
4.
There is no legitimate issue whether Petitioner satisfied the
predicate for a subsequent writ. For purposes Article 11.07, § 4 (a) (1),
a factual basis of a claim is unavailable on or before a date described in
subsection (a) (1) if the factual basis was not ascertainable through the
exercise of reasonable diligence on or before that date. See also, Ex
parte Brooks, 219 S.W.3d 396, 401 (Tex. Crim. App. 2007).
This writ qualifies under the first subsection of Article 11.07, § 4
(a). The factual basis for the claim of factual innocence was not
available to Petitioner when he filed his initial writ application and it
could not have been discovered through the exercise of due diligence.
The affidavits of Willie Dale and Kiley Ervine, which were attached to
the writ application, established to a preponderance of the evidence
that the factual basis for the claim of factual innocence was not
available at the time of the first writ application, nor could it have been
discovered by due diligence. This is not a basis for the trial court to
have rejected this writ application.
5.
The trial court also erred in failing to conduct an evidentiary
hearing. "The burden of proof in a writ of habeas corpus is on the
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Motion to Remand for Evidentiary Hearing
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Petitioner to prove by a preponderance of the evidence his factual
allegations." Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App.
1995). Petitioner’s application raised controverted and previously
unresolved issues of fact material to Petitioner’s conviction. The trial
court could not determine whether or not the new evidence and
witness were credible from a paper hearing. The trial court therefore
prevented Petitioner from satisfying his burden of proof.
6.
The issue raised in this subsequent writ application, factual
innocence, is cognizable on habeas review. In Elizondo, the court of
criminal appeals held that a bare innocence claim is cognizable in an
application for writ of habeas corpus. Ex parte Elizondo, 947 S.W.2d
202, 205 (Tex. Crim. App. 1996). Incarceration of an innocent person
offends federal due process, therefore a bare innocence claim raises a
constitutional challenge to the conviction.
Petitioner’s writ application and brief showed that the
complainant in this case had fabricated her account of the alleged
assault. At trial, she claimed that Petitioner had sexually assaulted her
virtually in the presence of his family while she, Petitioner and his
family were watching a video in his family’s lake house.
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Motion to Remand for Evidentiary Hearing
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By contrast, the complainant told a disinterested witness that the
alleged assault occurred on a totally different occasion, under different
facts and this time Petitioner’s father, not Petitioner was the assailant.
To be granted relief on a bare innocence claim, the applicant must
show that the new evidence unquestionably establishes his innocence.
Elizondo, 947 S.W.2d at 208-09. This means that the applicant must
prove by clear and convincing evidence that no reasonable juror would
have convicted the applicant in light of the new evidence. Id. at 209. To
determine whether a habeas applicant has reached this level of proof,
the convicting court weighs the evidence of the applicant's guilt against
the new evidence of innocence. Id. at 207.
Petitioner presented at least a prima facie case that no reasonable
juror would have convicted him in light of the new evidence. Because
his application has merit and further meets the threshold test for
consideration of a subsequent writ, the trial court could not have
properly rejected the writ without conducting a hearing and making
findings of fact and conclusions of law. Petitioner therefore prays that
the Court remand the cause to the trial court for an evidentiary hearing
and appropriate findings.
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Motion to Remand for Evidentiary Hearing
Page 6 of 7
Respectfully submitted,
/s/ John D. Nation
John D. Nation
State Bar No. 14819700
4925 Greenville Ave., Suite 200
Dallas, Texas 75206
214-800-5160
214-800-5161 (facsimile)
nationlawfirm@gmail.com
Faith S. Johnson
State Bar No. 18367550
5201 N. O’Connor Blvd., Suite 500
Irving, Texas 75039
972-401-3100
972-401-3105 (fax)
fjassociates@att.net
Counsel for Petitioner
CERTIFICATE OF SERVICE
This is to certify that I have served a true copy of this motion on
Hon. Chris Martin, District Attorney, Freestone County, 118 E.
Commerce, Room 305, Fairfield, Texas 75840, via facsimile 903-389-
5289, on this 22nd day of October 2015.
/s/ John D. Nation
John D. Nation
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Motion to Remand for Evidentiary Hearing
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