Bailey, Paul Clarence ( 2015 )

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COURT OF CR|MINAL APPEALS
‘ w366-81879-09-Hc 'JUL. 0 7 2015
Ex parte Paul Clarence Bailey § ln the Abeg
§ Acosta,cterk
§ 366th Judicial District Court
§
§ of Collin County, Texas
Order ‘
The Court, having reviewed Applicant’s Application ~i``or Writ of
Habeas C‘orpus and the State’s Response, iFlNDS that:
l) Applicant’s claim that the audio evidence was tampered with is not
cognizable on writ of habeas corpus;
2) Applicant has merely alleged that the 9._11 operator did not follow
proper protocol;
3) Applicant has not met his burden of proof that the 911 operator’s
n testimony was false; n
4) Ofiicer Greer testified that he went to Applicant’s home to conduct a
welfare check on him after Applicant’s son called police;
~ 5) Ofiicer Greer testified that he did not park in front of Applicant’s
house, that he did not have his lights on, that lie did not wait for
backup, and that he did not announce himself as a police ofticer;
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6) Otiicer Greer testified that it was possible that Applicant did not
realize he was a police ocher-and that this fact was the reason this
case was not charged as aggravated assault of a public servant;
7) The report from Nicholas D’Ombrain is not credible;
8) Mark Byrd’s affidavit is not credible;
9) Mutee Rahman’s affidavit is not credible;
10) Christopher Bell’s affidavit is not credible;
ll) Ev_erett Stern’s report is not credible;
12) The audio from Officer'Greer’s microphone was played for the
jury at trial;
'13) Applicant’s trial counsel and Ofiicer Greer noted the sound of
the gunshot at trial;
14) Ofticer Greer testified that there is a noise prior to the gunshot
_ on the audio recording from his microphone prior to the gunshot;
15) Applicant testified that he shouted a warning to his son before
shooting his gun at his front door;
16) Applicant has not met his burden of proof by a preponderance
of the evidence that the jury was misled by Ofticer Greer’s testimony;
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17) Applicant’s argument that his own defensive witnesses
provided a false report that was not presented at trial is not cognizable
on writ of habeas corpus;
18) l Applicant has not specified what the alleged breach of protocols
by the 911 operator and police officers were or how the evidence
would have benefitted him;
19) Applicant has not shown by a preponderance of the evidence
that counsel’s failure to point out the breaches was deticient;
20) Applicant has not shown .by a preponderance of the evidence
that the outcome of the trial would have been different had counsel
`` pointed out the alleged breaches; t
Zl) Ofticer Greer testified that it was possible that Applicant did
not see that he was a police before he shot and this fact is the reason
Applicant was not charged with aggravated assault of public scrvant;
22) Applicant has not shown by a preponderance of the evidence
that trial counsel was ineffective for failing to'impeach Of``ficer Greer
with evidence that Officer Greer knew Applicant did not know he was
a police officer;
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23) Applicant has not shown by a preponderance of the evidence
that the outcome or the trial would have been different had inn
' counsel sought to impeach Officer Greer with evidence that Applicant
knew he was not a police ofticer; l
24) Applicant does not identify an evidence that the #St``at_e failed to
turn over or how he was prejudiced by the failure;
25) Applicant has not shown by a preponderance of the evidence
that counsel was deficient for failing to challenge the State’s failure to
turn over the evidence;
26) Applicant has not shown by a preponderance of the evidence
that the outcome of the trial would have been different had counsel
l challenged the Statc’s failure to turn over evidence;
27.)_ Applicant does not explain how trial counsel sabotaged him;
28) Applicant has not shown by a preponderance of the evidence
that trial counsel was deficient for the sabotage;
29) 'Applicant has not shown by a preponderance of the evidence
that the outcome of the trial would have been different had counsel
not sabotaged hirn;
OFS
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30)_ Counsel Mark Ledbetter is an officer of the court, well known
to the court, and credible;
31) The affidavit provided by counsel Ledbetter is credible;
32) Counsel Gregg Gibbs is an officer of the court, well known to
the court, and cicdible;
33) Tbe affidavit provided by counsel Gibbs is credible;
34) Counsel Ledbetter wasprimarily responsible for investigating
whether the audio had been tampered with;
35) Counsel Ledbetter received a copy of the report conducted by
an expert hired by Applicant’s prior counsel that indicated that the
recording had not been tampered with or erased; -
36) Counsel Ledbetter and counsel Gibbs hired their own expert to
examine the audio recording;
37) 'I``he expert hired by counsel Ledbetter and counsel -Gibbs found
that there was no tampering with the audio and the period of silence
was a dropout caused by radio frequency interference with the body
microphone;
38) The report from Nicholas D’Ombrain is not credible;
39) Mark Byrd’s affidavit is not credible;
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40) Mutee Rahman’s affidavit is not credible; '
41) l Christopher Bell’s affidavit is not credible;
42) Everett Stern’s report is not credible;
43) Applicant has not shown``by a preponderance of the evidence
that trial counsel was deficient for failing to have fhc audio evidence
analyzed; and
44)
Applicant has not shown by a preponderance of the evidence
OFQ
that the outcome of the trial would have been different had counsel
had the evidence analyzed ~
_Aoooioiogiy, this court recommends that the court or criminal Appons
DENY Applicant’s Application.
IT IS ORDERED that the Clerk of this Court shall send copies of the Order
lto: (l) the Court of Criminal Appeals; (2) Paul Clarence Bailey, TDCJ #
1833504, Lynaugh Unit, 1098 South Highway 2037, Fort St``ockton, TX
79735; and (3) the Appellatc Division of the Collin County Criininal District
Attomey’s Offic_e.
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§
lT IS FURTHER ORDERED that the District Clerk shall immediately
transmit to the Court of Criminal Appeals a copy of Applicant’s 'Application,
'the State’s 'Response, and this Order.
614/15
sIGNED this day of ,2015.
t iUnGE fdssiDtNG f '