Agbeze, Ex Parte James ( 2015 )

PD-1597-15
NO. _____________ PD
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
EX PARTE
JAMES AGBEZE
Petitioner,
_________________________________________________________
Petition in Cause No. 1288928 from the
TH
180 District Court of Harris County, Texas and
the Court of Appeals for the
14TH District of Texas
_________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
December 10, 2015 ATTORNEY FOR PETITIONER
IDENTITIES OF PARTIES AND COUNSEL
PETITIONER: JAMES AGBEZE
PRESIDING JUDGE: HON. CATHERINE EVANS
180th District Court
Harris County Criminal Justice Center
1201 Franklin, 18th Floor
Houston, Texas 77301
(713) 755-6344
HABEAS COUNSEL FOR STATE: MR. STAN CLARK
Assistant District Attorney
Harris Co. District Attorney’s Office
1201 Franklin, Ste 400
Houston, Texas 77002
(713) 755-5800
HABEAS COUNSEL: MR. TOM ABBATE
440 Louisiana, Ste 200
Houston, Texas 77002
(713)-223-0404
2
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2
INDEX OF AUTHORITIES........................................................................................................... 4
STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6
STATEMENT OF THE CASE....................................................................................................... 6
STATEMENT OF PROCEDURAL HISTORY ............................................................................. 8
QUESTION PRESENTED FOR REVIEW ................................................................................... 9
REASON FOR REVIEW ............................................................................................................... 9
The Law Regarding Appellate Review of 11.072 Habeas Generally.............................................. 9
Analysis ......................................................................................................................................... 10
PRAYER FOR RELIEF ............................................................................................................... 12
CERTIFICATE OF SERVICE ..................................................................................................... 13
CERTIFICATE OF COMPLIANCE ............................................................................................ 13
APPENDIX ................................................................................................................................... 14
3
INDEX OF AUTHORITIES
Cases
Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007) .......................................................... 9
Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)............................................................ 10
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) ....................................................... 10
Ex parte Scott, 190 S.W.3d 672 (Tex. Crim. App. 2006) ............................................................... 9
Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ............................................................... 9
Statutes
Tex. Code Crim. Proc. art. 11.072 .................................................................................................. 9
4
NO. _____________ PD
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
EX PARTE
JAMES AGBEZE
Petitioner,
_________________________________________________________
Petition in Cause No. 1288928 from the
TH
180 District Court of Harris County, Texas and
the Court of Appeals for the
14TH District of Texas
__________________________________________________________
PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS OF TEXAS
James Agbeze, petitions the Court to review the judgment affirming
The denial of his Application for Writ of Habeas Corpus
Pursuant to Article 11.072 of the Texas Code of Criminal Procedure
5
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would assist to resolve whether the evidence was legally
sufficient to support the conviction obtained against the Petitioner in this case.
STATEMENT OF THE CASE
During the investigation of the conviction at issue, Appellant was approached
by one of the investigators in this case, who solicited him for a bribe. Appellant was
informed that if the requested funds were provided, a report would be generated
allowing him to avoid prosecution for the crime at issue in this case. Appellant
refused to provide the bribe, and was then informed by the investigator that he would
face prison time for failing to do so.
Subsequently, Appellant was indicted for submitting a series of fraudulent
Medicaid reimbursement claims. The jury convicted Appellant of theft of property
by a government contractor with an aggregated value of $1,500 or more, but less
than $20,000, assessed punishment at seven years community supervision, and
imposed a $10,000 fine. The trial court ordered Appellant to spend 90 days in jail as
a condition of community supervision and to pay $18,169.45 in restitution.
On the appeal of the trial, Appellant argued that (1) there was insufficient
evidence to prove that he intentionally or knowingly committed theft or that
individual over-charges were part of a larger criminal scheme to allow the theft
amounts to be aggregated and tried as one offense and that (2) the trial court abused
6
its discretion in ordering him to pay $18, 169.45 in restitution. The Court of Appeals
denied Applicant’s grounds for relief and affirmed the judgment of the trial court.
Applicant then filed a Petition for Discretionary Review with the Texas Court of
Criminal Appeals, but was denied. Applicant’s subsequent Motion for Rehearing
was also denied.
During the pendency of the above appeals, the investigator in question was
indicted for bribery. The investigator entered a plea of guilty to the charge and was
convicted under the terms of a plea bargain.
Subsequently, Appellant filed the instant Application for Writ of Habeas
Corpus pursuant to Article 11.072 alleging that he was actually innocent of the crime
and that the state had committed a Brady violation by failing to disclose the
corruption of its investigator to trial counsel. After the submission of affidavits, the
habeas court entered findings of fact and conclusions of law dismissing Appellant’s
allegations and ordering that all requested relief be denied.
7
STATEMENT OF PROCEDURAL HISTORY
This is an appeal from the Habeas Court’s DENIAL OF RELIEF and
FINDINGS OF FACT AND CONCLUSIONS OF LAW in Appellant’s
APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO ARTICLE
11.072. Appellant filed a NOTICE OF APPEAL on MAY 7, 2015.
The court of appeals rendered its decision affirming Petitioner’s conviction
on November 5, 2015. Petitioner did not file a motion for rehearing, and the decision
of the court of appeals became its final ruling on November 20, 2015. This petition
was then filed with the clerk of the court of appeals within 31 days after such final
ruling.
8
QUESTION PRESENTED FOR REVIEW
Did the Trial Court abused its discretion in denying Appellant’s
requested relief?
REASON FOR REVIEW
The Law Regarding Appellate Review of 11.072 Habeas Generally
"Habeas corpus is an extraordinary remedy and is available only when there
is no other adequate remedy at law." Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex.
Crim. App. 2007). Article 11.072 establishes the procedures for an applicant in
Appellant's situation to seek habeas corpus relief "from an order or a judgment of
conviction ordering community supervision." Tex. Code Crim. Proc. art. 11.072, §
1. The statute expressly provides that writ relief is not available "if the applicant
could obtain the requested relief by means of an appeal under Article 44.02 and Rule
25.2, Texas Rules of Appellate Procedure." Id. § 3(a).
An applicant for habeas corpus relief must prove his claim by a preponderance
of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex
parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing
the trial court's order denying habeas corpus relief, the facts are viewed in a light
most favorable to the trial court's ruling. See Kniatt, 206 S.W.3d at 664. The
reviewing court will uphold the trial court's ruling absent an abuse of discretion. See
id.
9
Almost total deference is afforded to the trial court's determination of the
historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819
(Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis,
219 S.W.3d 335 (Tex. Crim. App. 2007). Likewise, the reviewing court will defer
to the trial court's application of the law to the facts, if the resolution of the ultimate
question turns on an evaluation of credibility and demeanor. See id.
Analysis
The habeas court abused its discretion in denying Appellant’s requested relief.
Appellant provided evidence sufficient to show that he was entitled to a new trial
based on theories of actual innocence and a Brady violation. Further, habeas counsel
reviewed all of the evidence provided by the state, and pointed out to the court that
the reports generated during the investigation of Appellant failed to detail, or even
mention, Nnadi’s involvement.
The habeas court, however, found the affidavit of Jesse Mack to be credible
despite the inconsistencies contained therein. Mack initially stated that Nnadi was
involved solely as an “observer since there was an investigative auditor assigned and
already working on the case.” Therefore, he was not listed as a participant in the
interview. Further, Mack stated that Nnadi did not have input as either an auditor or
investigator at any time.
10
However, Mack also stated that he and Nnadi met with Appellant at least twice
during the pendency of the investigation. Further, Mack stated that Nnadi did
participate in preparing for the trial of Appellant. Therefore, Nnadi’s involvement
was more than solely as an observer.
Finally, the criminal complaint and corresponding affidavit show that at least
the Federal Bureau of Investigations was aware of Nnadi’s corruption as far back as
2007, although it appears to have decided not to do anything about the matter until
2014.
Therefore, Appellant proved his allegations by a preponderance of the
evidence and the habeas court abused its discretion in denying the requested relief.
11
PRAYER FOR RELIEF
ACCORDINGLY, this Court should GRANT this PETITION FOR
DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the
question of whether the evidence against the Petitioner was legally sufficient to
support his conviction.
Petitioner further prays for all relief to which he may be entitled.
Respectfully submitted,
______________________________
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
ATTORNEY FOR PETITIONER
12
CERTIFICATE OF SERVICE
This is to certify that on the day of DECEMBER 8, 2015 a true and correct
copy of the above and foregoing Petition for Discretionary Review was served on
the Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston,
Texas 77002, by FAX (713.755.5809).
______________________________
TOM ABBATE
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 1534 words contained in this document.
______________________________
TOM ABBATE
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APPENDIX
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Envelope Details
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Envelope 8141588
Case Information
Location Court Of Criminal Appeals
Date Filed 12/08/2015 03:12:22 PM
Case Number
Case Description
Assigned to Judge
Attorney Thomas Abbate
Firm Name Tom Abbate Attorney at Law
Filed By Thomas Abbate
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Mastercard 7944
Transaction Amount $0.00
Transaction Response
Transaction ID 13265551
Order # 008141588-0
Petition for Discretionary Review
Filing Type EFile
Filing Code Petition for Discretionary Review
Filing Description
Reference Number
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
12/10/2015 This petition is untimely; please resubmit your petition with a motion for
Other
05:38:13 PM extension of time to file.
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Envelope Details
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Lead Document PDR.pdf [Original]
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