Webb, Michael Renard

31 ,¢)3¢1~02,@3 lance

January 27, 2015
Smith Count

100 North adway, Room 204
Tyler, Te 1_

Re: Exparte Michael Regard We/)b, Case NG’S. 007-0447-1 l, 007-0048-.11, 007-0449-1 l & 007-
0450-1 1 (In the 7‘h ludicial District Court of Smith County, Texas).

‘r` Reply to State’s Original and Supplemental Answers to Application for Habeas Corpus

Dear Clerk:

Enclosed please find the original copy of Applicant Webb’s Reply to State’s Original and Supplemental
Answers to his Original Applications for Writ of Habeas Corpus Applications, to be filed among the
papers in the above-styled and numbered causes. v

Please notify Applicant at his address listed below of the date of filing and disposition of these
proceedings

Thank you for your kind attention to this matter.

Sincerely,
(

,PECE|VED lN

OOURT OF CRlMINAL APPEALS
FEB 0 4 2015

810 FM 2821
Huntsville, Texas 77349 Abd Acosta, Cl@|'k
Enclosures

CC:

*I' Abel Acosta, C|erk
Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 7871 l

’1' Aaron S. Rediker
Asst. District Attorney
Smith County, Texas
100 North Broadway, 4"' Floor
Tyler, Texas 75 702

Fi|e

CAsE NUMBER: 007-0448-11-A ©@PY

EX PARTE § IN THE DISTRICT COURT
MICHAEL RENARD WEBB § 7TH JUDICIAL DISTRICT

APPLICANT, TDCJ-CID#01784539 § SMITH COUNTY, TEXAS

APPLICANT WEBB’S REPLY TO STATE’S
ORIGINAL AND SUPPLEMENTAL ANSWERS TO HIS
ORIGINAL APPLICATION FOR WRIT OF HABEAS CORPUS
WITH BRIEF IN SUPPORT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, your Applicant, Michael R. Webb, TDCJ-CID#01784539, proceeding in
pro se, in the above-styled and numbered cause pursuant to article 11.07, § 3 of the Texas Code
of Criminal Procedure, and files this, his Reply to the State’s Original and Supplemental
Answer(s) to his Original Application for Writ of Habeas Corpus and in support thereof, would

show the Court as follows:
I.

Jurisdiction

The Court has subject matter and jurisdiction over the parties pursuant to Texas Code of

criminal Procedure, Article 11.07. et. seq.
II.

CONFINEMENT & RESTRAINT

Applicant was indicted in cause number 007-0448- ll, filed in the 7th District Court of

Smith County, Texas, for the offense of possession/manufacture with intent to deliver a

controlled substance, namely cocaine, >4g <200g,1 a second degree felony (enhanced). On
March 19, 2012, Applicant, with his two trial attorneys, Mr. Greg Waldron and Ms. Tonda
Curry, entered into a non-negotiated plea of guilty in a single hearing.2 Based on his plea entered
at that time before the Court, the Court found Applicant guilty of the charge alleged in the instant
indictment and sentenced him thereafter in a consolidated plea and sentencing hearing to
confinement in the Texas Department of Criminal Justice, Correctional Institutions Division
(TDCJ-CID) for thirty (30) years.3 A direct appeal Was taken to the Twelfth Court of appeals in
Webb v. State, No. 12-12-00175-CR, who affirmed the judgment and sentence in an unpublished
opinion dated June 25, 2013.4 No Petition for Discretionary Review was filed in this case.
Applicant filed his original application seeking a writ of habeas corpus in this case on September
20, 2014, as opposed to Respondent’s claim the same was filed on October 01, 2014.5
Respondent made a separate answer to the instant state writ application on October 16, 2014.6

Then, it made a “consolidated” supplemental response to the instant writ application on

l This case was as being enhanced with one enhancement paragraph; see Exhibit A, attached hereto and made a part
hereof.

2 Applicant’s related unadjudicated cases; case number: 007-0449-11 for manufacture/intent to deliver a controlled
substance, namely, cocaine <1 g in a drug free zone, a third degree felony (enhanced) and in case number: 007-0450-
11 for manufacture/intent to deliver a controlled substance, namely cocaine lg in a drug free zone (DFZ) to forty-
years imprisonment and in case number 007-450-11, for manufacture/delivery of a controlled substance, namely,
cocaine, weighing <1 g in a DFZ to twenty-years imprisonment by the trial court, to be served concurrently with his
life sentence already assessed.

13

pleading to and the transcript is demonstrative of the confusion that ensued during the process.
Contrary to both trial attorneys’ assertions contained in their respective affidavits in this regard,
neither of them personally informed him of this situation prior to it occurring or ask his
permission or if he was okay with proceeding in such a manner. lt was very confusing to
Applicant with the judge switching back and forth between him and the other unknown,
unrelated defendant to the point Applicant felt like an automaton being prompted by counsel
thought the proceeding to say yes or no to questions asked by the court. Applicant became
dismayed as the hearing progressed and acquiesced in the face of his complaints made to counsel
being rebuffed and ignored; it was like, “j ust be quiet, answer as you are told or else. . .”

Accordingly, Applicant would respectfully request that this Honorable Court sustain this
ground for relief.

B. Ground Two: Ineffective Assistance of Trial Counsel(s)

Applicant would point out to the Court that neither Mr. Waldron or Ms. Tonda Curry
responded to his second and third grounds presented in the instant application, and while the
State’s silence as to any issue they choose to remain silent to are deemed to be a “general
denial,” controverted issues involving ineffective assistance of counsel, whereinthe same is
designated as requiring resolution, which go unanswered or addressed by trial counsel affidavit
in their response to those allegations contained within the instant application are not afforded a
default response of a general denial within this Court’s jurisprudence and therefore be deemed as
admitted.

ln his second ground Applicant alleges that both his trial attorney’s representation was

deficient and the following instances of ineffective assistance of counsel has been made against

14

them in Applicant’s writ application, which he reiterates and discusses herein now further
below:15
(a) Counsel was ineffective for failing to obtain funds from the Court to hire a private
investigator to assist with investigating the facts of the case,
(b) Counsel(s) were ineffective for failing to complete a thorough investigation of the facts
and applicable law in these cases before advising Applicant to plead guilty.

Applicant avers that had counsel hired a private investigator with funds from the court it
would have increased his chances of having a better outcome in regards to the drug cases alleged
against him by the State. Applicant bases his assertions upon the following facts: (1) two of the
three pending drug cases against him occurred approximately nine months prior to the
aggravated assault case arising. However, neither of the attorneys was familiar with the facts or
evidence connected to the State’s prosecution of the prior drug cases when they became involved
with the assault case and assumed responsibility for defending him in his other related cases,
including the instant one; (2) At the time of his plea(s) to the three pending drug cases Applicant
asked his attorney to explain to him what “drug free zone” meant and how it would impact his
sentencing before the trial court and Mr. Waldron responded: “Just keep quiet and don’t piss off
the judge. Following counsel’s advice Applicant remained moot until asked a question by the
trial court in regards to the plea process and Mr. Waldron would either nudge him or tap his foot
against Applicant’s foot and then whisper out the side of his mouth the response he wished
Applicant to make. This became especially confusing to Applicant as the judge switched back
and forth between him and the unrelated defendant the court was taking a plea from at the same
time. ln retrospect, Applicant understands this is not how the law envisions plea hearings to be

conducted and these processes conducted in this regard that led to his unknowing and therefore,

involuntary guilty plea being entered. Counsel provides no information in rebuttal to Applicant’s

15 See State Writ Appl. at 8.
15

assertions in this regard within their respective affidavits and Applicant requests that this
Honorable Court resolves these allegations in his favor and thereafter recommending that the
writ issue.

(c) Counsel, through lack of investigation failed to determine through fingerprinting or DNA
analysis whether or not the bags containing the illicit contraband substance had ever been
in Applicant’s personal possession after being found, not on his person, but in proximity
allegedly to where he was arrested for aggravated assault against a public servant, after
being physically subdued by several other police officers.

Again, neither attorney addresses this issues in their affidavit(s) responding to the
ineffective assistance of counsel allegations contained in the instant writ application and

therefore, Applicant requests the habeas court deem them admitted by same.

(d) Counsels were separately and collectively ineffective for failing to object to the trial court
taking his pleas while doing so at the same time with an unrelated defendant

Applicant avers here, as he does above, that he objected to his plea being taken with the
unrelated defendant because it was too confusing to both his attorneys and was told the best thing
he could do is keep quiet, following counsel’s lead, say what he was‘told to say or he would
never see the light of day again. That is a very strong a persuasive thereat, which applicant took
seriously and complied when Mr. Waldron would either nudge him or tap his foot against
Applicant’s foot and then whisper out the side of his mouth the response he wished Applicant to
make. This became especially confusing to Applicant as the judge switched back and forth
between him and the unrelated defendant the court was taking a plea from at the same time.

C. Ground Three: Abuse of Discretion by Trial Court

Applicant incorporates by reference for all purposes the arguments presented in ground

two, supra, and would ask that the Court consider same in support of the instant ground

presented herein for all purposes

16

CONCLUSION
Accordingly, Applicant would respectively request that this Honorable Court sustain each
ground presented herein for habeas relief and remand this case back to the trial court for hirther

consideration

sIGNED On this the 27th day orJanuary 2015.

Respectfully submitted,

M
/l\/fi?fiael R. Webb, Applicant, Pro se
TDCJ-CID#01784539
Wynne Unit
810 FM 2821
Huntsville, Texas 77349

CERTIFICATE OF SERVICE

l, Michael R. Webb, Applicant, Pro se, TDCJ-CID#01784539, herein certifies that a true
and correct copy of the foregoing instrument was sent to the Respondent, by placing same_, in the
prison mail box, first-class, postage paid, addressed to:
Aaron S. Rediker
Smith County Asst. District Attomey
100 North Broadway, 4111 Floor
Tyler, Texas 75702

sIGNED On this the 27"‘ day OfJanuary 2015.

177

lM’if!iiael R. webb, Applicant, Pro se

17

EXHIBIT

A

18

1155

Page 1 o
INDICTMENT
' l’-/ /
THE sTATE oF TEXAS lN rHE 241WDISTRICT cotFRT ’ /
vs oI~`

sMITH CoUNTY, TEXAS
MICHAEL WEBB . . __

oeeieo'lc.:> F u~

CHARGE: Manuf`acture and Deliver Controlled Substance ARTICLE: 481 112 CONTROL #'.11-01679-1

t __” IN THE NAME. AND BY THE AUTHORITY OF THE STATE OF TEXAS:

THE GRAND IURORS, duly selected, organized, sworn and impaneled as such for the County of Smith, State
of Texas, at the January-June Term, 201 1, of the 241 51 Judicial District Court in and for said County, a quorum
thereof being present, upon their oaths present in and to said Court that on or about the 2151 day of July, 2010,
and anterior to the presentment of this lndictment, in the County of Smith and State of Texas, MICHAEL
WEBB did then and there knowingly deliver, by actual transfer, to Christopher Leadon, a controlled substance,
namely, Cocaine, in an amount of four grams or more but less than 200 grams including any adulterants and

dilutants;
And it is further presented in and to said Court that, prior to the commission of the aforesaid offense, on the 30111

day of July, 1998, in cause number 241-80361-98 in the 241" Judicial District Court of Smith County, 'l`exas,

the defendant was convicted of the felony offense of Robbery;

AGAINST THE PEACE AND DIGNITY OF THE STATE.

Foreman of the Grand Jury

Original - Pinl< State’S Copy - Green Defe_ndant’s Copy - Canary

20

THE STATE OF TEXAS
COUNTY OF SMITH

I, Lois Rogers, Clerk of the District Court within and for the County and State aforesaid, do hereby certify that

the foregoing contains a true and correct copy of the Indictment in Cause No. , of the State of Texas
vs as now on tile in this office.
IN TESTlMONY WHEREOF l hereto set my hand and seal, this day of
. A.D. 20
LOIS ROGERS
By Clerk of the District Court
Deputy Smith County, Texas
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EXHIBIT

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19

CASE N0.007-O448-ll COUNT 1
lNCiDENT NO./TRN: 90614241 19

THE sTATE oF TEXAS § IN THE 7"' JUI)ICIAL

v. § DISTRICT COURT
MlCHAEL RENARD wEBB § sMITH COUNTY, TEXAS
STATE lD NO.: TX05501439 §

JUDGMENT OF CONVICTION BY COURT_WAIVER OF JURY TRIAL

Judge Presiding: lloN. KERRY L. RUSSELL Date .ludgment Entered: 04/24/12

Anomey for state g£:;::ogmgham R‘ Va"°e/C' Auom¢y for Der¢ndam; WALDRON, GREGGRY A,
glffensc for which Defendant Convicted:

MAN/DEL CS PG 1 >= 4G < 200G

Charging lnstrument: Statute for Offense:

lNDlCTMENT 481.112(d)

Date of Offense:

07/2|/|0

Degree of O_t‘fen§§: Plea to Ot`fense: Findlngs on Deadly Weapon:
1“ Degree Felony Guilty N/A

'l`erm§ of P|ea Bargain:
Defendant Made Open Plea.

Pfea to 1" Enhanccment Paragraph: TRUE Plca to 2”d Enhancement/Habitual Paragmph: N/A
Findings on lal Enhancement Findings on Z“d Enhancement/Habitual

Paragraph: TRUE Paragraph: N/A
Plea on Jurisdictional Paragraph: N/A

F indings on Jurisdictiona.l Paragraph: N/A

Date Sentence Imposed: 04/20/2012 Date Sentence to Commence; 04/20/2012
Pumshmcm and Plac° °f 30 Yea rs/ Texas Department of Criminal Justice-Institutiona[ Division

Coni`mement:

TlllS SENTENCE Sl~lALL RUN CONCURRENTLY WITH CAUSE NO. 007-0447-[1

[:] sENTENCE oF coNFrNF.MENT sUsPENI)ED, DEFENI)ANT PI,ACED ON CoMMUNlTY SUPERVISloN FOR N/A.

Fine: _C,Qgrt Cost_s; Resti;gjgn; Restitu i n P l t ~
l?] AGENCY/AGENT (scc below)
Smith County Collectlons Department
$°'°° 5363'°° 5515'°° 200 E. Ferguwn, suite 213

Tyler, Tx 75702
Sex Offender Regiscration Requirements DO NOT APPLY to the Defendant. TEx. CODE CRIM. PROC. chapter 62

The age of the victim at the time of the offense was not provided.

'l`ime Credited: 415 DAYS
All pertinent information. names and amssmems indicated above unincorporated into the language of the judgment below by reference
This cause was called for trial in Smith County, Texas. The State appeared by her District Attomcy.

Counsel / Waiver of Counsel §select one)

El Defendant appeared in person with Counsel.
[] Defendant knowingly, intelligently_. and voluntarily waived the right to representation by counsel in writing in open court.

22%

Both parties announced ready for tria|. Del`enda.nt waived the right of trial byjury and entered the plea indicated above. The Court then
admonished Defendant as required by law. lt appeared to the Court that Det`endant was mentally competent to stand trial, made the plea freely and
vol untarily, and was aware ot` the consequences of this plea. The Court received the plea and entered it of record. Having heard the evidence
submitted, the Court found Det"endant guilty of the offense indicated above. ln the presence of Defendant, the Court pronounced sentence against

Defendant.
The Court FlNDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Det`endant is CUlLTY of

the above ot`l`ense. The Court FlNos the Presentence Invcstigation, if so ordercd, was done according to the applicable provisions of TEX. CODE
CRIM. PROC. an. 42.12 § 9.
The Court anltns Defendant punished as indicated above lite Court ORDERS Dct`cndant to pay all t'tnes. court costs, and restitution as

indicated above.

funishment thions §seiect one}
§ Cont'mement in State Jail or lnstitutional Division. The Court ORDERS the authorized agent of the State of Texas or the Sherit`f of this County
to take, safely convey. and deliver Defendant to the Director of TDCJ-SJF. The Court ORDERS Defendant to be confined for the period and in the
manner indicated above The Court Onocas Dcfcndant remanded to the custody of the Sheriff of this county until the Sheriff can obey the directions
of this Sentence. The Court ORDERS that upon release from confinement Defendant proceed immediately to the Smith County District Clerk’s
Oii'ice. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid tines. court costs, and restitution as
ordered by the Court above.
[] County .lait-Cont‘mement / Cont'mement in Lieu of Payment. The Court ORDERS Defendant immediately committed to the custody of the
Sheril`f of Smith County, Texas on the date the sentence is to commence Dei`endant shall be confined in the Smith County Jail for thc period
indicated above The Court ORDERS that upon release from confinement Defendant shall proceed immediately to the Smith County District Clerk's
Oti`ice. Once there. the Court ORDERS Dcfendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as

ordered by the Court above.
[] Fine On|y Payment. The punishment assessed against Def`endant is for a FtNE oNLv. The Court GRDERS Defendant to proceed immediately to

the Gf`iice of the Smith County District Clerk. Once there, the Court ORDERS Defendant to pay or make arrangements to pay all fines and court
costs as ordered by the Court in this cause.
Execution / Sus ension of Sentence select one

§ The Court ORDERS Dcfendant‘s sentence Exr-;curco.
[___] The Court Onnsns Defendant‘s sentence of confinement sus\>aNt>t:n. The Court Onnr;ns Defendant placed on community supervision for the
adjudged period (above) so long as Det`endant abides by and does not violate the terms and conditions of community supervision The order setting
i`onh the terms and conditions of community supervision is incorporated into this judgment by reference

The Court ORDERS that Def`endant is given credit noted above on this sentence for thc time spent incarcerated

® Attac!tment A, Order to Withdraw Fuuds in incorporated into this judgment and made a part hereof.

Sigoed and Ordered on this£ May of April, 2012. y M
X § t

N BLE KEéRY L. RUssELL
u PREsmING

Right Thumbprint:

23

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EXHIBIT
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20

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b esseron <§"`LE§§K
cAusE NuMBF._R oo7-o44a-.-;1'_1j-A _ . _
CAUSE N'UMBER 007~0449-1.1-.33|'$0£€ ~8 PH li= 56 _
CfAUSE NUMBE-R 007-04_50-1.1-.¢\`.3-!`1“"_l COUNTY few
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EX PARTE § IN TH_E 7 , _ ; _9_-¢1?_., m

m

MICHAEL RENARD WEBB § SMITH COUNTY, TEXAS

sT-ATE’s suPPLE-M'ENTAL ANswER IN oppos'moN
To APPucATloN son wle oF HABEAS coRPus

TO THE-HONORABLE COUR'_I_`!

Pursuant: to article 11.07, section 3 of the Te)'casl Code of ' Crimi`r'ial
Procedure, the State, acting through the undersigned Assistant Crirn`inal
District Attorney, urges the Court to find there is no necessity for a hearing on
any of applicants alleged grounds for relief and to recommend relief be
denied..

STATEMENTOF THE CASE

The'applieant_, MICHAEL WE~BB, was indicted `i;n cause number 007-0_448-
11,' 007-0449~1'1, and 007~0450-11, filed in the 7th Disi;rict Court of Smith
County, Texas, for the offenses of ' possession of cocaine with the intent to
deliver, possession of cocaine in a drug-free zone with intent to deliver,
possession of cocaine in a drug-free zone with intent to deliver, respectively.

On 19 March _zoiz_~,- applicant, with his counsel, entered nonnegotiated pleas of

46

guilty in each case in a single hearing Based on his pleas, the Court found
applicant guilty of the offenses as alleged in the indictments and sentenced
him to confinement for 30 years in the Tex`as_ Department of C_ri_mi_r_l_a_l
justice-Institutional Division in Cause Number 007-0448-'1`1, 40 years in
Cause Number 007-0449-11, and 20 years in Cause Number oo"7-45`o-11,
without a fine. The Twelfth Court of Appeals affirmed applicants convictions
on 25 ]u_ne 2013. Webb 'v. State,v Nos. 12-1'2.-00175-CR, iz'-ii-ooi'i'€-'CR, 12-1-2-
oOl'77-CR;, 12-12-00178-CR, 2013 Tex.. App. LEXIS 7692. (Tex. App.-Tyler june
2_5, 2013, no pet.) (mem. op., not._designated for publication). The State timely
filed its response and, as applicant alleged that he received ineffective
assistance from his trial counsel, Gregory A.. Waldro'n and Tonda L. Curry, the
Court granted `_t_l_ie State’s request for a designation of applicants first and
second grounds for future resolution In compliance with the Court’s
designation order, Mr. Waldron and M_s_. Curry filed their affidavits on 10
November'and 18 No`vember 2014, respectively-.-
STATEMENT or FACTS

The State challenges all factual allegations _rn_a_d_e by applicant in his writ

application and specifically denies that he is entitled to relief on any of his

claims

47

APPLICANT’..$ ALLEGATIONS’

Applicant alleges two separate grounds for relief: (1) involuntary plea due
to the ineffectiveness of trial counsel-; (2) ineffective assistance of counsel for
failure to properly investigate the facts of applicants case, among other
reasons;; and ('3) that the Court abused its discretion i_n conducting a group
plea session These claims are denied_.

STANDARD QF'REVIEW FoR l-N`EFFECT`IVTENES$ CLA_I;MS A_N;l_`) APPLICANT*$ BURDE'N o_!= Peooi_=

In a habeas corpus proceeding the burden of projof is always on the
applicant Ex_ parte Rai_ns, 555 S.W.2d 478 (Tex. Crim. App. 1977)- lt is thus
applicants burden to “prove by a preponderance of the evidence" that the
alleged errors "‘contribluted to his conviction or punishment.” Ex parte
Williams, 65 S_`.W3d 656", 658 (Tex. Crim. App. zooi). In order to prevail, an
applicant must present facts that, if true, would entitle him to the relief
requested., Ex parte Maldonado, 688 S.W.2d 1__14, _11'6' (Tex. Crim. App. 1985).
Relief may be denied if the-applicant states only conclusions and not specific
facts.. Ex parte McPhe'r`so`n, 32 S.W.3d 860, 861 (Tex. Crim. App. zoo_o). In
addition, an applicants sworn allegations alone are insuliicient proof of his

claims. Ex parte Empey, 7`5`7 S.W.2d "7'7?`1, "7"7'5 (Tex.- Ci"ii‘n'. App. 1988).

48

To prevail on a claim of ineffective assistance of counsel, an applicant must
meet the two-prong test articulated in St'rickla'nd v. Wash'ir`zg'ton, 466 U.S. 668
(1984_). Spe‘cifi'cally, he must show: (1) deficient performance in that his
counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norrns-,_ and (_2) prejudice or _a_ reasonable
probabilitythat, but for counsel’s deficient performance the result of the
proceeding would have been different.. Id. at 687-88, 6_94. "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Id.\ “[W}hen a person challenges the validity of`a plea entered
upon the advice of counsel, contending that his counsel was ineffective the
voluntariness of the plea depends on (1) whether counsel’s advice was within
the range of competence demanded of attorneys in criminal cases and if not,.
(2_) whether there is a reasonable probability that, but for counsels errors, he
would not have pleaded guilty to the charged offense and would have insisted
on going to trial.” Ex parte Harrington_-, 310 S.W.3d 45-2_, 458 (Tex. Crim. App.

20"10) (internal quotation marks omitted).

49

I. GROUND ONE: Trial counsel was not ineffective for-advising- applicant that his
sentences _i_n each case could be stacked even though the offenses arose during
the same criminal episode
In his first ground, applicant argues that his plea w"as involuntarily entered
due to the erroneous advice of his counsel that his sentences could be stacked
even though the offenses were committed during the same criminal episode
(Writ.Appl. 6-7). Article 42.08 of the Code of Crurunal Procedure provides in
pertinent part:.
When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction Except as provided by
Secti'ons (b) and (c) of this article, in the discretion of the court, the
judgment in the second and subsequent convictions may either be that
the,sentence imposed or suspended shall begin when the judgment and
the sentence imposed or suspended in the preceding conviction has
ceased to operate, or that the.sentence imposed or suspended shall run
concurrently with the other case or cases, and sentence and execution
shall bje- accordingly . .. .
Tex. Code Crim. Proc. Ann. art. 42.0.8.(a) (West 2014). However, 1""[w]hen the
accused is found guilty of more than one offense arising out of the same
criminal episode prosecuted in a single criminal action-,- a sentence for each
offense for which he has been found guilty shall be pronounced Secti'on

3.03(a) only prevents cumulation of sentences for offenses arising out of the

same criminal episode when they are prosecuted in a single trial or plea

50

proceeding Ex parte Pharr, 897 S.W.2d '79'5, 796 (Tex. Crim. App. 1995). As
nothing prevented the State from prosecuting these cases in separate
proce'edings‘, trial counsel’s advice regarding the cumulation of applicants
sentences was not erroneous See id. Therefor`e, as applicant has failed to
prove, by a preponderance of evidence, that his trial counsel’s advice fell
outside the range of competence demanded of attorneys in criminal cases,. his
first ground for relief should be denied.

II. GROUND TWO: Applicant has failed to prove that his counsel’s
performance was:deficient for any of the reasons he has alleged..

In his second ground, appellant complains that his counsel was ineffective
for failing to obtain an investigator, failing to thoroughly investigate the fac-ts
of his case before advising him to plead guilty, failing to determine that the
Statels evidence did not include his fingerprints or DNA o_n the drugs, and
failing to object to the group plea session (Writ A~pp_l_;. '8-:_9). First¢ appli_C.§_I.l.t’S
trial counsel did in fact hire an investigator to determine the extent of the
victim’s impairment from his injuries as it related to the issue of serious
bodily injury (Attach. 1-2~). Further, applicant fails to show, from facts
contained in the record, what a more thorough investigation would have

shown or how such evidence would have affected his decision to plead guilty

6

51

(Writ Appl. 8'9).. See Mooney v. State, 81"7 S.W.2d 693-, 697 (Tex. Crim. App.
1991) (n'o ineffectiveness where appellant failed to establish What, “if anything
counsel could have learned from a more thorough investigation.”). Lastly-,
applicant fails to provide any authority for the proposition that his group plea
session was somehow improper See Ex` parte Wilsor`i, 716 S.W.2d 953, 956
(Tex. Crim. App. 198.6) (presumption of regularity with respect to guilty pleas
under article 1.15 of the Co;de. of Criminal Procedure); Ship'ley v. State, 828
S_._W.__z.d 475, .480 (Tex. App.-El Paso 1992., pet. ref’d) (citing McMiIlan v. State,
727 S.W.2d 582, 583-84 (”l`ex. Crim.._App. 1987) (‘“[A]n accused who is apprised
of such rights',' even when given lin a group plea 'session, shall be found -to
adequately understand those rights.’~’)., Acc'ordin`gly, appellant has failed to
ca__rry his burden under Stric_kland’s first prong to show that his trial counsel’s
performance was deficient, and his second ground for relief should be denied.

IiI. GROUND THR-EE: By failing to object at h_i_s. plea hearing applicant has
forfeited his challenge to the group plea session.

In his third ground for relief,` applicant argues that the .Cou`rt abused its
discretion in conducting a group plea admonishment with applicant and
another defendant simultaneously (Writ Appl. io). As appellant did not raise

an objection to the procedure during the hearing -or? raise the issue on.appeal,

52

he has forfeited any alleged error for review, and his third ground for relief
should be denied. See Ex parte Bagley, l509 S.W.2d 332, 333-334 (Tex. Crim-
vAPP- 1974)

PRAYER _

WHEREFORE-, PREMISE_-S CON.S.I‘DER;ED, the State prays that the Court
find that there are no controverted~,- previously unresolved facts material to
the legality of applicants confinement-; that there is no necessity for a fact-‘
finding hearing as there is ample evidence in the record for the Court to rule
on the relief soughti; and that the Court enter Findings of Fact and
Conclusions of Law, recommend denial of the relief so`ught-,- and send
applicant hence without delay

Respectfully submitted-,
D. MA'I'I’ BINGHAM

Criminal District Attorne`y
Smith County, Toan

AAR_oN §§EDIKER \

Assistan_t Cri_r_nin_al District A_t_torney
SBOT # a404669z

100 North B_roadway, 4th Floor
Tyler, Texas 7570;.

Phone_:_ (903) 590-1720

Fax=' (903)5910-1719

.8

53

EXHIBIT

21

wild

` " ' F|LED
~ l_Ol$§ FR’OGERS
le‘_`~.-`!':i-?iff'i“ CLERK
cAU_si~; No. 007-0448-11

Zfllll NUV |D Pl‘l lZ= 311

s'rArE or TEXAS S. C