Cottingham, Jamaka Ray

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-90,447-01
EX PARTE JAMAKA RAY COTTINGHAM, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 744984-A IN THE 176 TH DISTRICT COURT
FROM HARRIS COUNTY
N EWELL, J., filed a dissenting opinion in which R ICHARSDON
and W ALKER JJ., joined.
Applicant was convicted of aggravated robbery. According to the
State’s case, Applicant and another man robbed Kenneth Brown while Mr.
Brown was talking on a pay phone. Applicant presented an alibi defense.
Police reports—turned over in pre-trial discovery—reflected that the
getaway car was found and that the police were able to lift latent prints
containing “sufficient characteristics to effect an identification.”
Applicant’s trial attorney never investigated those prints.
In his application for post-conviction relief, Applicant alleges, among
Cottingham Dissent — 2
other things, that in this case he did not receive effective assistance of
counsel because trial counsel failed to conduct an adequate investigation
into the case prior to trial. Subsequent to trial, the fingerprints have
been analyzed and linked to two different men who were part of a car-
jacking ring that Applicant did not belong to. The analysis excluded
Applicant.
The State, the defense, and the habeas court all agree that
Appellant is entitled to a new trial based at least upon trial counsel’s
failure to investigate this key identification evidence. I cannot see any
strategic justification for counsel’s failure.1 And while I appreciate the
Court’s concern about the conflicting evidence regarding Applicant’s
involvement in the crime, I see no reason to remand for additional
credibility findings that the trial court has already implicitly made. And
even if the trial court makes an explicit credibility finding regarding the
alternative perpetrator’s unsworn statements, trial counsel’s failure to
investigate the fingerprint evidence and uncover this new information
undermines confidence in the outcome of the proceedings.2
1
See, e.g., W iggins v. Sm ith, 539 U.S. 510, 521–22 (2003) (explaining that strategic
choices m ade after a less than com plete investigation are reasonable to the extent that
reasonable professional judgm ents support the lim itations of the investigation).
2
See Thom pson v. State, 9 S.W .3d 808, 812 (Tex. Crim . App. 1999) (“[A]ppellant m ust
show a reasonable probability that, but for counsel’s unprofessional errors, the result of the
Cottingham Dissent — 3
Rather than grant relief on this ground, the Court chooses to
remand the case for further findings related to Applicant’s ineffective
assistance claim. Just as in the Court’s recent remand in Ex parte Grant,3
the remand order in this case makes clear the Court’s dissatisfaction with
the State’s post-conviction advocacy. It is not this Court’s job to step in
when it thinks the State isn’t up to the task.4 The habeas court’s findings
and conclusions are supported by the record. We should defer to them
and grant relief.
With these thoughts, I respectfully dissent.
Filed: October 7, 2020
Publish
proceeding would have been different. A reasonable probability is a probability sufficient to
underm ine confidence in the outcom e.”).
3
Ex parte Grant, WR-84,021-04, 2020 W L 3635868, at *1 (Tex. Crim . App. July 1,
2020) (not designated for publication) (rem anding for m ore fact finding after the trial court
adopted Applicant’s and the State’s proposed findings of fact and conclusions of law
recom m ending that we grant relief).
4
See, e.g., Ex parte McEwen, 602 S.W .3d 586, 587 (Tex. Crim . App. 2020) (Newell, J.,
concurring) (noting that the Court should trust the State’s decision on whether to raise a
particular issue or m ake a particular argum ent).