Alexander, Kelvin Grant

WR-83,764-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/28/2015 5:06:20 AM
Accepted 10/28/2015 8:07:09 AM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
AND THE 359th DISTRICT COURT OF MONTGOMERY RECEIVED
COURT OF CRIMINAL APPEALS
COUNTY, TEXAS 10/28/2015
ABEL ACOSTA, CLERK
Nos. WR-83,764-01
WR-83,764-02
EX PARTE
KELVIN GRANT ALEXANDER, Ancillary Case No. 07-02-01683-CR
Applicant Ancillary Case No. 07-08-08026-CR
_____________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF
APPLICATION FOR POST-CONVICTION WRIT
OF HABEAS CORPUS PURSUANT TO
TEX. CRIM. PROC. CODE ANN. ART. 11.07
_____________________________________________________
R. Scott Shearer
TBA No. 00786464
917 Franklin, Suite 320
Houston, TX 77002
(713) 254-5629
(713) 224-2889 FAX
ShearerLegal@Yahoo.com
Habeas Counsel for
Applicant
October 28, 2015
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THIS APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
IS FILED PURSUANT TO TEX. CRIM. PROC. CODE ANN. ART. 11.07 IN THE
363rd JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS.
Applicant, KELVIN GRANT ALEXANDER, pursuant to TEX. CRIM. PROC.
CODE ANN. art. 11.07, moves this Court to issue a Writ of Habeas Corpus for his
release from confinement on the grounds that he is being denied his liberty under
illegal and unconstitutional cumulative sentences of twenty-seven [27] and five [5]
years imprisonment by Barry Martin, senior warden at the William P. Clements Unit,
located at 9601 Spur 591, Amarillo, TX 79107-9606. Applicant claims that his Due
Process rights under the United States Constitution, Due Course of Law rights under
the Texas Constitution and Sixth Amendment rights under the United States
Constitution were abridged as a result of the ineffective assistance rendered by both
trial and appellate counsel. Additionally, Applicant claims that his Due Process
rights and Due Course of Law rights have been abridged by the trial court’s
imposition of a void and unlawful sentencing cumulation order which was
unsupported by the evidence. Said order directly contradicts the mandate of TEXAS
PENAL CODE §3.03(a).
But for these constitutional and statutory errors, Applicant would not have
been assessed cumulative sentences of twenty-seven [27] and five [5] years,
respectively.
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I. HISTORY OF PRIOR PROCEEDINGS
The 359th Criminal District Court of Montgomery County, Texas, entered the
judgments under attack. The Appellant was charged by indictment in cause numbers
07-02-01683-CR & 07-08-08026-CR with the felony offenses of aggravated robbery
and possession of a controlled substance. (CR I at 3). Both charges were alleged to
have occurred on January 15, 2007. (CR I at 3). Appellant pleaded not guilty and a
jury trial ensued. (RR III at 4). The Appellant was found guilty and the jury assessed
punishment at twenty-seven [27] years on the aggravated robbery charge and five
[5] years on the possession case. (RR XI at 66). The Appellant did not file a motion
for new trial. The Appellant gave timely notice of appeal. (CR I at 42, 48).
In an UNPUBLISHED opinion delivered December 9, 2009, a panel of the
Ninth Court of Appeals AFFIRMED Appellant’s convictions on direct appeal.
Appellant did not file a motion for rehearing. Appellant filed a Petition for
Discretionary Review on March 1, 2010. Appellant’s Petition for Discretionary
Review was denied by the Court of Criminal Appeals on August 25, 2010.
On May 8, 2015, Applicant filed a writ of habeas corpus in the trial court. In
a written order, the trial court recommended that relief be denied. On October 7,
2015, this Court ordered additional findings of fact and conclusions of law as to
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whether trial counsel was deficient and, if so, whether counsel’s deficient
performance prejudiced Applicant.
II. STATEMENT OF FACTS
Applicant and his juvenile accomplice were alleged to have engaged in a
crime spree that began in the early morning hours of January 15, 2007. (CR I at 15-
17)(RR XI at 59). The alleged crime spree started with Applicant and his juvenile
accomplice (RR IV at 57) attempting to carjack a man at an apartment complex on
Antoine Street in Houston, Texas. (RR X at 84-86). This man was able to escape
the attempted carjacking. Another resident of the apartment, however, was not so
fortunate. Applicant and his accomplice allegedly robbed her at gunpoint and took
her vehicle in the early morning hours of January 15, 2007 – the same day as the
instant offense. (RR X at 58-59). The pair then drove the stolen vehicle toward
Huntsville, Texas, stopping at a Walmart in Conroe, Texas where they robbed a
patron of a Walmart store. (RR XI at 57). Applicant confessed to being the driver
in the robbery, but alleged that his juvenile co-defendant was the one who actually
pointed the gun at the vehicle’s owner. (RR VII at 28-30). Upon leaving the
Walmart, the pair allegedly robbed the house of a drug dealer in Huntsville, Texas.
(RR X at 103)(RR XI at 55). The prosecutor alleged that the pair used the money
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they received from the Huntsville robbery to buy crack cocaine. (RR XI at 60).
Applicant and his accomplice were arrested on the way back from Huntsville to
Houston by diligent law enforcement officers who were looking for a vehicle
matching the description of the one used at the Walmart robbery. (RR VII at 29)(RR
X at 60). Applicant was the passenger in the vehicle when it was stopped. (RR IV
at 144). The juvenile fled on foot and was apprehended after a chase. (RR IV at
145). Upon being booked into the jail, Applicant was searched and found to be in
possession of a quantity of crack cocaine. (CR I at 18)(RR IV at 26, 177).
Applicant was tried before the same jury upon two separate indictments
alleging aggravated robbery and the possession offense. The Appellant was found
guilty and the jury assessed punishment at twenty-seven [27] years on the aggravated
robbery charge and five [5] years on the possession case. (RR XI at 66). Upon
motion of the State (CR at 34), the trial court ordered Applicant’s sentences to run
consecutively. (CR at 36).
III. Argument and authorities
This Court has both original and appellate jurisdiction in habeas corpus cases.
See TEX. CONST. Article 5, §5; TEX. CRIM. PROC. CODE ANN. Art 11.01-11.07. This
Court’s subject matter jurisdiction is defined in Article 11.07, §3(a), which states,
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“After final conviction in any felony case, the writ must be returnable to the Court
of Criminal Appeals of Texas at Austin, Texas.” The authority of the Court of
Criminal Appeals to issue writs of habeas corpus is virtually unlimited, extending to
both civil and criminal cases. See Ex parte Cvengros, 384 S.W.2d 881 (Tex. Cr.
App. 1964).
A. Standard of review.
To prevail on a writ of habeas corpus, the proponent must prove his allegations
by a preponderance of the evidence that an error contributed to his conviction or
punishment. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Cr. App. 1995), cert.
denied, 518 U.S. 1021 (1996); Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Cr.
App. 2001).
In a post-conviction review of a writ of habeas corpus, this Court is the
ultimate factfinder. The Court is not bound by the findings and conclusions of the
convicting court, but it generally defers to such if they are supported by the record.
See, e.g., Ex parte Chabot, 300 S.W.3d 768, 772 (Tex. Cr. App. 2009); Ex parte
Thompson, 153 S.W.3d 416, 417-18 (Tex. Cr. App. 2005). When this Court’s
independent review of the record reveals that the trial judge’s findings and
conclusions are not supported by the record, however, the Court may exercise its
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authority to make contrary or alternative findings and conclusions. Ex parte Reed,
271 S.W.3d 698, 727 (Tex. Cr. App. 2008). Should a given finding or conclusion
be immaterial to the issue or irrelevant to the disposition, an appellate court may
decline to consider said finding or conclusion and, instead, consider only those
findings and conclusions that are supported by the record and are germane to the
resolution of the habeas appeal. See generally Ex parte Reed, 271 S.W.3d 698, 728-
29 (Tex. Cr. App. 2008) (concluding that the few instances in which the findings
were inconsistent or misleading did not justify a decision to totally disregard the
findings that were supported by the record and were germane to the resolution of
defendant’s claims). Additionally, great deference to the trial court’s determinations
must be given even when all of the evidence is submitted by affidavits. See Ex parte
Wheeler, 203 S.W.3d 317, 325-26 (Tex. Cr. App. 2006); Manzi v. State, 88 S.W.3d
240, 244 (Tex. Cr. App. 2002).
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B. Legal Grounds.
GROUND ONE: THE TRIAL COURT IMPOSED A VOID AND
UNLAWFUL SENTENCING CUMULATION ORDER IN
VIOLATION OF APPLICANT’S RIGHT TO DUE PROCESS OF LAW
AND IN CONTRAVENTION OF TEXAS PENAL CODE SECTION
3.03(a). APPLICANT WAS TRIED UPON TWO SEPARATE
INDICTMENTS IN A SINGLE TRIAL FOR OFFENSES ALLEGEDLY
ARISING OUT OF THE SAME CRIMINAL EPISODE.
a. TEXAS CRIMINAL PROCEDURE CODE 42.08 generally allows a
trial court to cumulate sentences.
At the time of the commission of the underlying offense, the trial court, in
general, had the discretion to order sentences to run concurrently or consecutively.
See TEX. CRIM. PROC. CODE ANN. art. 42.08(a). The State filed a motion to cumulate
sentences. (CR at 34). The State’s motion cited the trial court to TEX. CRIM. PROC.
CODE ANN. art. 42.08(a). The trial court granted the State’s motion by written order.
(CR at 36).
b. TEXAS PENAL CODE Section 3.03(a) acts as a limitation upon the
general authority to cumulate sentences found in §42.08.
Unfortunately, the State failed to apprise the trial court that the general
authority to cumulate sentences found in Section 42.08(a) is restricted in certain
instances. The general discretion found in Section 42.08 is statutorily limited by
Section 3.03 of the TEXAS PENAL CODE, which requires the trial court to order
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sentences to run concurrently when the accused is found guilty of more than one
offense arising out of the same criminal episode prosecuted in a single criminal
action. See TEX. PENAL CODE §3.03. Section 3.03(a) is a statutory limitation on
article 42.08. LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Cr. App. 1992). Section
3.03(a) provides as follows:
§ 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.
TEX. PENAL CODE §3.03.
At the time of the alleged offenses, the definition of a criminal episode was as
follows:
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
offenses.
TEX. PENAL CODE §3.01.
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A single criminal action refers to a single trial or plea proceeding. Ex parte
Pharr, 897 S.W.2d 795, 796 (Tex. Cr. App. 1995). Accordingly, a defendant is
prosecuted in a single criminal action, “when allegations and evidence of more than
one offense arising out of the same criminal episode are presented in a single trial[.]”
LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Cr. App. 1992).
c. Applicant was alleged to have committed these offenses on the
same day, during a single criminal episode.
It is clear from the record that both offenses were part of the same criminal
episode and were tried in a single criminal action. This was the State’s theory of the
case. The prosecutor informed the trial court of her theory at a pre-trial hearing (RR
II at 5) and argued this theory to the jury at closing argument on punishment. (RR
XI at 59-60). Moreover, the illegal possession was discovered upon the Applicant’s
booking for the Walmart aggravated robbery, which occurred on the same day.
Accordingly, under Section 3.03(a) of the TEXAS PENAL CODE, the sentence
in the aggravated robbery should have been ordered to be served concurrent to the
possession sentence. Therefore, the order cumulating Applicant’s sentence in this
case is improper and void.
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d. The cumulation order is void, and the defect may be raised at any
time.
This Court has long held that a defect that renders a sentence void may be
raised at any time. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Cr. App. 2006)
(citing Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Cr. App. 1996)); Ex parte McKay,
82 Tex. Crim. 221, 199 S.W. 637, 639 (1917) (habeas corpus relief is available
against a void order of a court). An improper cumulation order is a defect that
renders a sentence void. See LaPorte, 840 S.W.2d at 415; see also Nicholas v. State,
56 S.W.3d 760, 764 (Tex. App. - Houston [14th Dist.] 2001, pet. ref’d) (“An
improper cumulation order is, in essence, a void sentence, and such error cannot be
waived.”). Furthermore, this Court has held that [a] claim of an illegal sentence is
cognizable in a writ of habeas corpus. Parrott, 396 S.W.3d at 534 (citing Rich, 194
S.W.3d at 511).
In Ex parte Townsend, however, this Court held that an improper cumulation
order may not be challenged for the first time on a writ of habeas corpus. Ex parte
Townsend, 137 S.W.3d 79, 80 (Tex. Cr. App. 2004). In so holding, this Court
reasoned that Townsend forfeited his claim by failing to raise the issue on direct
appeal. Id. at 81. While Townsend filed a direct appeal, he failed to raise the claim
regarding his cumulation order. Townsend v. State, No. 13-92-0097-CR (Tex. App.-
Corpus Christi July 29, 1993, pet. ref‘d) (not designated for publication); see also
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Townsend v. Dretke, C.A. No. C-05-304, 2003 U.S. Dist. LEXIS 31634 (S.D. Tex.,
Apr. 20, 2006) (setting out procedural history). This Court, however, did not make
any determination as to whether an improper cumulation order constituted an illegal
or void sentence, and did not discuss or overrule its decision in LaPorte. See
generally Townsend, 137 S.W.3d at 79–83.
In the present case, unlike the movant in Townsend, Applicant has raised a
claim concerning the improper cumulation order in the context that it has made his
sentence illegal and void. This Court has long held, and has continued to hold since
its decision in Townsend, that a defect that renders a sentence void may be raised at
any time. See Parrott, 396 S.W.3d at 534; Rich, 194 S.W.3d at 513 (“The case law
makes it clear that [a]pplicant can seek relief by direct appeal or writ of habeas
corpus because a defect which renders a sentence void may be raised at any time.”).
Additionally, this Court has considered the merits of other claims concerning an
improper cumulation order, which have been raised in the context that there was no
evidence to support the cumulation order, Ex parte Knight, 401 S.W.3d 60, 63–65
(Tex. Cr. App. 2013), and in the context of ineffective assistance of counsel. See
also Ex parte Barron, No. WR-75,972-02, 2014 Tex. Cr. App. Unpub. LEXIS 583
(Tex. Cr. App. June 18, 2014) (not designated for publication) (granting relief where
applicant raised improper cumulation order in the context of ineffective assistance
of counsel-finding counsel ineffective for failing to object to the order); Ex parte
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Bailey, Nos. AP-76,699, AP-76,700, AP-76,701, AP-76,702, 2011 Tex. Cr. App.
Unpub. LEXIS 886 (Tex. Cr. App., Nov. 23, 2011) (not designated for publication)
(considering and granting applicant‘s claim of an improper cumulation order).
e. The proper remedy is to reform the judgment to delete the void
cumulation order.
This Court should grant Applicant the relief that he seeks. The proper remedy
for a void cumulation order is to reform the judgment to delete the offending order.
See Morris v. State, 301 S.W.3d 281, 295 (Tex. Cr. App. 2009) (The appropriate
remedy for an improper cumulation order is the deletion of the cumulation order.);
Reedy v. State, 194 S.W.3d 595, 603 (Tex. App. - Houston [1st Dist.] 2006, no pet.)
(same).
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GROUND TWO: THERE WAS NO EVIDENCE TO SUPPORT
THE CUMULATION ORDER.
A. Standard of review.
This Court has limited review of evidence claims in habeas proceedings. See
Ex parte Perales, 215 S.W.3d 418, 419 (Tex. Cr. App. 2007). A claim of insufficient
evidence is not cognizable on a post-conviction writ of habeas corpus, but a claim
of no evidence is. Ex parte Perales, 215 S.W.3d 418, 419 (Tex. Cr. App. 2007)
(holding that, notwithstanding applicant’s waiver of appellate rights, no-evidence
claim was “cognizable” on habeas). This Court’s jurisdiction is limited to review
for any evidence rather than for sufficient evidence. The Court must deny the
application if there is any evidence to support application of the cumulation
provision. See Id.
B. There was no evidence to support the cumulation order.
In the recent decision of Ex parte Knight, another habeas case, the Court of
Criminal Appeals decided the case on the merits, finding some evidence to support
the trial court’s cumulation order. See Ex parte Knight, 401 S.W.3d 60, 64–65 (Tex.
Cr. App. 2013). In the case at bar, there is no evidence to suggest that the two
offenses were not committed on the same day as part of the same criminal episode.
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On the contrary, it was the State’s position that they were. The prosecutor argued
that the Applicant and his accomplice started a “crime spree” on January 15, 2007.
(RR XI at 59). Their crime spree ended the same day it began, which resulted in the
Applicant being booked into jail and found to be in possession of crack cocaine.
Indeed, the prosecutor argued that the purpose of the aggravated robbery was to
obtain money to buy the crack cocaine. (RR XI at 60).1 Consequently, these two
offenses were part of the same criminal episode. There is simply no evidence to
even suggest otherwise. Both offenses were tried in the same single criminal action,
and there was no evidence to support the trial court’s cumulation order. The order
should be vacated.
1
Another possibility is that the Applicant obtained the crack cocaine when he robbed
the dope dealer’s house in Huntsville.
15
GROUND THREE: APPLICANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Trial counsel’s representation fell below an objective standard of
reasonableness and there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Trial
counsel’s performance was deficient and a reasonable probability exists that the
result of the proceeding would have been different but for the deficiency. Moreover,
there is no basis for concluding that counsel’s conduct was strategic. Trial counsel’s
ineffectiveness is firmly founded in the record and the record affirmatively
demonstrates the alleged ineffectiveness.
A. Standard of review.
A successful claim that one’s trial counsel provided ineffective assistance
requires a demonstration by a preponderance of the evidence that (1) counsel’s
representation fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984); Ex parte Santana, 227 S.W.3d 700, 704-05 (Tex. Cr. App. 2007);
16
Bone v. State, 77 S.W.3d 828, 833 (Tex. Cr. App. 2002); Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Cr. App. 1986); see also Hurley v. State, 606 S.W.2d 887 (Tex.
Cr. App. 1980); Reese v. State, 905 S.W.2d 631, 635 (Tex. App. - Texarkana 1995,
pet. ref'd), citing Ex parte Gallegos, 511 S.W.2d 510 (Tex. Cr. App. 1974)
(effectiveness of counsel, whether retained or appointed, is judged by a single
standard). A reasonable probability is one sufficient to undermine confidence in the
outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Cr. App.
1999). Both Strickland prongs must be firmly founded in the record. Thompson, 9
S.W.3d at 813.
To prevail on a claim of ineffective assistance of counsel, the defendant must
show that trial counsel’s performance was deficient and that a reasonable probability
exists that the result of the proceeding would have been different but for the
deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). The first prong of the Strickland test requires that the defendant show that
counsel’s performance fell below an objective standard of reasonableness.
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Cr. App. 1999). Thus, the defendant
must prove objectively, by a preponderance of the evidence, that trial counsel’s
representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640,
642 (Tex. Cr. App. 2002). The second prong requires that the defendant show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
17
proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at
2068; Thompson, 9 S.W.3d at 812. Under the first prong, however, a reviewing
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct.
at 2065. Any allegation of ineffectiveness must be firmly founded in the record, and
the record must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9
S.W.3d at 813.
The defendant must overcome the presumption that the challenged action
“might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quoting
Michel v. Louisiana, 350 U.S. 91, 100-101 (1955)). If there is any basis for
concluding that counsel’s conduct was strategic, then further inquiry is improper.
Bell v. State, 867 S.W.2d 958, 961 (Tex. App. - Waco 1994, no pet.). The accused
bears the burden of proving ineffective assistance of counsel by a preponderance of
the evidence. Cannon v. State, 668 SW.2d 401, 403 (Tex. Cr. App. 1984). The right
to “reasonably effective assistance of counsel” does not guarantee errorless counsel
or counsel whose competency is judged by perfect hindsight. Saylor v. State, 660
S.W.2d 822, 824 (Tex. Cr. App. 1983).
A reviewing court’s assessment of trial counsel’s performance must be highly
deferential; the court should indulge a strong presumption that counsel’s conduct fell
within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104
18
S. Ct. 2052; Tong v. State, 25 S.W.3d 707, 712 (Tex. Cr. App. 2000). The reviewing
court must also be careful not to second-guess through hindsight the strategy of
counsel at trial; the mere fact that another attorney might have pursued a different
course will not support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588,
592 (Tex. Cr. App. 1979); Ex parte Simpson, 260 S.W.3d 172, 175-76 (Tex. App. –
Texarkana 2008, pet. ref’d).
The adequacy of counsel’s assistance must be gauged by the totality of the
representation. Pena, 132 S.W.3d at 669 (citing Gomez v. State, 921 S.W.2d 329,
333 (Tex. App. - Corpus Christi 1996, no pet.)). There is a strong presumption
that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Strickland, 466 U.S. at 669;
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Cr. App. 1999). The right to
“reasonably effective assistance of counsel” does not guarantee errorless counsel or
counsel whose competency is judged by perfect hindsight. Saylor v. State, 660
S.W.2d 822, 824 (Tex. Cr. App. 1983). In the present case, the Applicant has the
burden to show that his counsel’s performance fell below a reasonable standard of
competence and that there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. Ex parte Moody, 991 S.W.2d
856, 858 (Tex. Cr. App. 1999); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Cr.
App. 1997).
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In assessing counsel’s competence under the first prong of Moody, a
reviewing court presumes that counsel has knowledge of legal principles that are
neither novel nor unsettled. See Arreola, 207 S.W.3d at 392 (citing Ex parte Welch,
981 S.W.2d 183, 185 (Tex. Cr. App. 1998)). To overcome the presumption of
reasonable professional assistance, “any allegation of ineffectiveness must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Cr. App. 2005).
Appellant must prove by a preponderance of the evidence that trial counsel’s
representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640,
642 (Tex. Cr. App. 2002). Counsel is accountable for the knowledge, or the ability
to obtain the knowledge, of relevant legal matters that are neither novel nor unsettled.
Ex Parte Welch, 981 S.W.2d at 185.
B. Trial counsel’s errors.
In the case at bar, Attorney Eduardo Cortes wholly failed to: (1) educate
himself to the law; and (2) object to the obviously erroneous cumulation order. The
principles of law involved in this case were neither novel nor unsettled. A cursory
examination of the indictments and the cumulation order by an attorney
knowledgeable in criminal law and procedure would have revealed the obvious flaw
in the cumulation order. Counsel’s failure to confront the deficiencies in the
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cumulation order were not the result of trial strategy. There is simply no excuse for
attorney Cortes’ failure to object to the defect. Had trial counsel objected to the
cumulation order, Applicant would not be serving a combined sentence of thirty-two
[32] years. There can be no reasonable strategy in failing to object to the obviously
defective cumulation order. Applicant was denied the effective assistance of trial
counsel.
Attorney Cortes was charged with having knowledge of; or at least educating
himself to the defense to sentencing cumulation set out in PENAL CODE section
3.03(a). This Court has found that the failure to object to an improper cumulation
order constitutes ineffective assistance of counsel. See Ex parte Barron, No. WR-
75,972-02, 2014 Tex. Cr. App. Unpub. LEXIS 583 (Tex. Cr. App. June 18, 2014)
(not designated for publication) (granting relief where applicant raised improper
cumulation order in the context of ineffective assistance of counsel-finding counsel
ineffective for failing to object to the order);
In conclusion, trial counsel’s ineffectiveness is firmly founded in the record.
Attorney Eduardo Cortes’ failure to object and to invoke an utter defense to the
cumulation order constituted ineffective assistance. Attorney Cortes’ failure to
object requires Applicant to undergo five [5] more years in prison than he would
have been required to serve had his attorney been competent.
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GROUND FOUR: APPLICANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION.
The Fourteenth Amendment to the United States Constitution guarantees, to
a criminal defendant pursuing a first appeal as of right, certain minimum safeguards
necessary to make the appeal “adequate and effective.” Evitts v. Lucey, 469 U.S.
387, 392 (1984) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956)). These
safeguards include the right to counsel, id. (citing Douglas v. California, 372 U.S.
353 (1963)), which comprehends the right to effective assistance of counsel. Id. at
396. This Court must apply the standard set out in Strickland v. Washington, 466
U.S. 668 (1984), in judging claims of ineffective assistance of appellate counsel.
Evitts, 469 U.S. at 392; Smith v. Robbins, 528 U.S. 259, 285 (2000).
Appellate counsel’s representation fell below an objective standard of
reasonableness and there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Applicant’s appellate counsel was objectively unreasonable in failing to raise
arguable and meritorious issues on appeal.
Applicant’s appellate counsel, Kevin Scott “Gator” Dunn, failed to raise on
appeal the issue of trial counsel’s failure to object to the unlawful cumulation order.
(RR XI at 67). This Court has counseled appellants that it is normally not
22
appropriate to raise an ineffective assistance claim on direct appeal. See Bone v.
State, 77 S.W.3d 828, 833 (Tex. Cr. App. 2002); Jackson v. State, 877 S.W.2d 768,
771 (Tex. Cr. App. 1994) (Baird, J., concurring); Stults v. State, 23 S.W.3d 198, 208-
09 (Tex. App. - Houston [14th Dist.] 2000, pet. ref’d). Applicant’s appellate
attorney obviously ignored this advice, as his one and only ground of error in his
brief argued that trial counsel was ineffective for (1) making a punishment type
argument at the guilt stage; and (2) failing to file a motion for probation, which trial
counsel did in fact file. See Opinion at 4. (“[We] find the issue of the failure to file
a timely motion for community supervision to be completely unsupported by the
record.”).
Having unwisely chosen to proceed upon an ineffective assistance claim on
direct appeal, it boggles the mind that appellate counsel would raise such arguably
weak points and ignore a meritorious point concerning the cumulation order. Trial
counsel’s failure to object to the unlawful cumulation order is one of the few
arguments that would support an ineffective assistance claim on direct appeal.2
Appellate counsel’s performance fell below an objective standard of reasonableness
as a matter of law, and no reasonable appellate strategy could justify appellate
counsel’s failure to raise the claim, regardless of his subjective reasoning.
2
Appellate counsel’s failure to raise this point on direct appeal does not preclude
Applicant from raising the issue in a subsequent writ. See Nailor v. State, 149
S.W.3d 125 (Tex. Cr. App. 2004).
23
Appellate counsel’s deficiencies prejudiced Applicant’s defense. There was
a reasonable probability that, but for appellate counsel’s failure, Applicant would
have prevailed on his appeal. The ignored issues are clearly stronger than those
presented by Applicant’s counsel in his brief. Had Applicant been afforded
competent and effective assistance of appellate counsel, the cumulation order would
have surely been overturned.
IV. Request for an evidentiary hearing.
Article 11.07(d) expressly provides that a trial court may hold a hearing on a
habeas corpus application. See TEX. CODE CRIM. PROC. ANN. art. 11.07(d); Ex parte
Cummins, 169 S.W.3d 752, 757 (Tex. App. - Fort Worth 2005, no pet.). In making
its determination, Article 11.07 permits the trial court to order affidavits,
depositions, interrogatories, or a hearing, but it does not require that the trial court
do so. See Id; see also Ex parte Cummins, 169 S.W.3d 752, 757-58 (Tex. App. -
Fort Worth 2005, no pet.) (trial court not required to hold hearing where 11.072 writ
application alleged ineffective assistance of counsel). The trial court may also
consider evidence filed with the application or with the State’s response. See art.
11.07(d).
24
PRAYER FOR RELIEF
WHEREFORE, Applicant prays that the Court of Criminal Appeals will:
A. Order the trial court to schedule and conduct an evidentiary hearing at the
earliest practicable time to determine the facts and allow Applicant to present
evidence and argument on his behalf through counsel of record;
B. Allow a reasonable time after such evidentiary hearing for the Applicant to
brief the issues raised in this application and developed at an evidentiary
hearing;
C. Grant Applicant relief upon his application such that Applicant’s sentence will
be VACATED and his sentence REFORMED to delete the cumulation order.
D. Send copies of the Court’s opinion to the Texas Department of Criminal
Justice-Correctional Institutions Division and Pardons and Paroles Division.
E. Publish the Court’s opinion as a reference for the bench and bar.
F. Grant him such other relief as he may be entitled to.
Respectfully submitted,
/s/ R. SCOTT SHEARER
R. Scott Shearer
TBA No. 00786464
917 Franklin, Suite 320
Houston, TX 77002
(713) 254-5629
(713) 224-2889 FAX
ShearerLegal@Yahoo.com
Habeas Counsel for Applicant
October 28, 2015
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CERTIFICATE OF COMPLIANCE WITH RULE 73
Certificate of Compliance with Type-Volume Limitations
and Typeface Requirements.
1. This memorandum complies with the type-volume limitation of TEX. R. APP.
PROC. 73.1(d) because:
This memorandum contains 5,094 words.
2. This memorandum complies with the typeface requirements of TEX. R. APP.
PROC. 73.1(e) because:
this memorandum has been prepared in a conventional proportionally
spaced typeface using Microsoft WORD 97 version 7.0 in Times New
Roman 14 point type.
/s/ R. SCOTT SHEARER
R. Scott Shearer
26
CERTIFICATE OF SERVICE
I certify that a copy of this Writ of Habeas Corpus Memorandum has been
served upon the State of Texas by e-mailing a copy of same to the following
addresses on this the 28th day of October, 2015:
BRENT CHAPELL
MONTGOMERY CO. DISTRICT ATTORNEY’S OFFICE
APPELLATE DIVISION
207 W. PHILLIPS, 2ND FLOOR
CONROE, TX 77301-2824
MS. LISA C. MCMINN, S.P.A.
P.O. BOX 13046
CAPITOL STATION
AUSTIN, TX 78711
/s/ R. SCOTT SHEARER
R. Scott Shearer
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