WR-63,871-03
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/28/2015 1:29:58 PM
Accepted 8/28/2015 3:52:42 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
FOR THE STATE OF TEXAS
RECEIVED
AUSTIN, TEXAS COURT OF CRIMINAL APPEALS
8/28/2015
ABEL ACOSTA, CLERK
EXPARTE §
§
§ NO. WR-63,871-03
§
TIMOTHY RANDAL THOMPSON §
WRIT NO. C-2-010289-0764908-B
TRIAL COURT NO. 0764908D
EXPARTE § IN THE CRIMINAL DISTRICT
§
§ COURT NUMBER TWO
§
TIMOTHY RANDAL THOMPSON § TARRANT COUNTY, TEXAS
OBJECTIONS TO TRIAL COURT'S ORDER ADOPTING
STATE'S AMENDED PROPOSED MEMORANDUM,
FINDINGS OF FACT AND CONCLUSIONS OF LAW
NOW COMES TIMOTHY RANDAL THOMPSON, Applicant, and files these
Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum,
Findings of Fact and Conclusions of Law and would show these Courts the following:
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Pact and Conclusions of Law - Page I
I.
Trial Court's Order
On August 13, 2015, the trial court signed an Order Adopting State's Amended
Proposed Memorandum, Findings of Fact and Conclusions of Law. The undersigned
counsel did not receive notice of the signing of this order from the trial court.
Undersigned counsel learned of the signing of this order on August 20, 2015, upon
receipt of an email from the Court of Criminal Appeals advising undersigned counsel
of the receipt of Applicant's writ application.
II.
Issues in Writ Application
In his writ application, Thompson alleged that his trial attorneys provided
ineffective assistance of counsel at Thompson's murder trial in that the trial attorneys
failed to:
1. Request a charge on "sudden passion" at the punishment phase of Thompson's
trial·,
2. Adequately investigate the alleged cnme scene and develop evidence that
Thompson fired a number of warnmg shots, which would have corroborated
Thompson's testimony and contradicted the testimony of the state's cnme scene
investigator;
3. Properly object to the exclusion of testimony concerning the deceased's violent
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Fact and Conclusions of Law - Page 2
nature or make an offer of proof concerning the excluded testimony.
In addition, Thompson alleged that his appellate attorney provided ineffective
assistance of counsel on appeal in that counsel failed to properly argue the issue of the
trial court's exclusion of testimony concerning the deceased's violent nature.
III.
Lach es
The state's proposed findings assert, in part, that Applicant's claims should be
barred by !aches because Applicant has not acted with reasonable diligence in pursuing
his claims and because Applicant's trial attorneys now have diminished memories
regarding Thompson's case. (See, e.g. proposed findings, p. 14, paragraphs 67 and 68
and p. 18, paragraph 26). Thompson, however, did act with reasonable diligence in
pursuing his rights. He filed two pro se writ applications following the affirmance of
his conviction on direct appeal. (See, Court of Criminal Appeals cause numbers WR-
63,871-01 and WR-63,871-02). Those applications were dismissed and the merits of
those applications were never reached by this Court. Applicant then raised funds to hire
counsel to assist him. That took some time. The point is that Applicant has diligently
pursued relief from his unfair conviction. The door to this Court should not be shut in
his face. Moreover, there is no prejudice to the State from the supposedly faulty
memories of trial counsel. The record is perfectly clear that trial counsel were
ineffective in representing Thompson. There is nothing that trial counsel could say,
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Fact and Conclusions of Law - Page 3
even with perfect memories, to change that.
IV.
Sudden Passion
The trial record contains abundant evidence of sudden passion. Yet, no
instruction on sudden passion was requested by Thompson's attorneys. The fact that
attorney Johns did not recall at the writ hearing why he did not request a charge on
sudden passion is of no moment. 1 Attorney Haley recalled that he (rightfully) urged
attorney Johns to request such a charge. (Evid. Hrg., pp. 14, 17, 23, 42, 43). More
importantly, because the trial record provides the basis for such an instruction, such an
instruction should have been requested. There is no reasonable trial strategy basis that
Mr. Johns could have articulated that would justify the failure to request such an
instruction. There was no downside to asking for an instruction on sudden passion. A
sudden passion instruction would not have been inconsistent with the self-defense
argument made at the guilt-innocence phase of the trial. Self-defense and sudden
passion are not mutually exclusive concepts. See, e.g., Wooten v. State, 378 S.W.3d
652, 657 (Tex. App. - Houston [14th Dist.] 2012, pet. granted) (citing Chavez v. State,
1Mr. Johns testified at the evidentiary hearing that it could have been that he did not ask for
an instruction on sudden passion because Thompson testified he was defending himself. (Evid. Hrg.,
pp. 14-15). Later, Johns testified that he did not ask for such an instruction because he thought he
"had a shot just going straight at self-defense." (Evid. Hrg., pp. 21-22). This evidences a
fundamental misunderstanding of when a jury would be instructed on self-defense and when a jury
would be instructed on sudden passion.
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Fact and Conclusions of Law - Page 4
6 S.W.3d 56, 65 (Tex. App. - San Antonio 1999, pet. refd) reversed on other grounds,
400 S.W.3d 601 (Tex. Crim. App. 2013) (self-defense and sudden passion are
inextricably intertwined, and, except in rare instances, facts that give rise to self-defense
also give rise to sudden passion); also see Brunson v. State, 764 S.W.2d 888, 894-95
(Tex. App. - Austin 1989, pet. refd). Thompson received a 25 year sentence. This
sentence is greater than any sentence that would have been possible had the jury found
that Thompson acted in the heat of sudden passion. Thompson was clearly prejudiced
by his trial attorneys' ineffective assistance of counsel.
v.
Ballistics Expert
The state's proposed findings assert that the failure to hire a ballistics expert was
a matter of reasonable professional judgment. (See, proposed findings, p. 7, paragraph
25). It is, however, difficult to understand this finding. The trial attorneys conducted
an incomplete investigation. They were aware of and put on some evidence that
Thompson fired warning shots and that there were bullets in the house that the police
failed to find, yet they failed to put on the best evidence of this, ballistics evidence.
(See, Evid. Hrg., p. 13). There is no reasonable trial strategy basis not to adequately
investigate a case and then present the best evidence to the jury in support of the defense.
A proper investigation would have revealed that Thompson fired warning shots, just as
he said, and that the testimony the state presented at trial from a detective concerning
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Fact and Conclusions of Law - Page 5
the lack of bullets and bullet holes at the crime scene was erroneous at best and
purposefully misleading at worst. 2 (See Trial Record, Vol. 4: 160-161 ). In other words,
the ballistics evidence that undersigned counsel developed in connection with the writ
application would have supported Thompson's defense and undermined the state's case
at trial. This evidence would have led to Thompson's acquittal. The failure to present
it was the result of professional incompetence that greatly prejudiced Thompson.
VI.
Deceased's Violent Character
Thompson's trial attorneys failed to correctly argue to the trial judge the reasons
evidence about the deceased's violent character was admissible. Had they made a
proper argument to the trial judge, the judge would have allowed them to present
evidence to the jury proving that the deceased was the aggressor. This, of course, would
have made a difference in the outcome of the trial. The failure of the attorneys to know
the law and properly argue it to the Court was clearly ineffective. Thompson was
greatly harmed by this failure. If, however, as the state claims in their proposed
findings, that Thompson's trial attorneys properly preserved this issue for appellate
review, then Thompson's appellate attorney was ineffective for not properly arguing
2 The record developed in connection with this application for a writ of habeas corpus
supports a finding that the detective presented perjured testimony about the lack of bullets aud bullet
holes in the house. Even ifthe prosecutor was unaware of this perjury, Thompson's due process
rights were still violated. Thompson should be granted relief on this basis in addition to his other
claims. See, Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009).
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Pact and Conclusions of Law - Page 6
this issue to the Court of Appeals. The state cannot have it both ways. If the error was
preserved, this was a "dead bang" winner on appeal, had it been properly argued. The
failure to do so can be nothing other than ineffective assistance of appellate counsel.
FOR THE ABOVE REASONS, and for the reasons in all of the pleadings filed
by Applicant in the trial court, and especially Applicant's proposed findings in the trial
court, Applicant Timothy Randal Thompson respectfully requests that the Court of
Criminal Appeals reject the state's proposed findings, as adopted by the trial court, and
grant Applicant the new trial he deserves.
Respectfully submitted,
ROBERT N. UDASHEN, P.C.
Bar Card Number 20369600
BRUCE ANTON
Bar Card Number 01274700
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
(214) 468-8100
(214) 468-8104 fax
Attorneys for Applicant
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Fact and Conclusions of Law - Page 7
CERTIFICATE OF SERVICE
A copy of the attached Objections to Trial Court's Order Adopting State's
Amended Proposed Memorandum, Findings of Fact and Conclusions of Law was
mailed to the Tarrant County Criminal District Attorney's Office, Appellate Division,
401 West Belknap, Fort Worth, Texas 76196, on August 27, 2015.
ROBERT N. UDASHEN, P.C.
Applicant's Objections to Trial Court's Order Adopting State's Amended Proposed Memorandum, Findings
of Fact and Conclusions of Law - Page 8