Kanybitabo, Mathieu ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-93,371-01 & WR-93,371-02
Ex Parte MATHIEU KANYABITABO AKA MATHIEU KANYBITABO, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 13819-D & 14123-D IN THE 350TH DISTRICT COURT
FROM TAYLOR COUNTY
KELLER , P.J., filed a dissenting opinion in which YEARY and SLAUGHTER , J., joined.
DISSENTING OPINION
The Court grants Applicant a new punishment hearing on both of his convictions. I dissent
for two reasons.
First, after a live hearing, the habeas court made express, nuanced findings of fact regarding
the credibility of the witnesses and their testimony, and the court recommended denying relief. The
credibility findings support the court’s recommendation. For reasons unstated, this Court declines
to defer to those findings and grants Applicant a new punishment hearing. I would defer to the
habeas court’s credibility findings.
Second, on an ineffective-assistance claim, it is an applicant’s burden to show that there is
KANYABITATO DISSENT — 2
a reasonable probability that, but for counsel’s errors, the sentencing judge would have reached a
more favorable penalty phase verdict.1 The habeas judge in this case was also the sentencing
judge—the same judge who heard the evidence, assessed Appellant’s punishment the first time
around, and now recommends denying relief. The judge has already considered the new mitigating
evidence, and he believes it, but he still recommends denying relief. This means that, looking
backwards, he has concluded that he would not have assessed a shorter sentence had he known about
the new mitigating evidence. Applicant has therefore not shown a reasonable probability that the
new evidence would have resulted in a more favorable penalty phase verdict.2 I respectfully dissent.
Filed: March 29, 2023
Do not publish
1
Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012).
2
Applicant was convicted of assault and theft. In the assault case, he shot a gun into a car
full of people (hitting one in the head) because someone had mocked a friend’s death and someone
had threatened another friend. In the theft case, while he was in eleventh grade, Applicant stole three
gold chains and a gold cross worth over $2,500 from a jewelry store. His punishment was assessed
at thirteen years for the assault and sixteen months for the theft.