Hart, Eugene

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Eugene Hart #541604
MI. Unit 2664 FM 2054
Tennessee Colony TX.75886

COURT OF CRIMINAL APPEALS

P.O. BOX 12308 Capitol Station

Austin Texas 78711

Re: Parte Eugene Hart Trial Court cause NO.509703-A Post Conviction writ Application
Article ll.07 TCCP Proceedings In The 209th District Court of Harris County Texas

and a Application of a writ of Mandamus that was filediJlthe CourtOrder For Filing Affldavit.
\:l Respondent’s Proposed Findings of Fact and Order ,

:] Other ` 4

Sin rel}',/,

a Mc e} , Deputy
Criminal Post` Trial

Enclosure(s) - 'U

1201 FRANKLlN ~ P.O. BOX 4651 o HOUSTON, TEXAS 77210-4651 o (888) 545-5577

PAGE l oF 1 REv: 01-02-04

F'ebrggry 1.4, 2013 `, 14 ;_
/'f` n `
i:UGENE HART` ' '
#541604 - MICHAEL UNIT

2664 FM 2054

TENNEssEE CoLoNY, TX 75886

RE: CAUSE_#509703-A (cts. l & 2)

209th District Court » 14 1

Dear Applicant:

Your post conviction application for Writ of Habeas Corpus was received and filed on 10-8-1'2.
Article 11.07 of the Texas code of Criminal Procedure affords the State 15 days in Which to
answer the application after having been served with said application After the 15 days allowed
the State to answer the application, the Court has 20 days in which it may order the designation
of issues to be resolved, if any. lf the Court has not entered an order designating issues to be
resolved within 35 days after,the State having been served with the application, the application
will be forwarded to the Court of Crirninal Appeals for their consideration pursuant to A.rticle \
11.07, Sec.` 3(c) of the Texas Code of Criminal Procedure.

The records of the office reflect the following:

CAUSE N(). PETITION FOR WRIT OF HABEAS CORPUS DISPOSITION

All future correspondence should indicate the above listed cause number.

Sincerely,

. c
Crirninal Post 1,`/,1al

CC: District Attorney
Judge, Presiding Court

1201 FRANKuN » P.O. Box 4651 - HousToN, TEXAS 77210-4651 ¢ (888) 545-5577

PAGE l oF l 4 - REV. 01 -02-04

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Cause No. 509703-A

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EX PA"K~IE\_ 0/3 § ' IN THE 209TH DISTRICT COURT
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EUGENE HART, \ § . HARRIS COUNTY, TEXAS
Applicant

STATE'S ORIGINAL ANSWER

The State of Texas, through its Assistant District Attorney for Harris County, files this, its
original answer in the above-captioned cause, having been served with an application for writ of
habeas corpus pursuant to TEX.`CRIM. PROC. CODE art. ll.07 § 3 (West 2011), and would show the
following:

I.

The applicant is confined pursuant to the judgment and sentence of the 209th District
Court of Harris County, Texas, in cause number 509703 (the primary case), where the applicant
was convicted pursuant to a guilty plea for the felony offense of murder-two counts. The State

abandoned two (2) paragraphs in the indictment, and agreed to not having a finding of deadly

weapon entered. The court assessed punishment at life confinement in the Texas Department of
Criminal Justicev - Institutional Division (TDCJ_ID), formerly the Texas Department of

Corrections (TDC).

II.
The State denies the factual allegations made in the instant application, except those

supported by official court records, and offers the following additional reply:

air
m they

-No_ 509703-A

EX PARTE: y _` ' . ' '- _ ' § -_1N THE 209TH DIS_TR'ICT CoURT,'.
_ `§ oF`

EUGENE_HART,' _ q - _ _

Applicam ' _§ _ HARRIS _C-ouNTY, T- E X A s_.

' -` `.~THE'sTATE's-PROPOSED oRi)ER.DEsIGNATING" ,_

ISSUE AND‘ FOR'-FILING -AFFIDAVIT

Having considered the application for writ of habeas corpus in the above'- styled cause and l " `

ithe State’ `s answer, the Court finds that the lssue of whether the applicant was denied the effective

~ assistance of counsel needs to be resolved in the instant proceeding

Therefore, pursuant to Article 11. 07 §3(d), this Court will resolve the above-cited lssue 1

l _ _ and then enter findings of fact.

To assist the.Court in. resolving this-factual issue, - Mr. W.K. Goode, is ORDERED to file an -. _"

' affidavit under cause number 509703-A, summarizing the actions taken to represent the applicant -

in cause number 509703, responding to the allegations of involuntary plea and ineffective j

assistance of counsel contained in the instant application for writ of habeas corpus, and specifically "

l.

l ' '~ responding _to the following:"

`Please state whether counsel fully explained the plea adrnonishments to the ';
` applicant If so, please discuss whether the applicant indicated to counsel that he

had a clear understanding of the admonishments, the terms and consequences of the
options presented to him, and whether he elected to proceed knowingly and _'
voluntarily at each stage of the primary case. If not, please explain. (If counsel does '
not recall the specifics of the primary case, please state what counsel’ s usual

l practice is, and whether counsel has reason to believe that he deviated from such

practice in the instant case.); and

_' Please discuss whether counsel threatened the applicant with a death sentence if the .»;. 1
applicant did not plead guilty, or coerced the applicant to plead guilty in anyway. (If '

counsel does not recall the specifics of the primary case, please state what counsel’ s
usual practice is, and whether counsel has reason to believe that he deviated from

» such practice in the instant case. ).

'\~

REPLY To THE APPLlCANT's FleT AND SEcoND GROUNDS FoR RELIEF

The applicant appears to claim that this is a subsequent writ but should still be considered,
and that the trial court and the lawyers conspired together to convict him. See Writ Applicatl`on at 6,
7.

This is the applicant’s first application for writ of habeas corpus, and not a subsequent writ
as the applicant mistakenly believes. See Writ Application. Regarding the claim of conspiracy by
the trial court with the prosecutor and the applicant’s counsel, the applicant does not allege
sufficient facts, which, if true, would grand him relief. Ex parte Maldonado, 688 S.W.Zd 114, 116
(Tex. Crim. App. 1985). The applicant refers to a memorandum of law in support of his grounds
for relief. See Writ Application at 6-8. No memorandum, however, is attached to the application
The applicant offers no facts to support his assertions, making only conclusory allegations
insufficient for habeas relief. E)¢ parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967); and Ex
parte Empey, 757 S.W.Zd 771, 775 (Tex. Crim. App. 1988).

In habeas proceedings, the applicant has the burden of proof and the standard is by a

preponderance of the evidence. Ex parte Adams, 768 S.W.Zd 281 (Tex. Crim. App. 1988). The

applicant fails to carry this burden and the first and second grounds for relief must be denied.

REPLY To THE APPLchNT's Tle) GRouND FoR RELIEF
The applicant alleges ineffective assistance of counsel. See Writ Application at 8.
Speciflcally, the applicant appears to claim that counsel threatened him with a death sentence if he

did not plead guilty, and thus rendered his plea involuntary. See Id.

The United States Supreme Court held in Strickland v. Washington, 466 U.S. 668, 686
(1984), that the benchmark for judging any claim of ineffective assistance of counsel is whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied upon as having produced a just result. The court in Slrickland set forth a two (2)-
part standard, which has been adopted by Texas. See Hernandez. v. State, 726 S.W.2d 53, 57 (Tex.
Crim. App. 1986). First, the defendant must prove by a preponderance of the evidence that
counsel’s representation fell below an objective standard of reasonableness Mitchell v. State, 68
S.W. 3d 640, 642 (Tex. Crim. App. 2002); Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App.
1992) (citing Stricklana' v. Washington, 466 U.S. at 688)'. Reasonably effective assistance of
counsel does not require error-free counsel, or counsel whose competency is judged by hindsight
Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981). Second, there must be a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different Id. A “reasonable probability” is “a probability sufficient to undermine

confidence in the outcome.” Id.

Article I, Section 10 of the Texas Constitution also requires that a criminal defendant receive
effective assistance of counsel. However, the 'l`exas constitutional provision does not create a
standard that is more protective of a defendant’s rights than that established in Strickland. Black v.
State, 816 S.W.2d 350, 357 (Tex. Crim. App. 1991) (citing Hernandez, 726 S.W.2d, at 53).
Therefore, an analysis of the effectiveness of the applicant’s trial counsel in the primary case
pursuant to the Strickland standard satisfies both the federal and state constitutional requirements

To prevail on a claim of ineffective assistance where the applicant pled guilty, the applicant must

on going to trial. Ex parte Akhtab, 901 S.W.2d 488, 490 (Tex. Crim. App. 1995) (citing Hill v.
Lockhart, 474 U. S. 52, 59 (1985)).

When evaluating an ineffective assistance claim, the reviewing court looks at the totality
of the representation and the particular circumstances of the case. See Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim.'App. 1999). In reviewing counsel’s performance, the court
indulges a strong presumption that he acted within the wide range of reasonable professional
assistance Strickland, U.S. 466 at 689. Moreover, ineffective assistance of counsel cannot be
established by separating out one portion of counsel’s performance for examination The
sufficiency of an attorney’s assistance must be gauged by the totality of the representation of the
accused. Bolden v. State, 634 S.W.2d 710, 714 (Tex. Crim. App. 1982); sz`ng v. State, 549
S.W.2d 392, 395 (Tex. Crim. App. 1977). i

In addition, the court will not use hindsight to second-guess a tactical decision made by trial
counsel, nor will the fact that another attorney might have pursued a different course support a

finding of ineffectiveness Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990); Blott v.

State, 588 S.W.2d 588, 592 (Tex. _Crim. App. 1979). Unlike a later reviewing court, trial counsel
observed the relevant proceedings, knew of materials outside the record, and interacted with the
client, with opposing counsel, and with the judge. Harrington v. Rz'chter, 131 S.Ct. 770, 788
(2011) (citing Stricklana', 466 U.S. at 691). The question is whether an attorney’s representation
amounted to incompetence under “prevailing professional norms,” not whether it deviated from

best practices or most common custom. Id.(citing Strickland, 466 U.S. at 690).

Involuntgy plea

The applicant seems to claim that his guilty plea was involuntary. See Writ Application at
8. A plea of guilty should not be accepted unless it appears that the plea is voluntary. TEX.
CODE CRIM. PRoC. ANN. art. 26.13(b) (West 2011). A presumption of voluntariness is created in
a plea if the defendant was admonished in accordance with the law, and then the burden of
proving that a plea is involuntary shifts to the defendant. Mitschke v. State, 129 S.W.3d 130, 136
(Tex. Crim. App. 2004). The applicant pled guilty with an agreed punishment recommendation
on February 22, 1990. See State 's Writ Exhibits Al and AZ, “Judgment on Plea of Guilty Before
Court, Waz`ver Of Jury Trial for count 1, cause number 509703 and “Judgment on Plea of
Guilly Before Court, Waiver of Jury Trial for count 2, cause number 509703 and State ’s Writ
Exhibit B “Waz'ver of Constitutional Rights, Agreement to Stipulate, and .]udicial Confession. ”
The trial court properly admonished the applicant in accordance with Article 26.13 of the Code
of Criminal Procedure as reflected in the trial court’s written admonishments, which the

applicant signed. State ’s Writ Exhibz`t C, "Admonitions”. These plea documents reflect that the

applicant was properly admonished as to the range of punishment and that the applicant’s trial
counsel fully discussed the consequences of his plea with him, See State ’s Writ Exhibits AI and
A2, State’s Writ Exhibz`t B, and State’s Writ Exhz`bit C. Because the trial court properly
admonished the applicant, there is a presumption that the applicant’s guilty plea was voluntarily
entered. Mitschke, 129 S.W. at 136.

In addition, the docket sheets in the primary case also indicate that the applicant was

properly admonished by the court concerning the consequences of his plea. See State ’s Writ Exhibit

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there is a prima facie showing of a knowing and voluntary plea. Ex parte McAtee, 599 S.W.2d 335,
336 (Tex. Crim. App. 1980). The applicant has not overcome the presumption of regularity created
by these trial court documents Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984).

The applicant does not overcome the presumption of voluntariness created by the trial
court’s written admonishments, and fails to establish facts necessary to prove that he pled guilty
based upon coercion from any source. Therefore, the applicant does not show that his guilty plea
was involuntary and the instant ground for relief is without merit and should be denied

Nonetheless, and without waiving the foregoing, the State believes that further factual
investigation is necessary to determine the merits, if any, of the applicant’s claim of involuntary
plea.

III.

The State respectfully requests that this Court designate the issue of whether the applicant

was denied the effective assistance of counsel as the issue to be resolved in the instant writ.

Additionally, the State respectfully requests that this Court order the applicant’s trial counsel, Mr.

W.K. Goode, to file an affidavit summarizing the actions taken to represent the applicant and

responding to the allegations of ineffective assistance

Mr. W. K Goode is hereby OR_DERED to _file said affidavit with the Post Conviction ._
Division of the District Clerk’s lOffice 1201 Franl