§2,778 / TARRANT COUNTY TEXAS 11.07 WRIT NO. C~396-010272-1152016-A COURT OF CRIMINAL APPEALS WRIT * (unknown at this time ` `§§EDE@@ to Applicant) REY§R§XNALAW § EX PAR'TE 2@1]5 IN THE TEXAS COURT OF CRIMIE§§ 05 APPEALS, AUSTIN, TX Ab@% mower GP@rk CO’>LO‘>¢O‘>CO’H»O‘> DESMOND LEDET OBJECTION #J;_OBJECTION TO THE HABEAS TRIAL COURT'S ADOPTION OF INACCURATE, INCOMPLETE, AND INCORRECT FINDIMGS OF FACT AND LEGAL CONCLUSIONS PROPOSED BY THE STATE REGARDING THE§DENIALFOF APPLI- CANT'S FUNDAMENTAL RIGHT TO A PUBLIC TRIAL(GrdundS 1,3 &4) AND HIS GROUND OF INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON DEFENSE COUNSEL'S¢FAILURE TO OBJECT TO THE DENIAL OF THE PUBLIC’TRIAL RI- GHT( Ground #2) TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: TI,Desmond Ledet, the Applicant pro-se, in said writ of§habeas corpus. humbly and respectfully presents this honorable Court with the following 0 B J E C T I 0 N as stated above in the heading. I will refer to myself as the "Applicant". Today is Feb.B;j. 2015. On=JanvZB& 2015 the Applicant received from Prison Mailroom staff a letter notifying him that the trial court adopted the State's ix inaccurate,'incomplete, and incorrect findings of fact and conclu- sions of law. Please consider this objection timely as it is bea ing placed in prison mailbox TSF days after Applicant became aware of the habeas judges adoption, and notified that the ORDER from that judge ordered the entire writ transcript forwarded to this Court on Jan. 22, 2015. The Post Conviction writ Clerk in Tarrant County ("Cindy") informed the Applicant's mother over the phone that on the 23rd of January the entire writ/writ transcript, etc, was forwarded to your Court. The Applicant has not yet received notice from Your Court-#~-`giving the writ number(assigned by this "p._l"_<_>f Ix. (A 42 PAGE EXHIBIT IS Now ATTACHED) Court of Criminal Appeals). Since the Applicant has been inform- the writ was sent to this Court along with the trial court's er- roneous adoption of the State's proposed findings and legal con- clusions/ .AZ this accurate OBJECTION is now presented to your Court: THE TRIAL COURT'S FACT FINDINGS DO NOT ACCURATELY REFLECT THE EVIDENCE DEVELOPED IN THE HABEAS CORPUS RECORD THAT PROVES BY THE PREPONDERANCE OF THE EVIDENCE THE APPLICANT IS ENTITLED TO RELIEF.. EX parte Re€d, 271 S.W. 3d 693/ 729 (Tex.Crim.App.ZOOB). THE COURT'S FACT FINDINGS ARE.INCOHPLETE AND DO NOT FULLY CONCEDE ALL OF THE EVIDENCE DEVELOPED IN THE HABEAS RECORD/ NOR IN THE REPORTER'S RECORD,THAT ESTABLISH BASED UPON THE PREPONDERANCE OF THE EVIDENCE THE APPLICANT IS ENTITLED TO HABEAS CORPUS RELIEF. THE COURT'S FACT FINDINGS EXCLUDEMMULTIPLELESTABLISHED FA%I CTS RELEVANT TO THIS HONORABLE COURT'S RESOLUTION OF GROU- NDS #1-4 THAT ESTABLISH BY THE PREPONDERANCE OF THE EVI- DENCE THE APPLICANT IS ENTITLED TO HABEAS CORPUS RELIEF. THE APPLICANT HAS ALLEGED SEVERAL MATTERS IN THE APPLICA- TION NOT ADMITTED BY THE STATE IN THEIR FACTVFINDINGS A- p DOPTED BY THE TRIAL COURT AND SUBMITTED TO THIS COURT. BE- CAUSE THOSE MATTERS ARE DEEMED DENIED(TéX.COde Crim. PrOC. Art.ll.O7 §3(b)) THE APPLICANT FURTHER OBJECTS TO THOSE DEEMED DENIALS¥AS BEING INCORRECT AND HERE AND NOW REASSE%` RTS EACH AND EVERY FACTUAL”MATTER*ASSERTEDFIN~THE§APPLICA- TION AS BEING CORRECT AND ESTABLISHING BY THE PREPONDERANCB OF THE EVIDENCE THE APPLICANT IS ENTITLED TO RELIEF. THOSE MATTERS INCLUDE/ BUT ARE NOT LIMITED TO: l) 3) The visiting sit in judge at trial(Phillip Vick) failed to take every reasonable measure to accomodate public attendance during the voir dire proceedings of Appli- Cant's trial. Instead all at one time he summoned at- least §§, possibly 15 more, prospective jurors all into the courtroom's public seating area at one time, leaving no room in the gallery for Applicant‘s parent's who had to wait in the hall. See Application, p.6-7; Memorandum p.3-15; [v.3 RR p.5 lines 24-p.6 line 7]. The 396th Judicial District Court of Tarrant County at the time of Applicant's trial and presently seats app proxiamatelv 45 people in the public seating area. See Application, p.7; Memorandum p.6. The Applicant was never informed of his right to a pub-j lic trial by the Honorable judge presiding at trial, nor by his defense attorney(Hon. Fortinberry), nor by the p.II of IX 6) 7) State, and did not knowingly, or intentionally relin- quish or abandon, his right to a public trial, and to due process, as guaranteed him by the sixth and four- teenth amendment of the\U.S. Constitution. See Appli~ cation, p.6-9; Memorandum, p.18; Memorandum, Exhibit C: Applicant's Unsworn Declaration-Statement. The trial Court did not consider reasonable alternatives to closing the proceedings. See Application, p.6-9[v.3 RR p.5 lines 24-p.6 line 7]; Memorandum. p.l4516 The jury box was left empty during voir dire and could have been used to accomodate Applicant's parents,or to place enough prospective juror's there to allow some room in the public seating area for Applicant's two pa- rents to be able to observe voir dire. See Application p.7; Memorandum, p.lG-ll; W.3 RR p.l4 lines 12-14] The trial judge presiding made no findings of some over- riding interest likely to be prejudiced by allowing Mr. and Mrs. Ledet(Applicantls parents) or any member of the public into the voir dire proceedings. See Application p.9; Memorandum p.16. The Second DistrictNCourt of Appealsnhas.already reverss ed atleast one conviction in which the same exact judge (Hon. George Gallegher) who adopted the finding the Ap- plicant is nov objecting to denied the defendant his right to a public trial during voir dire in the exact manner the Applicant was denied a public voir dire. in the exact same courtroom. See Memorandum, p.26-27; gur- ner v. State, 413 S.W. 3d 442, 447(Tex.App.Fort Worth 2012, no pet.). ` ' THEHTRIAL COURT'S LEGAL CONCLUSIONS ARE INCORRECT AND CON- FLICT HEAVILY WITH WELL ESTABLISHED OPINIONS FROM THIS COURT AND THE UNITED STATES SUPREME COURT. THE IMPROPER LE- GAL CONCLUSIONS INCLUDE, BUT ARE NOT LIMITED TO: l) The adopted legal conclusions fail entirely to acknow- ledge that the deprivation of a public trial is a ign- damental error according to this Court's precedent. Clark v. State, 365 S.W. 3d 333, 340(Tex.Crim.App.2012) ; & Neder v. United States; 527 U¢S. l, 7(1999). (Issue raised in Applicant's Ground #4). See "State's Proposed L¢.Findings...Conclusions of Law", p.l3, T4; p.l4, U7 a) Respectfully asserted, this Court should file and set this case for submission, using Applicant's Ground #4 to settle once and for all any residual ambiguity in the jurisprudence of this State concerning the funda- p .II'I“'of Ix‘v 2) -mental nature of the right to a public trial. See Clark v. State, 365 S.W. 3d at 340("fundamental er- ror occurs when certain constitutional rights are violated, such as... the right to a public trial") (citations omitted). The adopted legal conclusions entirely fail to acknow- ledge that Applicant's Public trial Grounds are not ;;u simply Grounds that he was denied his right to a public trial, but instead that WITHOUT EVER HAVING KNOWLEDGE OF THAT RIGHT) OR EVER BEING INFORMED OF THAT RIGHT} HE DID NOT EVER INTENTIONALLY ABANDON OR RELINQUISH THAT RIGHT, Sneckloth v. Bustamonte, 412 U.S. 218, 241-42 (1973); Hodges v. Easton, 106 U.S. 408, 412(1982) The State”s adopted legal conclusions erroneously cite United States v. Hitt, 473 F.3d 146, 155(5th Cir. 2006) for the proposition to this Court that the Applicant somehow waived his right to a public trial because his defense attorney,who never informed the Applicaht of j his public trial right,failed to object. See State's Proposed...Findings...Conclusions of Law", p.14, U6-7; p.l9, U57, 59. The Applicant 0 B J E.C;T S to the trial Court's adopt- ed misapplication of "Hitt" ld. to this case. See Hitt/ 473 F.3d at 155(Where a defendant, WITH KNOWLEDGE, of the closure of the courtroom, fails to object, that de- fendant waives his right to a public trial). "Hitt" is non~applicable to this case, APPLICANT HAD NO KNOWLEDGE OF HIS RIGHT TO A PUBLIC TRIAL AND EVEN DEFENSE COUNSEL` HIMSELF IN HIS AFFIDAVIT STATED THAT HE DID NOT BELIEVE APPLICANT'S PARENTS BEING PROVIDED NO ACCOMODATIONS IN THE COURTROOM, BEING STUCK OUT IN THE HALL DENIED THE APPLICANT HIS RIGHT TO A PUBLIC TRIAL. See FOrtinberry Affidavit, p.2(response to Ground #4). _The Applicant can not be penalized for not having knowledge his own defense attorney was ignorant of. ' The Applicant 0 B J E C TwS to the trial court's adopt- ion of the State's erroneous proposition that Applicant failed to prove that the trial court closed the court~ room to the public. See State's Proposed...Findings... Conclusions of Law", p.l3, U3; p. 15, Ul4 All of the evidence in the habeas record that has been developed supports a legal conclusion that the trial court filled every available seat in the public seating l.area("gallery") with potential juror's leaving no acco- modations for the public, See Fortinberry Affidavit, p. l: a)'"the'galleny~was'full." l See Fortinberry Affidavit,p. p.Iv dr Ix 7) b) The Reporter's Record proves the public seating area was full with potential juror's. See Application, p. 6-7; Memorandum, p.3-15;[v.3 RR, voir dire]. c) "...the courtroom was full." Fortinberry Affidavit/ p 1. There was open space in the jury box where Appli- cant's parents could have set(conceded by defense counsel) but not in the public seating area("gallery" ) "the gallery was full". Fortinberry Affidavit, p.1 d) The 396th JudicialFDistrict Court only seats approxie amately 45 people in the public seating area. The trial court closed the proceeding because the Court entirely failed to fulfill it's obligation to take every reasonable measure to accomodate public attendance at criminal trials." Steadman v. State, 360 S.W. 3d 499, 505(Tex.Crim.App.2012)(quoting Presley v. Georgia, 130 S.Ct. 721, 725(2010) 8) The Applicant O B J E C T S because the adopted legal "When conclusions,when compared with the indisputable evidence entirely disregard the Court of Criminal Appeals and U- nited State's Supreme Court precedent holding that: determining whether a defendant has proved that his trial was closed to the public, the focus is not on whether the defendant can show that someone was actually excluded. Rather a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled it's obligation 'to take every reasonable measure to acco- modate public attendance at criminal trials.'" 'Lili! v. state, 365 s.w. 3d 321, 331(Tex.crim.App.2012)(quoting Presley, 130 S.Ct. at 725L 9) The trial Court's adopted legal conclusions entirely lO) fail to utilize this Court's precedent for the proper standard of review when determining whether the Appli- cant has proved that his trial was closed to the pub~ lic. ATTACHED TO THIS OBJECTION IS A.TIME"FILEDYSTAMPED COPY OF: "APPLICANT'S PROPOSED FINDINGS OF FACT AND CONCLU- SIONS OF LAW REGARDING HIS GROUNDS ill #3, & 4...AND ALSO HIS GROUND #2..." The Applicant incorporates that attachment into this objection by reference. a) Specifically, On Jan. 6, 2015, far in advance of the State proposing any findings or conclusions(State proposed on Jan.20,2015) the Applicant had already properly filed with the Post Conviction writ Clerk at Tarrant County District Clerk's office the accu- P.v of IX rate and correct proposed findings of fact and conclu- sions of law pertaining to the present Grounds #l-#4. ll) Specifically attached to this objection is a 42 page do- cument that was filed on Jan. 6, 2015 that includes a co- py of defense counsel's(Hon. Fortinberry)iAffidavit, (. 12) In concluding here this objection the Applicant asserts that he objects to the trial court's adopted findings of fact and legal conclusions concerning Grounds #l-#4 as being incorrect, inaccurate, and incomplete: AND FURTHER RE-INVOKES THE ATTACHED ”APPLICANT'S" PROPOSED FINDINGS AND LEGAL CONCLUSIONS AS BEING CORRECT. a) Because the Applicant has already filed a copy of "Ap- plicant's proposed findings and legal conclusions with the Tarrant County District Clerk, a true copy of the 42 page document now attached, should have already been sent to this honorable Court by the clerk along- with the entire writ transcript, etc. by For complete and accurate findings and legal conclu- »sions for Ground #l--- See the attached "Applicant's" proposed findings/legal conclusions at p.l-ll c) For complete and accurate findings and legal conclu- sions:'for Groundi#Z--~'See the attached "Applicant's" proposed findings/legalettled" for over 25 years¢ In 2007, several years before Applicant' s triall in Owens IV, the court speaking of Owens trial in 1997/ citing Waller and Press- -Enterprise I, stated: :"Reasonable counsel with requi~ site knowledge of the law would have objected]..the important Supreme Court precedents had existed for more than a dedade." :Owens IV, 517 F. Supp. at 576. P.30 of 42 z 21. This Court concludes that Applicant's defense attorney, Curt- is Fortinberry also should have been aware of the applicable law 13 years after Owens trial, over 25 years after the Su- preme Court decided Waller and Press-Enterprise I/ and over 5 months after the Supreme Court reiterated that the applicable law was already very well established in Presley . 22. "access to counsels skill and knowledge is necessary to ac- cord“defendant's the ample opportunity.to meet the case of the prosecution' to which they are entitled." Strickland, 466 U.S. at 685 . 23. "Counsel;..has a duty to bring to bear.such skill and knowle- dge as will render the trial a reliable adversarial testing process," Id. at 688 » A COPY OF ATTORNEY FORTINBERRY' S AFFIDAVIT IS ATTACHED TO THESE PROPOSED FINDINGS AND CONCLUSIONS. ___________-________________________________-_____________________\_ ______ 24. Attorney Fortinberry stated in his Affidavit that: "Because the gallery was full, Petitioner's parents assumed they were not allowed in." (His Affidavit response to Ground #2). And . "I do not believe that his parents not being in the court- room during voir dire constitutes a violation of his sixth and fourteenth amendment rights to a public trial." (His Af- fidavit response to Ground #4). 25. In his Affidavit he also stated: ”I cannot speak for the tri- al judge as to why he did not perform a 'sua sponte 'Waller' test, NOR DID IVSEE THE NEED FOR ONE.” HiS Affidavit respOn- se to Ground #3) 26. Based upon Attorney Fortinberry's own perspective reasoning at the time he failed to object this Court concludes that: a) Attorney Fortinberry believed that the trial court's pub- lic trial right offending action of: (l) filling the en- tire gallery(public seating area) with prospective jurorsf (2)_resulting in no accommodations being left inthecourt- room to accommodate the public, or Applicant's parents who he(defense counsel) had already spoken with out in the ha- ll, that he,had personally informed that they would have a problem being seated once voir dire began(based upon eith- er his version-or Applicant' s parent' s version, of what he said to them out in thelhall) (3) before and without ever performing the Supreme Court mandated ”Waller Test'( considering reasonable alternatives to closure, etc.), and (4) without ever even attempting to fulfill the court's obligation to ”take every reasonable measure to accommoda- te public~attendance at criminal trials”, did not, as he put it, :. constitute "a violation of" Applicant's "sixth and fourteenth amendment rights to a public trial."(His Af- ..... p.31 of 42 fidavit response to Grounds 41-#4). b) Attorney Fortinberry was unable to recognize the fact that he was a personal witness to all of the required ele+ ments that constitute an actual violation of the sixth and fourteenth amendment right to a public trial during 'voir dire. ~ c) Attorney Fortinberry's inability, inferred from his own words in the Affidavit, to recognize that his clients ri- ght to a public trial was being violated before his very own eyes, indicates that he too had a lack of understand- `ing of the well settled applicable law. d) Attorney Fortinberry was deficient for being ignorant of the applicable law in affect at the time of trial. e) Considering the totality of the circumstances, Attorney Fortinberry's Affidavit statement that he did not see a need for the trial Court to perform the Waller test("he did not perform a‘sua sponte 'Waller' test, NOR DID I SEE THE NEED FOR ONE") further indicates that he did not un- derstand the applicable law- This Court concludes his failure to object was unreasonable in light of the facts. 1) besides contending that Attorney Fortinberry "should have objected under the Sixth and Fourteenth Amend.... right to a public trial[ the Applicant also contended "He should have objected to the Waller Test Require-~ ments not being met.” See these findings p.21-23. 27. Finally, after having all the facts before him(Attorney»For- 28. tinberry) that constitute closure(knowledge that Applicant's parents were in the hall and had come to see the.trial) and (2) personal visual first hand knowledge that the trial court brought in a large panel of jurors who took up all of the a- vailable seats in the gallery(public seating area), (3) lea- ving no accommodations for the public(Applicant's parents/ etc.,), Attorney Fortinberry still said in his Affidavit: I was never asked to see if there was somewhere else they _ could sit during voir dire." (His Affidavit response to Grour nd #2)__and "to my knowledge the courtroom was not closed to the public."(His Affidavit response to Ground #4). This Court concludes that the above responses further indica- te that defense counsel erroneously believed, contrary to the applicable law, that Applicant's parents, or the Applicant( neither of which he had ever informed of the public trial ri- ght), had a responsibility to request of him that he find them(Applicant's parents)somewhere else to sit in the court- room since the public seating area was full with prospective jurors; in order to alert him that Applicant's public trial right was being violated so he could secure it- p.32 of 42 (a) Attorney Fortinberry has failed to point this Court to any case law or provision in the United States Constitu-l tion that holds that before he renders reasonably effect- ive counsel, by securing, or atleast attempting to secu- re, Applicant's fundamental right to a public trial, a right for Applicant's own benifit'and a safeguard for a fair trial, that the Applicant, or a member of the public was required to request him(Attorney; Fortinberry) to do so.( See Kimmelman, 477 U.S. at 377("it is through coune sel that the accused secures his other rights.") (b) This Court concludes that "Where the assistance of coun- ~sel is a constitutional requisite, the-right to be furni- shed counsel does not depend upon a request."(Carnley v. Cochran, 369 U.S. 506l 513(1962). And likewise once the Sixth Amendment right to counsel has attached,and during a critical stage of trial such as voir dire, the right to the effective assistance of counsel, including coun- 'sel$s duty to secure the accused ”other rights” does not "depend upon a request.“ ;§ (c) "The initiation of judicial criminal proceedings...marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Kirby v. Ill., 406 U.S. 682, 689-90(1962). The commencement of the criminal prosecution alone a- gainst the Applicant marked the point at which time the.u. guarantee of the effective assistance of counsel became applicable to the Applicant, McMann v. Richardsonv 397 y U.S. 759, 771 n.14(1970). That guarantee entails defense counsel playing "the role necessary to ensure that the trial is fair." Strickland, 466 U.S. at 685. In order to play that role it was necessary that Attorney Fortinberry secured, or atleast attempted to secure, Applicant's "o- ther rights” that are safeguards to the fundamental right to a fair trial..Kimmelman, 477 U.S. atq377§“The right-to public`trial is that type of "other'r-ight"v Cameron v. state, 2014 Tex.crim.App. LEXIS 1536, *14-*15. @d) Again, based upon Attorney Fortinberry's admitted sub~ jective reasoning from his personal perspective at the time of trial, his performance was deficient and based on a¢multidimensional misunderstanding or lack of knowledge of the applicable law. and inattention and neglect. 29. This Court further concludes that Attorney Fortinberry's sta- tement "to my knowledge the courtroom was not closed to the4 the public."(His Affidavit response to Ground-#4) indicates that his knowledge of the applicable law was so deficient that he was entirely unable to recognize that a closure had taken place before his very eyes in the samef or a similar ‘way,the trial judge in Cameron v. State, Id. thought that he; had not closed the voir proceedingsieven though he had. p.33 of 42 3©. 31. 32. This Court has already concluded that the voir dire proceed~ ing was closed. See these findings p.6-10. In Cameron, 2014 Tex.Crim.App. LEXIS 1536, *3-*8, the Court of Criminal Appeals noted that a trial judge who filled up the entire gallery with prospective jurors(as in Applicant's trial) did not believe that he had actually closed the voir dire proceeding to the public. That judge even said repeat-1 edly,after Cameron's attorney objected under the 6th Amend.- right to a public trial,to her familly and friends being put in the hall,so he could use the entire gallery to seat pro- pective jurors: "We recognize the right to be present during voir dire... I don't seeany room where anybody else would be able to sit and observe...There is no way this courtroom can acco- mmodate them...It's an open trial. Certainly people have the opportunity to observe. We just`don't know WEERE to put themr...l'm not ruling. I'm just telling you,WHERE can we put them?...l'm not over ruling you. WHERE are we going to put them?. .I've never ruled,that the public has been excluded. All I'm saying is WHERE do you suggest we put them?...You want to open up those doors and have them all stand in that little hallway there so they can observe the whole thing? Maybe we could do that. Would that satis% fy you?...l'm giving you alternatives...lf you want to o- pen those doors and put chairs and have people--have the public sit there, that's fine with me...The courtroom's _going to be absolutely stuffed with venire panel members. ...I am telling you that you can have people in this court- room...I just don't know WHERE to put them. So I'm not .ruling that anybody's excluded...I haven't told you that you cannot have people in the courtroom. Tell me WHERE to put them and we'll put members of her familly...The Court did not close the proceeding by any means..." Attorney Fortinberry's Affidavit echoes the same subjective 'reasoning,-or similar reasoning, relied on#by:the trial judge in Cameron for erroneously believing that the closed voir di- re proceeding, was not a closed voir dire proceeding. a) Specifically Attorney Fortinberry alleges in his Affida-i vit that in the hallway: "I did tell them I did not know WHERE" Applicant's parents "would sit during voir dire." (His Affidavit response for Ground #1). After that, similar to the trial judge in'Cameron, he`r'~'l then states: "..-the gallery was full.;.Petitioner's par- ents were present for his trial and were not excluded... I do not believe that his parents not being in the court-_ room during voir dire constitutes a violation of his sixth and fourteenth amendment rights to a public trial...to my knowledge the courtroom was not closed to the public." p.34 of 42 e) (His Affidavit response for Grounds #l~#4) In both cases,both Cameron's judge and Attorney Fortinber- ry(Applicant's trial lawyer),acknowledge that: (1) the gallery is full or about to be full with prospective jur- rors, (2) while having knowledge of the presence of fam- illy members,who represent the public,being present,yet '… having no seats available for them in the gallery. And (3) based on~Attorney Fortinberry's version offwhat he said to Applicant's parents in the hall(regardless of the fact it conflicts slightly with what Applicant's parents contend he said), he too, claims that just like Cameron's judge, that he made it known that he did not know WHERE the re- presentitives of the public would sit during voir dire. Cameron's judge communicated that: "I just don't know WHEF ~RE to put them" to Cameron's defense attorney who was ob- 'jecting to closure. Attorney Fortinberry alleges that he personally communicated to Applicant's parents that he did not know WHERE they would sit during voir dire. In both cases, neither(Attorney Fortinberry or Cameron's judge) was able to recognize that the existence of circum- stances that led each of them to conclude that they did `not know WHERE the public would sit,indicated that an in- fringement on the Sixth Amendment right to a public trial had occurred, or was about to occur. Neither of them acknowledged:that before such an infringe~` ment on the right to a public trial‘could be constitution- ally justified, that the trial court was obligated to: "take every reasonable measure to accommodate public at- tendance at criminal trials.“ Lilly, 365 S.W. 3d at 331( quoting Presley, 130 S.Ct. at 725).(& PerfornlWaller Test) Attorney Fortinberry's Affidavit alleges that after he ma- de Applicant's parents aware that he did not know WHERE that they would sit during voir dire, that instead of ob- jecting based on Applicant's right to a public trial, as he put it in his own words, he became: "busy getting ready vfor jury selection so I did not make an attempt to see to it they(Applicant's parents)had accommodations in the »courtroom during voir'dire."(His Affidavit Ground #l). Attorney Fortinberry,-failed to object to closure, based on inattention, neglect, and a lack of knowledge of the applicable law,that disabled his ability, just like Camer- on's trial judge, to know when,based on the totality of the circumstances,the voir dire was closed to the public. \Even after voir dire began, and there was no room in the gallery for the public, Attorney Fortinberry did notunder- stand that a closure had taken place, based on his own words.("to my knowledge the courtroom was not closed"). p.35 of 42 10. / 'This Court recognizes that the Applicant has made several ob- jections to Attorney Fortinberry' s Affidavit regarding his response to Grounds #1- #4. . There exist different versions between Fortinberry and the Ap- plicant and his parent's version/of what Fortinberry said to each of them,verbally at the time he failed to object to clo-, sure. ' ' Nevertheless what is desirable for this Court,i in order to ma- ke a decision judging whether or not Fortinberry was deficie- nt for not objecting to the unconstitutional closure,is evi- dence based upon his subjective reasoning at the time,and `whether or not his failure to object was based on strategy, or lack of knowledge of the applicable law, and inattention and neglect. Fortinberry has provided enough of the desired evidence need- ed to conclude that his performance was deficient, and his failure to object to closure,both before and after voir dire began,was in fact,based upon inattention and neglect, as well as a lack of understanding of the Applicable law. This Court concludes that, as to counsel's performance, "the Federal Constitution imposes one general requirement: that counsel make objectively reasonably choices” Bobby v. Hook, 130 S.Ct. 13, 17(2009), that being the law, based upon the record facts, and counsel's own Affidavit, failure to objectl ~underthe circumstances of this case,was and is objectively unreasonable. This Court has judged "the reasonableness of counsel' s con- duct on the facts of the particular case, viewed as of the time of counsel' s conduct." Roe v_ Flores- Ortega, 528 U. S. 470 , 477(2000). This Court concludes that the Applicant had Constitutionally ineffective assistance of counsel. Both prongs of Strickland are satisfied» "From the very beginning, our state and national constitu- tions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials..." Gideon v. Wainwright, 372 U.S. 335, 344(1963). That great - emphasis includes both the right to a public trial and the right to the effective assistance of counsel‘ The combined violations of the right to a public trial and »the effective assistance of counsel, in this particular case, amount to structural error: a Fdefect affecting the frame~ work within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante/ p.36 of 42 F499 U.S. 2791 310(1991) U. Conclusions of Law and Recommendation Concerning Ground #2: 1. This Court, after weighing the evidence of Attorney Fortinber- 4ry‘s own subjective reasoning at the time of trial presented in his own words in his Affidavit, the evidence in the Repor- ter's Record, the Application filed, the supporting documenta- in the Application, etc., as well as the foregoing factual and legal conclusions for this ground, as well as ground one, three, and four} etc. concludes by the preponderance of the evidence and the Applicable law that: a) Attorney Fortinberry was Constitutionally ineffective in regards to Applicant's Ground #2. b) Applicant has satisfied the prejudice prong of Strickland under structural error/attributable to the trial court,> and not simply defense counsel,explained by the Texas Cou- rt of Criminal Appeals in Johnson v. State, 169 S.W. 3d 223, 228-30(Tex.Crim.App.ZOOS). ' b) The only remedy is to vacate Applicant's conviction and GRANT HIM A NEW TRIAL. 2. This Court recommends GRANTING the relief sought by the Ap- plicant, Desmond Ledet. bd (D Signed on this the Day of / (PLEASE SIGN) The Honorable Judge Presiding p.37 of 42 1 “ Respectf uly;gybmitted, CIjM lb?{%£ DESMOND LEDET #016\1095 3899 State Hwy 98 New Boston, TX. 75570 CERTIFICATE OF SERVICE I, Desmond Ledet, certify that the original and two copies of these proposed findings of fact and conclusions of law have been hand delivered to the Tarrant County, TX. Criminal District Clerks: Office with instructions for the Clerk to file the ori- ginalf`with the 396th Judicial District Court of Tarrant County, TX; and to file one copy with the appellate section of the District Attorney's Office in Tarrant County, TX. umwle DESMOND LEDET ATTORNEY FORTINBERRY'S AFFIDAVIT The following four pages attached to these conclusion after this page is a true copy of Attorney Curtis L. Fortinberry's Affida- vit filed in response to Applicant's Grounds. p.38 or 42 l u~ N€)V 2 0 2014 _ ` - No. c'-396-1152016-A BT;ME\\ sTATE oF TExAs § m THE DlsTRlcT coul;T""""’" vs. ‘ ’ § 396TH Juch_lAL DlsTRlcT DEslvloND LEDET § TARRANT couNTY, TExAs AFF|DAV|T OF ATTORNEY CURT|S L. FORT|NBERRY BEFORE l\/|E, then undersigned au-thorlty, personally appeared Curtis L. Fortinberry, who being duly sworn, deposes as follows: “l\/|y name is Curtis L. Fortinberry. | am at least 18`years of age and of sound . mind. The facts stated in this affidavit are within my personal knowledge and are true and correct." “l was appointed this case on September 14, 2009 and will address all 34 of Petitioner’s polnts. ‘ Ground 1: Although the courtroom was full, there was space for Petitionerfs parents y Petitioner's claims that l refused to allow his parents in are false. l did tell them l did not know where the would sit during voir dire. l never said they were not allowed in the courtroom. | was busy getting ready forjury selection so | did not make an attempt to see to lt that they had accommodations in the courtroom during voir dire. Ground 2: ` l fall tc- see how Petitioner “suffered a sf;gctural defect” due to defense counsel not objecting to Petitioner’s parents not"pelng in the courtroom during voir dire. Because the gallery was full, Petitioner's parents assumed they were not allowed in. l was never asked to see if there was somewhere else they could sit during voir dire. Ground 3: l cannot speak for the trial judge as to why he did not perform a “sua sponte “VVa||er” test, nor did l see the need for one. Petitioners parents were present for his trial and were not excluded from the voir dire portion. p.39 Of 42 .(DEFENSE COUNSEL'S AFFIDAVIT p.l) Ground 4: j l do not believe that his parents not being in the courtroom during voir dire constitutes a violation of his sixth and fourteenth amendment rights to a public trial. As stated in ground 1, to my knowledge the courtroom was not closed to the public. Grounds 5-19: (l did not answer each separately as each ground states essentially the same thing, that l was ineffective for not objecting to the police interview) _ lt was my trial strategy to not object to the interview as, in my opinion, reinforced our contention that petitioner was innocent A|though pressured by the police detectives Petitioner continued to maintainl in innocence l Wanted the jury to see that he never wavered in spite of the persistence of the detectives Petitioner knew this prior to trial and never questioned me regarding this. ` Ground 20: Our defense was not that Petitioner never had sex with the victim, but that it was consensual. Defendant admitted this. So l do not see how it was ineffective for me to object to this line of questioning Ground 21: , In addition to my answer to ground 20, Petitioner admitted to having sex with the victim in a letter he wrote to the district attorney. Ground 22: l don’t understand this ground. VVhat he did not say, nor did he ever say, was that he raped the victim. That was the entire defense in-this case, that it was consensual. Ground 23: This goes back to my answer in grounds 5-19. ` Ground 241 , The State explained in voir dire, that if a defendant chose to testify, they had no special protection, that the jury did not have to believe them and presume what that person testified.to was true. _At no time did the State allude that if a person testified that they lost the presumption of i`nnocence. ' ` p.40 of 42 (DEFENSE COUNSEL'S AFFIDAVIT p._Z) Ground 25: This is simply not true. l did not ever,tel| Petitioner that he lost the- presumption of innocence just because he testified Ground 26: The State asserts in closing argument that he knew what he Was doing, that he . knew the neighborhood He knew where to go to have undetected sex. The fact that,he went to a location and did in fact have undetected sex indicates he knew where he was 'going. This is not outside the scope of the evidence presented Grounds 27, 28 & 29: Petitioner asserts that t'ne victim had “muitipie convictions” l saw no evidence of this. There are two offense reports in which the victim is the complainant but none where she is the suspect The State produced no criminal histories of the victim even after a motion to do so was fled The ocher also denied the existence of a criminal history for the victim under oath. Grounds 30, 31 & 32: This ground alleges impeachment evidence regarding two offense reports in which the victim was the injured party. |n one case, after making the deadly~c`onduct - family member report, she refused to cooperate in the investigation and the detective wasn’t convinced complainant -did not embellish the story. The other offense report was another assault family violence. The police interviewed both her and the suspect and the detective determined that the complainant really didn’t care about the case so he cleared it and said that all the elements of assault were not met. | do not believe this is impeachment evidence as she was not questioned about it so she did not deny anything regarding these reports Furthermore the mere fact that the police did not file a case against the two suspects does not mean the assaults did nothappen Ground 33: Petitioner is simply not telling the truth. As stated earlier in this response, the interview was not objected to because Petitioner steadfastly protested his innocence despite vigorous interrogation. The intent was to show the jury that if he was guilty he would not have maintained his innocence even when the detectives came at him from many different angles . Ground 34: This ground states no “ground” except for grounds 1-33 p.4l of 42 (DEFENSE COUNSEL'S AFFIDAVIT p.3) le. Gil|iland and l worked many hours on Petitioner's case. We read all of Petitioner’s letters (approximately 20) which included areas of questioning for trial. Petitioner was very engaged in the defense of his case. We discussed the strategy and theme of his case. He knew what we were attempting and was in full agreement Many of the grounds alleged are either false statements, or taken out of context A|though the jury ultimately did not believe it was consensual sex, they did believe him when he said ' he did not use a weapon, convicting him of a second degree felony rather than a first degree felony. We werenot ineffective in the defense of Petitioner and request that the Court deny his habeas corpus relief. f‘jz{ citrus L. Fortian / SUBSCR|BED AND S_WORN T BEFORE ME On Octobe Fortinberry. ~Najette ll/lartinez LANETTE A. MAR?!NEZ otary Public, State of Texas 2014 by Curtis L. \\um, \\\ vs 'l ¢` ‘.‘.'.£/),»", Notary Public, State ot Texas My Commission Expires June 08. 2015 ¥ ;p.42 of 42 (DEFENSE CoUNsEL's AFFIDAVIT p‘4)