Webb, Michael Renard ( 2015 )

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January 27, 2015
Tyler, Te.
Re: Exparte Ml'chae] Regard Wel)b, Case No’s. 007-0447-l l, 007-0048-11, 007-0449-l l & 007-
0450_11 un the 7"‘ Judi¢iai Dismcr own Ofsmirh Coumy, 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 l-labeas Corpus Applications, to be filed among the
papers in the above-styled and numbered causes.
Please notify Applicant at his address listed below of the date of filing and disposition of these
proceedings
Thank you t``or your kind attention to this matter.
Sincerely
3
6
/
R‘ECE|VE;) lN
GOuRToFcRiMiNAL APPEALS
FEB 04 2015
/ ,
’. /’/
h ' ID#01784539
/m.
810 FM 2821 Abel ACOS?§, Clerk
Huntsville, Texas 77349
Enclosures
CC:
’$* Abel Acosta, Clerk
Court of``Criminal Appeals
P.O. Box 12308
Austin, Texas 787l l
*Z' Aaron S. Rediker
Asst. District Attorney
Smith County, Texas
lOO North Broadway, 4"] Floor
Tyler, Texas 75702
Fi|e
CASE NUMBER: 007-0450-11-A © © PY
EX PARTE § IN THE DISTRICT COURT
MICHAEL RENARD WEBB ' § 7TH JUDICIAL DISTRICT
APPLICANT, TDCJ-ClD#01784539 § SMITH COUNTY, TEXAS
APPL]CANT 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 007-0450- ll, filed in the 7th District Court of
Smith County, Texas, for the offense of possession/manufacture with intent to deliver a
l
controlled substance, namely cocaine, >lg, DFZ,‘ a second degree felony (enhanced). On March
19, 2012, Applicant, with his two trial attomeys, Mr. Greg Waldron and Ms. Tonda Curry,
entered into a non-negotiated plea of guilty in a single hearing2 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-ClD) for thirty (30) years. A direct appeal was taken to the Twelf``th 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, 2013.3 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, 2014.4
Respondent made a separate answer to the instant state Writ application on October l6, 2014.5
Then, it subsequently made a “consolidated” supplemental response to the instant writ
' This case was as being enhanced with one enhancement paragraph and drug free zone allegation
2 Applicant’s related unadjudicated cases; case number: 007-0448-11 for manufacture/intent to deliver a controlled
substance, namely, cocaine >4g <200g, a second degree felony (enhanced) and in case number: 007-0449-11 for
manufacture/intent to deliver a controlled substance, namely cocaine 710 F.3d 573 (5th Cir. 2013),
holding in relevant portion that, “...Coleman was no longer valid and the mailbox rule now applies to Texas
prisoners’ state habeas filings The dismissal of Richards’ petition was reversed and the case remanded for further
proceedings.” Federal and State courts must now find that a prisoner’s state writ application is considered filed on
the date they sign it and place it in the prison mail box for authorities to mail on their behalf to be filed.
5 For purposes of this proceeding, Applicant will refer to the Respondent’s Answer as “Answer,” followed by the
page referenced
application on December 08, 2014, which is in violation of the Court of Criminal Appeals Local
Rules and the Texas Rules of Appellate Procedure in that both sets of rules require that separate,
not consolidated filings must be made for each cause number separately. Wherefore, based upon
the violation of these rules by Respondent, Applicant would respectfully request that the
document filed in the district Court entitled: Cause Number 007-0448-1 l-A, 007-0449-1 l-A &
007-0450-1 l-A, Ex parte Michael Renard Webb, filed in the 7th Judicial District Court of Smith
County, Texas, accordingly be stricken from the habeas record and not considered Whatsoever
for any purposes This proceeding followed
II.
STATEMENT OF FACTS
Applicant adopts the background facts articulated by the TWelfth Court of Appeals in its
consolidated unpublished memorandum opinion entered on June 25, 2013, at the time it affirmed
all of Applicant’s judgment and sentences before it, as follows:
[Applicant] was charged by indictment with the offense of aggravated assault on a public
servant and three instances of manufacture or delivery of a controlled substance. On
February 29, 2012, a bench trial began on the indicted offense of aggravated assault on a
public servant. Ultimately, the trial court found [Applicant] guilty of the offense and
made an affirmative deadly Weapon finding. Sentencing was postponed until after a
presentence report was prepared On March 19, 2012, [Applicant] pleaded guilty to the
remaining offenses Each offense was enhanced under the habitual offender statute, and
two of the cases contained drug-free zone enhancements [Applicant] pleaded true to all
enhancements in each case. The trial court pronounced [Applicants] sentence in each case
on April 20, 2012. [Applicant] Was sentenced to various terms of imprisonment in
addition to being assessed court costs and in some cases, restitution The trial court
ordered [Applicant] to pay S55,432.l8 in restitution and taxable court costs in the
aggravated assault case. ln one of the drug cases, the trial court ordered [Applicant] to
pay $515.00 in restitution in addition to taxable court costs In another of the drug cases
(a drug-free zone case), the trial court ordered [Applicant] to pay $515.00 in restitution,
but did not order payment of restitution in the other drug-free Zone case. The certified bill
of costs Was not in the record when the judgments of conviction were signed After
[Applicant] filed his brief, the district clerk supplemented the record in each case to
include a bill of costs. Id.6
III.
APPLICANT’S ALLEGATIONS
In the instant application seeking habeas corpus relief, Applicant submits three separate
grounds for relief as follows:
l. Applicant complains that his guilty plea was unknowingly, unintelligently and
therefore, involuntarily entered based upon the erroneous advice of'trial counsel(s)
in violation of the Fifth, Sixth and Fourteenth Amendments to the United States
constitution;
2. Applicant complains that he was denied the effective assistance of counsel at trial in
violation of the Sixth Amendment to the United States Constitution;
3. Applicant complains the trial court erred and abused its discretion by accepting his
guilty plea in this case, as well as another offender’s guilty plea in an unrelated case
at the same time, confusing him and contributing to his plea of guilt being entered
involuntarily. Id.
See State Writ Appl. 6-10.
IV.
ARGUMENT & AUTHORITIES
A. Ground One: Involuntary Plea
ln ground one the Applicant herein complains that his guilty plea was entered
unintelligently, unknowingly and involuntarily based upon the erroneous advice of counsel.
6 See Consolidated Memorandum Opinion for Webb v. State, Case Nos. 007-0447-1 l, 007-0448-11, 007-0449-ll &
007-0450-11, at 1-2;12-12-00175-CR, 12-12-00176-CR, 12-12-00177-CR & 12-12-00178-CR.
4
Specifically, Applicant submits trial counsel(s) were ineffective and provided him with
erroneous advice, which he premised his decision to enter a guilty plea, prejudicing the defense.
ln his instant application, Applicant has averred that his trial attorneys advised him after being
convicted of Aggravated Assault with a deadly weapon upon a Public Servant in a companion
case 7 and was sentenced to life imprisonment in TDCJ-CID, if he went to trial on this case (and
his two other pending drug possession cases) stemming from the same criminal episode the State
would ask that the trial court cumulate or “stack” whatever sentences he might receive in this
case and the other two pending drug cases With his life sentence assessed in the aggravated
assault on a public servant with a deadly weapon.
Standard of Review
lneffective assistance of counsel claims are reviewed for federal constitutional error
under the two- prong standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,80
L.Ed.2d 674 (1984). See Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L.Ed.Zd 638 (1987).
To satisfy this standard a criminal defendant must establish: First that counsel’s performance was
deficient This requires showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment Second, the
defendant must show that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
Whose result is reliable. Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversarial process that renders
the result unreliable Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. “Judicial
scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065.
Every effort must be made to eliminate “the distorting effect of hindsight.” Id. Courts ‘must
7 See State v. Webb, Case No. 007-0447-1 l, April 20, 2012.
5
indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance” and a defendant must overcome the presumption that the challenged
action ‘might be considered sound strategy.” Id. (quoting Ml``chel v. Louz``siana, 350 U.S. 91, 101,
76 S. Ct. 158, 164, 100 LEd. 83 (1955)). Secondly, Petitioner must demonstrate prejudice. The
“defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding Would have been different.” A reasonable probability is a
probability sufficient to undermine the confidence in the outcome.” Id. 466 U.S. at 694, 104
S. Ct. at 2068;``L10ya' v. Whitley, 977 F.2d 149, 159 (5th Cir. 1992). Petitioner’s claims are firmly
grounded in the record and prejudice is not merely alleged, but affirmatively shown by a
preponderance of the evidence. Here, Petitioner alleges that his trial counsel Was deficient for
numerous acts and/or omissions, which contributed to Petitioner not receiving a fundamentally
fair trial and that, but for his unprofessional representation, a reasonable probability exists that
the outcome of the proceedings would have been different
As Justice Sutherland explained in Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed.
158 (1932), the right to the assistance of counsel is guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 10 of the Texas
Constitution. This right to the assistance of counsel has long been understood to include a “right
to the effective assistance_of counsel.” See McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90
S. Ct. 1441, 1449, 25 L.Ed2d 763 (1970). The integrity of our criminal justice system and the
fairness of the adversary criminal process is assured only an accused is represented by an
effective attorney. See United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667, 66
L.Ed2d 564(1981). Absent the effective assistance of counsel “a serious risk of injustice infects
the trial itself.” Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S. Ct. 1708, 1715, 64 L.Ed.Zd 333
(1980). A defendant is constitutionally entitled to have counsel acting in the role of an advocate.
Ana'ers v. Caliform``a, 386 U.S. 738, 743, 87 S. Ct. 1396, 1399, 18 L. Ed. 2d 493 (1967).
Normally, the reviewing court looks to the totality of the representation and the particular
circumstances of the case in evaluating the reasonableness of an attorney’s conduct. See Ex parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). The review conducted of defense
counsel’s representation is “highly deferential and presumes that counsel’s actions fell within a
Wide range of reasonable assistance.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)
(citing T ong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). It is the defendant’s burden
to overcome this presumption by proving his ineffective assistance of counsel claim by a
preponderance of the evidence McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App.
1992); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); also see, United States v.
Cronic, supra at 658, 104 S. Ct. at 2046 (the burden rests on the accused to demonstrate a
constitutional violation).
Burden of Proof
In a habeas corpus proceeding, the burden of proof is always on the applicant Ex parte
Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). lt is thus applicant's burden to “prove by a
preponderance of the evidence" that the alleged errors “contributed to his conviction or
punishment” Ex parte Willl``ams, 65 S.W-3d 656, 658 (Tex. Crim. App. 2001). 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 114, 116 (Tex. Crim. App. 1985). Relief may be denied if the
applicant states only conclusions, and not specific facts. Ex parte McPherson, 32 S.W.3d 860,
861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are insufficient
proof ofhis claims Exparte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).
State’s Proced_gral Default
The record below is procedurally devoid of trial counsel, Mark Waldron and Tonda
Curry’s affidavits responding to the Applicant’s complaints of his plea of guilty being entered
unknowingly, unintelligently and involuntary based upon the erroneous advice of counsel, as
well as issues of ineffective assistance of counsel at trial and are therefore not properly before
this Court as a Court of original jurisdiction and based upon the facts and records before this
Court, it is readily apparent that the Respondent included the affidavits in question with the
“State’s Supplemental Answer,” to the instant application seeking habeas corpus relief by
doing so in a “consolidated fashion,” versus each singularly as required by the rules of the
Court, by presenting the same together in said pleading, instead of separately as required by
the instructions contained with the article 11.07 habeas corpus application, instruction number
four (4), as well as the Texas Rules of Appellate Procedure and Texas Administrative Code.
Therefore, when considering Applicant’s instant application and only the original answer filed
by the State, Applicant’s allegations have not been properly met and rebutted by same, and
since the State did file separate original answers to each separate writ application, only the
substance contained therein should be considered by the Court in determining whether or not to
grant or deny relief. (emphasis added).8
Applicant suggests that the Court of Criminal appeals remand this case to the district
court with instructions on how it should properly file any supplemental answers to its original
one, separately in each case according to the rules of the Court of criminal appeals, Texas Rules
of Appellate procedure and Texas Administrative Code as the Applicant is required to do.9
Otherwise, in the interest of judicial economy, Applicant attaches hereto and makes a part
hereof, both the affidavits of Mr. Gregory A. Waldron and Ms Tonda Curry’s (trial counsel’s),
which they themselves filed correctly with the district clerk of Smith County as Exhibit C and
Exhibit D, respectively and will offer his arguments in dispute thereof infra.
In the instant application, Applicant claims, inter alia, that his attomey’s erroneously
informed him that if convicted of the three companion drugs case, any sentence assessed by court
or jury could be ordered to run consecutive to the life sentence he received in the first case tried
to a jury in which he was found guilty by same and assessed a life sentence.
Multiple Prosecutions
TEXAS PENAL CODE
TITLE 1. INTRODUCTORY PROVISIONS
CHAPTER 3. MULTIPLE PROSECUTIONS
s See Exhibit B, “State’s Supplemental Answer in Opposition to Application for Writ of Habeas Corpus,” at 46-53,
as transmitted and numbered by the Clerk of Smith county to the CCA.
9 At the time of his prosecution in a companion case, Case No. 007-0447-11, Applicant had four other cases
pending, one of which was dismissed by the State.
Sec. 3.01. DEFINITION. ln this chapter, "criminal episode" means the
commission of two or more offenses, regardless of whether the harm is directed
toward or inflicted upon more than one person or item of property, under the
following circumstances
(1) the offenses are committed pursuant to the same transaction or pursuant to two
or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses10
Sec. 3.03. SENTENCES FOR OFFENSES ARISING OUT OF SAME
CRIMINAL EPISODE. (a) When 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 Except as provided by Subsection (b), the sentences shall run
concurrently
(b) If`` the accused is found guilty of more than one offense arising out of the same
criminal episode, the sentences may run concurrently or consecutively if each
sentence is for a conviction of:
(1) an offense:
(A) under Section 49.07 or 49.08, regardless of whether the accused is convicted of
violations of the same section more than once or is convicted of violations of both
sections; or
(B) for which a plea agreement was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A), regardless of whether
the accused is charged with violations of the same section more than once or is
charged with violations of both sections;
(2) an offense:
(A) under Section 33.021 or an offense under Section 21.02, 21.11, 22.011, 22.021,
25.02, or 43.25 committed against a victim younger than 17 years of age at the time
10 Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 387, Sec.
1, eff. Sept. l, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. l, 1994.
10
of the commission of the offense regardless of whether the accused is convicted of
violations of the same section more than once or is convicted of violations of more
than one section; or
(B) for which a plea agreement was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A) committed against a
victim younger than 17 years of age at the time of the commission of the offense
regardless of whether the accused is charged with violations of the same section
more than once or is charged with violations of more than one section;
(3) an offense:
(A) under Section 21.15 or 43.26, regardless of whether the accused is convicted of
violations of the same section more than once or is convicted of violations of both
sections; or
(B) for which a plea agreement was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A), regardless of whether
the accused is charged with violations of the same section more than once or is
charged with violations of both sections;
(4) an offense for which the judgment in the case contains an affirmative finding
under Article 42.0197, Code of Criminal Procedure;
(5) an offense:
(A) under Section 20A.02 or 43.05, regardless of whether the accused is convicted
of violations of the same section more than once or is convicted of violations of both
sections; or
(B) for which a plea agreement was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A), regardless of whether
the accused is charged with violations of the same section more than once or is
charged with violations of both sections; or
(6) an offense:
(A) under Section 22.04(a)(l) or (2) or Section 22.04(a-l)(1) or (2) that is
punishable as a felony of the first degree, regardless of whether the accused is
convicted of violations of the same section more than once or is convicted of
violations of more than one section; or
ll
(B) for which a plea agreement was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A) and punishable as
described by that paragraph, regardless of whether the accused is charged with
violations of the same section more than once or is charged with violations of more
than one section.
(b-l) Subsection (b)(4) does not apply to a defendant whose case was transferred to
the court under Section 54.02, Family Code. ll
As none of the exceptions articulated and codified supra, (Which allows an exception to
the criminal episode restrictions regarding cumulating certain sentences regardless of whether or
not they Were part of the same criminal episode) are not applicable to the applicant as he was
never convicted of any of the statutory offenses enunciated under our Penal Code and therefore,
trial counsel was erroneous in advising Applicant that they were and Applicant strenuously avers
herein, that had he been aware that any corollary conviction or sentence resulting from his
pending indictments’ could not be cumulated with his life sentence already assessed in his first
companion case tried, he would not have pled guilty, but would have insisted on proceeding to
trial by jury in all of his remaining companion cases still pending.
Af``f``ldavit of Gregory A. Waldron, Trial Counsel (lead)
In his affidavit, attached hereto as Exhibit D, counsel states in relevant part:
Webb was found guilty by this court and sentenced to life in prison. Webb had four
other cases pending, three to which he pled and one that was dismissed Counsel had
“ Acts 1973, 63rd Leg., p. 883, ch. 399, sec. i, err Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, sec.
1.01, eff. Sept. l, 1994; Acts 1995, 74th Leg., ch. 596, Sec. l, eff. Sept. l, 1995; Acts 1997, 75th Leg., ch. 667, Sec.
2, eff. Sept. 1, 1997.
Amended by:
Acts 2005, 79th Leg., Ch. 527 (H.B. 904), Sec. l, eff. September l, 2005.
Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.47, eff. September l, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1291 (S.B. 6), Sec. 6, eff. September l, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1130 (H.B. 2086), Sec. 21, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. 24), Sec. 6.01, eff. September l, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 228 (H.B. 220), Sec. 1, eff. September 1, 2013.
12
lengthy discussions with Webb regarding how to proceed with trial and Webb agreed
with counsel’s trial strategy. Counsel also had discussions with Webb regarding the
potential of stacking of sentences after his conviction for aggravated assault lt is still
counsel’s position that Webb’s sentences could have been stacked Id. at cover.
See Exhibit C, Amdavit of trial counsel, Gregory A. Wala'ron.
lt is Applicant’s assertion herein that under these circumstances which are firmly rooted
in the record, it is apparent that each of his attomey’s12 misinformed him as to whether or not the
adjudication and sentencing in the pending three companion cases could have been cumulated
with his life sentence, not distinguishing between one or the other, but informing him all three
companion cases would be stacked by the trial court if he did not enter open pleas of guilt to
each. Applicant avers that had he known that one or all of the three pending cases could not be
cumulated as a matter of law, he would not have entered open pleas of guilt before the trial to
any of them, but would have insisted on proceeding to a trial by jury in each case.
m with UnrelatedDefendants
During the plea colloquy, Applicant Was taken unaware that the trial court planned on
taking his plea(s) with another defendant in an unrelated case at the same time. Neither of his
trial attomeys’ informed him prior to the time his plea(s) were taken. He himself had three cases
he was entering pleas of guilt to and is unaware of the exact number the unrelated defendant was
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,
'2 Applicant incorporates by reference the affidavit filed by second chair counsel, Ms. Tonda Curry, attached hereto
as Exhibit D, her sworn statement in this regard; “[C]ounsel also had discussions with Webb [Applicant] regarding
the potential of stacking of sentences after his conviction for aggravated assault lt is still counsel’s position that
{Applicant’s] sentences could have been stacked” ld. at cover. This generalization by counsel fails to distinguish
between whether or not one or all three 'of the pending indictments could have resulted in any future adjudication of
those charges and resulting sentences being cumulated as told to Applicant by same at the time he was advised by
both attorneys that he should enter open pleas of guilt.
13
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, “just 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 Tw0: 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, wherein the 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 attomey’s representation was
deficient and the following instances of ineffective assistance of counsel has been made against
them in Applicant’s writ application, which he reiterates and'discusses herein now further
below:13
(a) Counsel was ineffective for failing to obtain funds from the Court to hire a private
13 See State Writ Appl. at 8.
14
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
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.
15
(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
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 further
16
consideration
sIGNED on this the 27“' day erranuary 2015.
Respectfully submitted,
' ael R. Webb, Applicant, Pro se
T CJ-ClD#01784539
ynrie Unit
810 FM 2821
Huntsville, 'l``exas 77349
§
CERTIFICATE OF SERVICE
l, Michael R. Webb, Applicant, Pro se, TDCJ-C[D#01784539, herein certify 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, 4th Floor
Tyler, Texas 75702
siGNED on this the 27“‘ day erranuary 2015.
/A/
‘chael R. Webb, Applicant, Pro se
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EXHIBIT
A
18
CASE N0.007-0450'1 1 Cou.-rl
INCIDENT No.r’TRN: 90614241 19
THE STATE OF TEXAS § IN 'I'HE ‘7'm JUDICIAL
v. § DISTRICT COURT
MICHAEL RENARD WEBB § SMITH CGUNTY, TEXAS
sms n:) No.; rxossoiaso §
JUDGMEN'I' OF CONVICTION BY COURT-WAIVER OF JURY TRIAL
judge Presiding: HoN. KERRY L. RUSSELL Date Judgment Entered: 04/24!12
Attomey for S¢atc: 2;1::;:: oglagham‘ R‘ vance/a Attomey for Defendant: WALDRON, GREGORY A.
focnse for which Defendant Convir:ted:
MAN DEL CS PG 1 <1G DRUG FREE ZONE
Charging lr_\§_tgg;ent: §tatg;e for foeng:
lNDlCTMENT 481.|]2(b1
wm
03/03/\1
MQI_QEQM Bl§am. OH;QM _F__Lg§_in in on madme ‘
3rd Degree Fe!ony (Enhanced) Guilty N/A
BMB£§_&&_;§I§;
Defendant Made Open Plea; State Agreed to Dismiss Cause No. 007-»0446-»11 (Engaging in Organized Criminal
Acfivity).
Flca to I“ Enhanccmem Paragraph; TRUE Plea to 2”‘ Enhancement/Habima| Pa:agraph: N/A
Findings on l“ Enhancemenr Findings on 2"° Enhancement/Habitual
Paragraph: TRUE Paragmph: . N/A
Plca on jurisdictional Pamgraph: NIA
Findings on Jurisdictional Paragmph; N/A
Darc Senu=,-nce Imposed: 04/20¢'2012 Datc Sentencc to Commcncc: 04&0!2012
§';:m::;?d wm of 26 Vears / Texas Department of Criminal Justice-Institufional Divison
Tl'll$ SENII``.NCE SHALL RUN CONSECUT|VELV TO L!FE SENTENCE |N CAUSE NO. 007-0447-1£ AND CONCURRENTLY WlTH CAUSE. NO. 007»0449~11
l:l semth or coNrrNEMi;Nr susrmoro, nr;r'ENnANr nAcrn on coMMuNrrY surmvisioi~t son N/A,.
Finc: Couff éc.§w', Rcstitutiggg Restitu!ir_ig an§l;}§ tg;
_ ha AG ENCY)AGENT rm below)
Smith County Collcetions Department
$0.00 5368.00 $0.00 200 n F"guson, Soiw 213
_ Tyler. TX 75702
Sex OIfeuder Registration Requiremeois DO NOT APPLY to the Defeadant. 'I``£x. CoDE CRIM. Paoc. chapter 62
The age of the victim at the time of the offense was not provided
rim cr¢dizcd: 415 DAYS
Al| pertinent information names and moments indicated above are incorporated into the language of the judgment below by reference
This cause was called for trial in Smith County, Tcxas. The State appeared by her Distn'ct Auomey.
Counsel /Waiver l l ct ne
Det'cndant appeared in person with Counsei,
l:l Det``endam knowing§y, intelligcnriy, and voluntarily waived the right w representation by counsel in writing in open court
23
Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above The Court then
admonished Defendant as required by law. lt appeared to the Court that Defendant was mentally competent to stand trinl. made the plea freely and
voluntarily, and was aware of the consequences of this plea Thc Court received thc plea and entered it ofrccord, Having heard the evidence
submitted the Co\m found Dcfendant guilty of the oll'ense indicated above. ln the presence of Det``endant, the Court pronounced sentence against
Dcfendant. .
The Coun FiNos Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Der‘endant is GUILW o
the above oll’cnse. The Court Floms the Prescntcncc Im/cstigation, if so ordcrcd, was done according to the applicable provisions of 'l``EX. CODE
CRrM. PROC. art. 42.12 § 9.
The Court ORnF.m Dcfendant punished as indicated above The Court ORDERS Dcf'endant to pay all finds court costs, and restitution as
indicated above
Pgnishment Options (select onel
Conlinemenr in State Jail or lnstitucional Dlvision. The Court ORDERS the authorized agent of the State of 'l``exas or the Sheritf of this County
to take, safely convey. and deliver Defendant to the Director ofTDCJ-lD. The Court ORDERS Defendant to be confined for the period and in the
manner indicated above Thc Court ORDERS Dcfendant remanded to the custody of the Shen``fl`` of this county until the Sheriff can obey the directions
of this sentence, The Court ORD£RS that upon release from confinement Det``endant proceed immediately to the Smith County District Cle¢k’s
Oll'icc. Once thcrc, thc Court ORDERS Dcfendant to pay, or make arrangements to pay. any remaining unpaid fines, court costs. and restitution as
ordered by thc Court above.
n County Jail-Con Enement / Con§nement in Lieu of Payment. The Court ORDF.RS Def``endant immediately committed to the custody of the
Sheril!``ot`` Smith County, 'I``exas on the date the sentence is to commence Dcfendam shall be confined in thc Smith County Jail for the period
indicated aboven Thc Court Ortoens that upon release from coolinemem.. Defendant shall proceed immediately to the Smith County District Clerk's
Of'lice. Once there, the Court Onr)r:its Del``endant to pay, or make arrangements to pay, any remaining unpaid fines court oosts, and restitution s
ordered by the Court above
l:l Fine Only Payment. 'l``hc punishment assessed against Dcfcndant is for a ms oNL\'. Thc Court GRDERS Dcfcndant to proceed immediately to
the Oftice ofdle Smith County District Clerk. Oncc there. the Court ORoERs Defendant to pay or make immigements to pay all fines and court
costs as ordered by the Court in this cause
Execufion l Sus nxion of Sentence select one
§ 'lhc Court Onneks Defcndant’s sentence executed
[] Thc Court Onocns Defandanr’s sentence of confinement susrr.woeo. The Court Oimr.as Defendant placed on community supervision for the
adjudged period (above) so long as Del``ondanr abides by and does not violate the terms and conditions of comm\mity supervision The order setting
forth the terms and conditions of community supervision is incorporated into this judgment by reference
The Court Onoctzs that Defendant is given credit noted above on this sentence for the time spent incarcerated
E Attachment A. Order to Withdraw I~'unds in incorporated into thisjudgment and made a part hereof.
Signed and Ordered on this 2 day oprril, 2012.
£.‘4
Right Thumbprint:
24
EXHIBIT
B
19
LO SF RO(E?): ‘
D!S``lFi``lCT CL§FS}K
CAUSE NUMBER oo7-0448-111.-A
CAUSE NUMBER007-0449-11-119|-7105[5-8 PH t,. 51_,``
CAUSE NUMBER 0;07- 0450- 11 QM!TH COUNTY
Ex PARTE~ § IN TH_E 7 . . _“‘9”¢@
. . §
M;chAE_L RENARD wl-:-BB § sMxTH coUNTY,' 'r.ExAs
STATE’S SUPPLEM'EN``TAL ANSWER IN OPPOSmON
TO APPLICATlON FOR WRIT OF HABEAS CORPUS
TO TH_E- HONORABLE COURT:
Pursuant to article 11.07, section 3`` of the Te``xas Code of Cr'iminal
Procedure, the State, acting through the undersigned As's``istant Criminal
District Atto‘rr'tey, urges the-Court to find there 'is no necessity for a hearing on
any of applicant.’s alleged grounds fof relief and to i"éc<')r``ftmend relief be
denied.
STATEMENT oF"rHE CAsE
The applicant,» MICHAEL WE_BB, was ir_t_d_i‘c;t;_ed i_n cause number 007-0448-
11, oo7'-o449-n~, and 007-0450'-11_, filed i__n the 7th Dist;r_i_c_t Court of Smith
County, Tex'as, fo'r the offenses of possession of cocaine With the intent to
delivery possession of cocaine in a drug-free zone nrith intent to deliver,
possession of cocaine in a drug-Fr``ee zone with intent to deliber, respectively
On 19 Mai'c``:h 2012, applican_t, with his counsel, entered nonnegoti_a_ted pleas of
47
guilty in each ca__se i_n 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 Criminal
]ust'ice-``Institutional Diyision in Ca_u_se Nur_nber 007='0_44_8»1_1, 40 years in
Cause Number 067-0449-11, and 20 years i_n_ Cau_se Number 007-450-11,
without a fine. The TWelfth Court of Appeals af§nned applicant’s convictions
on 25 ]une 2013. Webb v. Sta_te~, Nos, ig-u-oo17565 S.W.3d 656, 658 ('l"ex. Crim. APP. 2001). _l_n order to prevail, an
applicant must present facts that, if tr``ue, would entitle him to the relief
requested Ex parte Maldonado, 688 S.W.2d 114, 116 ('I``e``x. Cri``rn. App..1985).
Relief may he denied if the applicant states only conclusions and not specific
facts_.-_ Ex porte McP_herson, 32 S.W.3d .860, 861 ,(Tex. Crim. App. zo``ojo). In
add_ition, an applicants sworn allegations alone are insufficient proof of his
claims E)_c parte E_mpey, 757 S.Wzd 7'_71, 775 (Tex. Crim. App. 1988)-
49
To prevail on a claim of ineffective assistance of counsel, an applicant must
meet the two-prong test articulated in Str'icqund v. Washington, 466 U.;S. 668
(1984). 'Speciflcally, he inust show;:~ _ (1) deficient performance in that his
counsele representation fell below an objective standard of reasonableness
under prevailing professional norms, and (_2) prejudice,_ or a reasonable
probability that, but for counsel’s deficient performance,~ the result of the
proceeding would have been different ld. at 687-88, _694;. "A reasonable
probability is a probability sufficient t,o undermine confidence in the
outcome.” Id. “[W]he'n a person challenges the validity of a plea entered
upon the advice of couns``el, 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 i_f n_ot,
(2) whether there is a reasonable probability that, b"u``t for counsel’s errors, her
would not have pleaded guilty to the charged offense and would have insisted
on going t_o t_ri_al.” Ex parte Harn’_ngton, 310 S.W.3d 452, 458 (Tex'. Crim. App.
zoio) (``inter'nal quotation marks omitted).
50
I_. G_l_loUND ONE: Tr_ial counsel Was not ineffective for¢advising applicant that his
sentences in each c_ase could be st_ac_k_ed even though the offenses raro's;e during
the same criminal episode.
In his first grou'nd, applicant argues that his plea was 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 crunm_al episode
(Wr``it Appl. 6'-7). Article 42.08 of the Code of Criminal Procedure provides in
pertinentpart:
When the same defendant has been convicted in two or more c_a_ses,
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
Sec_t``i'o'ns (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 be accordingly . ,. .
Te_x_, Code _C_ri_m._ Proc. Ann. art. 42..08(a) (West.2014).. However, “[w]hen the
accused 'i's 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 Sect;ion
3.03(a) only prevents cumulation of sentences for offenses arising out of the
same criminal episode when they are prosecuted i_n a single trial or plea
51``
proceeding Ex parte Pharr, 897 S.W.2d 795, 7"96 (Tex. Crim. App. 1995). As
nothing prevented the State from prosecuting these cases in separate
proceedings trial counsels 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
I'I_. GRO``UN'D TWO: Applicant has failed to prove that his counsel’s
performance Was deficientfor 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 facts
of his case before advising him to plead guilty, failing to determine that the
State’s evidence did not include his fingerprints or DNA on the drugs, and
failing to object to th¢ group plea session ('Writ_ Appl, 8-9). Fii'st', applicants
trial counsel did in fact hire an investigator to determine the extent of the
victim’s impairment from his injuries as it related to t_h_e issue of serious
bodily injury (Attach._ 1-2). Furth'er, applicant fails= to show, from facts-
contained in the record, what a more thorouin investigation would have
shown or how such evidence would have affected his decision to plead guilty
52
(Wri_t Appl. 8-9). See Mooney v. State, 81'7 S.W.2d 69'3, 697 (Tex. Crim. App.
iggi) (no ineffectiveness Wh'ere appellant failed to establish what, “if anything
counsel could have learned from a more thorough investigation-.”). Las``tly,
applicant fails to provide any authority for the proposition that his group plea
session was somehow 'irnproper.. S``ee Ex`` parte Wils``o‘fi, 7i6 S.W.2d 953,- 956
(Tex_. Crim;. App. 1986) (presumption of regularity with respect to_ guilty pleas
under article 1.15l of the Cofde. of Criminal Procedure)»; Shipley v.- State, 828
SiW-_Z.Cl 475, 480 (Tex. App.-El Paso 1992, pet. ref’d) (citing Mc~MiIla'n v; State,
727 S.W.2d 58_2-, 583-84 ('l``ex. Crim._App. 19_87) (“[A]n accused who is apprised
of such rights, even when given in a group plea .session, shall be found to
adequately understand those rights.”).. Acc'o'rdingly, appellant has failed to
carry his burden under Strickland’s first prong to show that his trial counsel’s
performance was deficient, and his second ground for relief should be denied.
III. GROUND THREE: By failing to object at h_i_s plea h_e_aring, applicant has
forfeited lhis challenge to the group plea -se_ssi_or_i;.
In his third ground for relief,`` applicant argues that the .Court.abi``ised 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,
53
he has forfeited any alleged error for reiri'ew, and his third ground for relief
should be denied Se'e Ex parte Bagle'y, 509 S.W.2d 332, 333-334 (Teitl Crim.
.APP-197,4)
PRAYE-R
WHEREFGRE, PR;E;MISES CONSIDERED, the State prays that the Court
find that there are no controverted previously unresolyed facts material to
the legality of applicants confinement; that there is no necessity for a facts
finding hearing as there is ample evidence in the record for the Court to rule
on the relief sought; and that the Court enter Findi_ngs of Fact and
Conclusion_s of L_aw, recommend denial of the relief sought, and send
applicant hence without delay
Respect;fi.z_lly submitted
D. M,A'I``T BINGHAM
Cri``minal District Attoi'ney'
Si``n``ith County, Te;cas
AAnoN s./§EDIKER " y
A_s_sistan't Crimi.n.a.l Distrijct'Attorney
SBOT #:' 240466'92
10'_0 North Broam 4th Floor
Tyler, Texas 757``02
Phon‘e: (903) 590-1720
Pax:. (903) 590-1719
.8
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