WR-83,575-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/16/2015 3:44:28 PM
Accepted 7/17/2015 8:11:54 AM
WR-83,575-01 ABEL ACOSTA
CLERK
W401-80045-08-HC
RECEIVED
EX PARTE § IN THE COURT
COURT OF APPEALS
OF CRIMINAL
§ 7/17/2015
ABEL ACOSTA, CLERK
§ CRIMINAL APPEALS
§
CHARLES ATTERBURY § OF TEXAS
OBJECTIONS TO THE TRIAL COURT’S ORDER ON
ATTERBURY’S APPLICATION FOR A WRIT OF HABEAS CORPUS
In Atterbury’s Application for a Writ of Habeas Corpus, he argued that (1) his
guilty pleas were not entered knowingly, voluntarily, or intelligently, because his
counsel failed to inform him he had a defense to the charges; (2) his counsel was
ineffective in failing to investigate and learn as much; and (3) his counsel was
ineffective in failing to file a motion to recuse the biased judge who presided over
the State’s motion to revoke Atterbury’s probation. (Memo at 2-3).
In recommending to this Court that it deny Atterbury’s application, the
district court found (1 & 2) counsel did inform Atterbury that the State had a “weak
case”; and (3) there is no evidence the judge was in fact biased. (Order at 2-4). But
characterizing the State’s case as weak is not the same as alerting Atterbury he had
a total defense to all charges. And the record clearly reflects the trial court’s biases.
Accordingly, Atterbury objects to the district court’s order.
I. A “weak case” is not “no case”
a. Counsel’s advice was incorrect
As to Atterbury’s claims that his guilty pleas were not entered knowingly,
voluntarily, or intelligently because his counsel failed to inform him he had a
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defense to the charges, and that his counsel was ineffective in failing to investigate
and learn as much, the district court initially noted, bizarrely, that “Applicant has
not specified what his defense to the allegations was.” (Order at 2). But the
remainder of the court’s order very clearly indicates it understood the defense: that
the State could not use Atterbury’s confession, alone, to convict him. See (Order at
1-3).
Indeed, that is the failure Atterbury faulted. The court dismissed it, however,
because “[c]ounsel did advise Applicant that the State’s case was weak.” (Order at
2). Advising that the State’s case is weak is entirely different from advising that the
State’s case is hopeless, though. And that was just the case here. As noted in
Atterbury’s original memorandum, the only evidence of any offense came from
Atterbury’s own statement. (Memo at 10). And an extra-judicial confession is
insufficient to support a conviction absent corroboration. See, e.g., Chambers v.
State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993); Self v. State, 513 S.W.2d 832, 837
(Tex. Crim. App. 1974). The district court notes that counsel believed evidence of
the complainant’s “bed wetting and sexual behavior” could have been “used to
corroborate Applicant’s confession.” (Order at 1). But under the corpus delicti rule,
there must be “some evidence [ ] outside of the extra-judicial confession which,
considered alone or in connection with the confession, shows that the crime actually
occurred.” Salazar v. State, 86 S.W.3d 640, 645 (Tex.Crim.App.2002) (emphasis
added). And the complainant’s bed-wetting and sexual behavior is hardly evidence
of as much; it could be evidence of myriad things, or nothing. Counsel’s advice that
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the State’s case was “weak,” then, entirely failed to convey the reality: the State’s
case was non-existent.
For the same reason, the district court’s secondary conclusion—that
Atterbury also failed to prove “by a preponderance of the evidence that he would not
have pleaded guilty but for counsel’s advice”—is meritless. (Order at 2). As to that
conclusion, the district court noted Atterbury insisted on pleading guilty despite
counsel’s advice that the State’s case was weak. (Order at 2-3). But, again, that is
just the point—Atterbury insisted upon as much because counsel informed him only
that the State’s case was weak, not that it was non-existent. Accordingly, because
the entirety of the district court’s conclusions as to Atterbury’s first and second
grounds are without merit, for all those reasons urged in his original application
and memo Atterbury respectfully requests this Court to reject the district court’s
recommendation and to grant him relief.
b. Even if counsel’s advice was correct, whether he in fact
advised as much can only be determined after a hearing
Even if this Court were to find that counsel’s advice were close enough to the
truth, though, it should not, as the district court did, reject Atterbury’s application
based on counsel’s affidavit alone. For, whether counsel in fact informed Atterbury
that the State had a weak case is a credibility determination, presenting an “in
court” issue for the finder of fact. In a case that turns on issues of credibility, it is
inappropriate to resolve controverted facts without an evidentiary hearing where
witnesses are subject to cross-examination.
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This Court has recognized this before. In Ex parte Byars, 176 S.W.3d 841
(Tex. Crim. App. 2005), Presiding Judge Keller noted that the most effective way of
determining the reliability of witness testimony is through the “crucible of cross-
examination.” Id. at 842 (concurring opinion). Similarly, Judge Cochran explained
for the Court in Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004):
Affidavits . . . are widely and appropriately used in criminal and civil
proceedings to determine if there are material disputed facts and to
define exactly which facts are disputed. They are not always well-
suited for resolving disputed facts.
Id. at 210 (footnotes omitted).
Accordingly, in this case, the district court should not have decided that
Atterbury’s attorney’s affidavit resolved all the factual issues. Nor should the
court’s decision have been based merely on the fact that counsel was “well known to
the court.” See (Order at 1). This is an inappropriate way to make a credibility
determination. Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999), is
particularly instructive on this issue. In Gallego, the United States Court of Appeals
for the Eleventh Circuit stated:
It is perfectly legitimate for the district court to find, based on all the
evidence in the record, that a defendant’s testimony about his
participation in a drug scheme is not credible. The magistrate judge
here, however, based the decision on the fact that the defendant’s
allegations were unsubstantiated and incorrectly found as a matter of
law that defendant could not carry his burden without presenting some
evidence in addition to his own word, which is contrary to that of
counsel’s. The magistrate says nothing about the internal consistency
of the defendant’s testimony, or his candor or demeanor on the stand.
Indeed, the magistrate does not even state simply why the defendant’s
lawyer is the more credible witness in this case. There is nothing in the
report to indicate the magistrate weighed defendant’s credibility.
Compare United States v. Camacho, 49 F.3d 349 (11th Cir. 1994) (court
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made specific findings of fact after an evidentiary hearing regarding
defendant’s credibility), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810,
131 L.Ed.2d 735 (1995). The fact that defendant’s testimony is
uncorroborated is not enough standing alone to support a credibility
finding. Counsel’s testimony was also unsubstantiated by other
evidence.
While we appreciate the concerns enunciated in Underwood, we cannot
adopt a per se "credit counsel in case of conflict rule," which allows that
in any case where the issue comes down to the "bare bones testimony"
of the defendant against the contradictory testimony of counsel,
defendant is going to lose every time. We therefore remand for a new
evidentiary hearing. Because of the intervening death of District Judge
C. Clyde Atkins, the case will necessarily come before a different
district judge. We suggest that in view of the nature of the case, if the
matter is referred to a magistrate, it be sent to a different magistrate
judge.
Id. at 1198-99.
Valid judgments about credibility cannot be made from a review of a paper
record alone. Thus, even if counsel’s advice was accurate, the district court should
have ordered a live evidentiary hearing to resolve whether he in fact advised
Atterbury of as much. See, e.g., Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996)
(petitioner entitled to discovery when there is factual dispute which, if resolved in
petitioner’s favor, would entitle petitioner to relief, and the State has not afforded
petitioner a full and fair evidentiary hearing). Accordingly, on this basis, too,
Atterbury objects to the district court’s order and requests this Court to reject its
recommendation.
II. The record clearly reflects the trial court’s biases.
As to Atterbury’s third claim of ineffective assistance of counsel, the district
court concluded there is no evidence the judge was in fact biased. (Order at 4). As to
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this ground, Atterbury relies on his arguments in his original memorandum to show
that his counsel was ineffective in failing to file a motion to recuse the biased judge
who presided over the State’s motion to revoke Atterbury’s probation. Thus, as to
this ground, as well, Atterbury objects to the district court’s order and requests this
Court to reject its recommendation.
III. Conclusion
For these reasons, and all those urged in Atterbury’s original memorandum
in support of his application for a writ of habeas corpus, and in his reply to the
State’s response to that memorandum, Atterbury objects to the district court’s
order, respectfully requests this Court to reject the district court’s recommendation,
and to find that that his convictions for aggravated sexual assault of a child and
indecency with a child illegally confine and restrain him of his liberty. See TEX. PEN.
CODE §§ 21.11 & 22.021. His convictions were had only upon an involuntary plea
and the ineffective assistance of his counsel. This Court should thus issue the Writ
of Habeas Corpus,, set aside his convictions, and remand the case for a new trial.
See, e.g., Strickland v. Washington, 466 U.S. 668, 694, (1984).
Respectfully submitted,
/s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com
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/s/ Brett Ordiway
BRETT ORDIWAY
State Bar No. 24079086
bordiway@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)
Counsel for Applicant
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Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of the foregoing
Objections to the Trial Court’s Order on Atterbury’s Application for a Writ of
Habeas Corpus was mailed to the Collin County District Attorney’s Office and the
401st Judicial District Court of Collin County on July 16, 2015.
/s/ Bruce Anton
Bruce Anton
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