IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-93,371-01 & WR-93,371-02
EX PARTE MATHIEU KANYABITABO AKA MATHIEU KANYBITABO, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 13819-D & 14123-D IN THE 350TH DISTRICT COURT
FROM TAYLOR COUNTY
Per curiam.
ORDER
Applicant made open pleas of guilty to aggravated assault and theft. In a combined
punishment proceeding, he was sentenced to thirteen years’ imprisonment for the aggravated assault
offense and sixteen months’ imprisonment for the theft offense. Applicant did not appeal his
convictions. Applicant filed these applications for writs of habeas corpus in the county of
conviction, and the district clerk forwarded them to this Court. See TEX . CODE CRIM . PROC. art.
11.07.
Applicant contended, among other things, that trial counsel was ineffective for failing to
investigate, pursue, and present mitigating evidence at the punishment hearing. The trial court made
only findings of fact; It did not give a recommendation. After determining that the trial court’s
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findings were insufficient, we remanded the case for a supplemental response from trial counsel and
for supplemental findings and conclusions from the trial court. We ordered the trial court to make
specific findings as to (1) what mitigation investigation trial counsel conducted, including whether
he sought out mitigating evidence from Applicant or his family members; (2) whether trial counsel
ever explained mitigation evidence principles to Applicant; (3) and whether trial counsel adequately
investigated and prepared for the cases.
The trial court obtained a supplemental affidavit from trial counsel and made supplemental
findings of fact. The trial court’s findings are still insufficient, as they are contradicted by the record
and do not include any explicit credibility determinations. To start, trial counsel’s affidavits contain
conflicting statements: he states in his initial affidavit that he only discussed bond issues with
Applicant’s family members, but then he states in his second affidavit that he discussed mitigation
concepts with them. According to habeas counsel’s and Applicant’s sister’s affidavits, trial counsel
never discussed the case with Applicant’s family. And according to Applicant, he and his family did
not know to provide information about his traumatic childhood to trial counsel or the Pre-Sentencing
Investigation (“PSI”) interviewer because trial counsel never provided specific guidance or asked
questions that would elicit such information, but instead only said to disclose any information that
would be helpful to the judge.
Additionally, trial counsel states in his supplemental affidavit that it was a strategic decision
not to present evidence of Applicant’s friend, Chance, dying in his arms. However, Applicant’s
application indicates that trial counsel’s account of that incident is incorrect and that trial counsel
was unaware that the incident was an underlying circumstance of Applicant’s aggravated robbery
case.
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Finally, trial counsel states in his supplemental affidavit he adequately investigated
Applicant’s cases for punishment. But, as stated above, Applicant alleges that trial counsel did not
sufficiently explain mitigation concepts to him or ask specific questions that would elicit such
evidence. Applicant has also presented evidence that trial counsel’s client file contained no
discovery, letters, or notes, and that counsel had only one jail-house meeting with Applicant prior
to the preparation of the PSI reports. The trial court shall therefore conduct a live evidentiary hearing
at which trial counsel shall be called to testify.
Applicant appears to be represented by counsel. If he is not, the trial court shall determine
whether he is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial
court shall appoint an attorney to represent him at the hearing. See TEX . CODE CRIM . PROC . art.
26.04.
The trial court shall make supplemental findings of fact and conclusions of law regarding
Applicant’s claim that counsel was ineffective for failing to investigate, pursue, and present
mitigating evidence at the punishment hearing. The trial court shall make specific findings as to the
credibility of trial counsel’s testimony, as well as any other witnesses’ testimony, at the live
evidentiary hearing. The trial court shall make further findings of fact as to trial counsel’s
conflicting statements regarding his conversations with Applicant’s family, including whether he did
discuss mitigating concepts with them, and if so, when those discussions took place and what
specific questions he asked them. The trial court shall also make findings as to what specific
questions counsel asked Applicant to elicit mitigating information and how counsel prepared
Applicant for the PSI process. Finally, the trial court shall make specific findings as to whether trial
counsel knew that the incident involving Applicant’s friend Chance was an underlying circumstance
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of Applicant’s aggravated assault case and whether, given his allegedly incorrect rendition of that
incident, his decision not to present this evidence at punishment was reasonable. The trial court may
make any other findings that it deems relevant and appropriate to the disposition of Applicant’s
claim.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing the
transcription of the court reporter’s notes from the live evidentiary hearing and a copy of the exhibits
admitted, along with the trial court’s supplemental findings of fact and conclusions of law, shall be
forwarded to this Court within 120 days of the date of this order. Any extensions of time must be
requested by the trial court and shall be obtained from this Court.
Delivered: July 27, 2022
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