Legal Process for Seeking Relief from Final Felony Conviction

Presented by:

Gary A. Udashen

Udashen | Anton

2311 Cedar Springs Rd., Suite 250

Dallas, Texas 75201

214-468-8100

214-468-8104 fax

gau@udashenanton.com

Board President – Innocence Project of Texas

Does the Application:

•

Seek Relief From Final Felony

Conviction (not probation)

•

Raise Constitutional or

Fundamental Errors

•

Allege Confinement or Collateral

Consequences

•

Plead Facts, Which, If True, Would

Entitle Applicant to Relief



State Has 15 Days To Answer



Within 20 Days of Expiration of Time

For State’s Answer District Court Shall:

1.

Decide Whether There Are

Controverted, Previously Unresolved

Facts Material To Legality of

Applicant’s Confinement

2.

If Yes, Enter An Order

Designating Issues To Be Resolved

The Court finds there are controverted,

previously unresolved facts material to the

legality of applicant’s confinement, to wit,

whether the applicant received ineffective

assistance of counsel. These issues shall be

resolved by submission of affidavits and an

evidentiary hearing

.



Affidavits



Depositions



Interrogatories



Forensic Testing



Hearings



Personal Recollection



Court Makes This Finding



Clerk Sends Application, Answer

and Court’s Order To Court of

Criminal Appeals



District Court Issues Findings of Fact and

Conclusions of Law



Transmitted to Court of Criminal Appeals



Court of Criminal Appeals Grants or Denies

Relief



Court of Criminal Appeals Not Bound By

District Court’s Findings and Conclusions



Court Will Ordinarily Follow the Findings

and Conclusions if Supported By Record



Issue Could Have Been Raised on Direct

Appeal



Issue Was Decided On Direct Appeal

(exception on ineffective assistance)



Subsequent Writs



4

th

 Amendment Violation Not Cognizable



Insufficiency of Evidence Not Cognizable

(no evidence is cognizable)

QUESTIONS

:

1.

Are there factual questions to be

resolved?

2.

Does resolution of the factual questions

require credibility determinations?

3.

Would hearing the witness testify aid the

court in making credibility assessment?



SHOULD LAWYER ALWAYS WIN?



GALLEGO V. U.S., 174 F.3D 1196 (11

TH

CIR. 1999): “We cannot adopt a per se

credit counsel in case of conflict rule”

where “the defendant is going to lose

every time.”



Judge should assess credibility of the

lawyer and client based on their

testimony.



Ineffective Assistance of Counsel



Suppression of Exculpatory

Evidence



New Evidence Establishing Actual

Innocence



New Science



Perjured Testimony



Strickland v. Washington, 466 U.S. 668

(1984), test requires Applicant to show:

1.  Counsel’s performance was deficient.

Requires showing that counsel made errors so

serious that counsel was not functioning as

the counsel guaranteed by the Sixth

Amendment.

2.  The deficient performance prejudiced the

defendant.

An appellate court “must indulge a strong

presumption that counsel’s conduct [fell]

within the wide range of reasonable

professional assistance; that is, the

[appellant] must overcome the

presumption that under the

circumstances, the challenged action

might be considered sound trial strategy.”

Strickland

, 466 U.S. at 689

“In the absence of evidence of counsel’s

reasons for challenged conduct, an appellate

court ‘commonly will assume a strategic

motivation if any can possibly be imagined

and will not conclude the challenged conduct

constituted deficient performance unless the

conduct was so outrageous that no competent

attorney would have engaged in it.”

Garcia v. State

, 57 S.W.3d 436

(Tex. Crim. App. 2001)



Record must show why counsel

took the actions that constitute

ineffective assistance. 

Thompson v.

State, 

9 S.W.3d 808 (Tex. Crim.

App. 1999)



Trial counsel must provide affidavit

or testimony.

“Under our system of justice, the

criminal defendant is entitled to an

opportunity to explain himself and

present evidence on his behalf.  His

counsel should ordinarily be accorded

an opportunity to explain her actions

before being condemned as

unprofessional and incompetent.”

Bone v. State

, 77 S.W.3d 828, 836

(Tex. Crim. App. 2002)

Appellate court looks to the totality of the

representation and the particular circumstances of

each case in evaluating the effectiveness of counsel.

Thompson v. State

, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999)

It is possible that a single egregious error of

omission or commission by counsel constitutes

ineffective assistance.

Thompson

, 9 S.W.3d 813



Ineffective Assistance of Counsel

may (should) be raised for first time

on a writ. 

Ex Parte Torres

, 943

S.W.2d 469 (Tex. Crim. App. 1997).



Trial record is rarely sufficient to

show ineffective assistance.



Must show that but for

counsel’s errors

defendant would not have

entered a guilty plea. 

Hill

v. Lockhart, 

474 U.S. 52

(1985)

Strickland

 test applies to plea bargaining stage of

trial. Deficient advice concerning plea bargain

constitutes ineffective assistance.  Defendant must

show that he would have accepted the offer, the

state would not have withdrawn it and the trial

court would have accepted it.

Lafler v. Cooper

, 566 U. S. 156 (2012)

Missouri v. Frye

, 566 U.S. 134 (2012)

Ex parte Argent

, 393 S.W.3d 781

(Tex. Crim. App. 2013)

Failure to advise defendant prior to

defendant’s entry of guilty plea that he had a

viable legal defense that he did not perform

an overt act needed to support his conviction

constitutes ineffective assistance.

State v. Diaz-Bonilla

, 495 S.W.3d 45

(Tex. App. – Houston [14

th

 Dist.] 2016,

pet.ref’d

)

Counsel’s misinformation to defendant as to

his parole eligibility constituted deficient

performance.

Ex parte Moussazadeh

, 361 S.W.3d 684

(Tex. Crim. App. 2012)

Failure to advise defendant of deportation

consequences of conviction is ineffective

assistance.

Padilla v. Kentucky

, 559 U.S. 356 (2010)

Prejudice shown from counsel’s erroneous

advice that guilty plea would not result in

deportation when applicant shows he would not

have pled guilty had he known he would be

deported.

Jae Lee v. United States

, 137 S.Ct. 1958 (2017)

STRATEGIC DECISIONS ARE BASED ON INVESTIGATION

The Supreme Court has made clear that “strategic choices

made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable.”

Strickland

, 466 U.S. at 690-91

But when choices are made after less than complete

investigation, they are reasonable only “to the extent that

reasonable professional judgments support the limitations

on investigation.”  

Strickland, 466 U.S. 

at 691.

And decisions made out of inattention are not strategic and

afforded no deference at all.

Wiggins v. Smith

, 539 U.S. 510, 526 (2003)

Failure of trial counsel to investigate

information that someone else

committed the crime is ineffective.

Ex Parte Amezquita, 

223 S.W.3d 363

(Tex. Crim. App. 2006)

Counsel ineffective for lack of awareness of

case holding that, on charge for possession of

or attempt to possess controlled substance

through use of fraudulent prescription form,

State had to prove that defendant presented

“fraudulent” form, not just that defendant

committed “fraud” by interlineating upon

otherwise legitimate form.

Ex Parte Lewis

, 537 S.W.3d 917

(Tex. Crim. App. 2017)

Attorneys rendered ineffective assistance by failing

to investigate and present mitigating evidence of

defendant being abused as a child in capital murder

case.

Ex parte Gonzales

, 204 S.W.3d 391

(Tex. Crim. App. 2006)

Trial counsel’s failure to impeach witness with his

inconsistent statements, made when he told police

that he saw shooter’s face but could not make it

out, constituted deficient performance.

Ex parte Saenz

, 491 S.W.3d 819

(Tex. Crim. App. 2016)



Failure to request limiting instruction.

Ex parte Varelas, 

45 S.W.3d 627 (Tex.

Crim. App. 2001)



Failure to file application for probation.

Ex parte Welch, 

981 S.W.2d 183 (Tex. Crim.

App. 1998)



Failure to request accomplice witness

instruction when case based entirely on

accomplice testimony. 

Ex parte Zepeda,

819 S.W.2d 874 (Tex. Crim. App. 1991)

A defendant has the right under Sixth

Amendment to insist that counsel

refrain from admitting guilt during the

guilt-phase of a capital murder trial,

even when counsel’s view is that

confessing guilt offers the defendant

the best chance to avoid the death

penalty.

McCoy v. Louisiana

,

138 S.Ct. 1500 (2018)



Retained counsel performed

deficiently in limiting, for economic

reasons, his investigation of medical

evidence before advising client to

plead guilty. 

Ex parte Briggs, 

187

S.W.3d 458 (Tex. Crim. App. 2005)

Failure to hire DNA expert in sexual assault and

kidnapping prosecution amounted to deficient

performance, although counsel consulted other

attorneys, doing so was insufficient investigation in

this case given the fact that counsel still lacked

much understanding of DNA science, and expert

testimony likely would have given a boost to the

defense beyond what could have been accomplished

through cross-examination.  (no prejudice found)

Ex parte Napper

, 322 S.W.3d 202

(Tex. Crim. App. 2010)

Defense team’s failure to present

physician’s expert testimony

regarding sodium intoxication

constituted ineffective assistance of

counsel.

Ex parte Overton

,

444 S.W.3d 632

(Tex. Crim. App. 2014)

Defense counsel ineffective for

failure to request additional

funds to replace an inadequate

expert in firearms and toolmark

analysis.

Hinton v. Alabama

,

571 U.S. 263 (2014)

Ineffective assistance based on counsel’s

failure to consult with an expert

concerning sexual abuse and proper

methods of interviewing children

Wright v. State

,

223 S.W.3d 36 (Tex. App. – Houston [14

th

Dist.] 2016, pet. ref’d)

•

The sentencing process consists of weighing

mitigating and aggravating factors, and making

adjustments in the severity of the sentence

consistent with this calculus.

•

Failure to contact or call to testify twenty

character witnesses is ineffective assistance.

Milburn v. State

, 15 S.W.3d 267

(Tex. App. – Houston [14

th

 Dist.] 2000, 

pet. ref’d.

)

Failure of counsel to discover evidence

showing that the defendant was not at the

scene of a crime used  as an extraneous

offense at punishment phase constitutes

ineffective assistance of counsel.

Ex parte Rogers, 

369 S.W.3d 858

(Tex. Crim. App. 2012)

Trial counsel’s failure to investigate and

discover defendant’s mental health

history prejudiced defendant at penalty

phase of trial; there was reasonable

probability of less severe sentence;

substantial mitigating evidence was

available.

Lampkin v. State

, 470 S.W.3d 876

(Tex. App. – Texarkana 2015, 

pet. ref’d

)

Rights to effective assistance applies at Motion

for New Trial.

Cooks v. State

, 240 S.W.3d 906

(Tex. Crim. App. 2007)

To prove harm, must present a “facially

plausible” claim that could have been argued in

Motion for New Trial but was not.

Cooks

, 240 S.W.3d at 912

To obtain relief in the form of a new direct appeal

on a claim of ineffective assistance of appellate

counsel, a habeas applicant must show that (1)

counsel’s decision not to raise a particular point

of error was objectively unreasonable, and (2)

there is a reasonable probability that, but for

counsel’s failure to raise that particular issue, he

would have prevailed on appeal.

Ex parte Flores

, 387 S.W.3d 626

(Tex. Crim. App. 2012)

We now hold that the suppression by the

prosecution of evidence favorable to an

accused upon request violates due process

where the evidence is material either to guilt

or to punishment, irrespective of the good

faith or bad faith of the prosecution.

Brady v. Maryland

373 U.S. 83 (1963)



The prosecution withheld or

suppressed evidence.



The evidence was favorable to the

defense.



The evidence was material to either

guilt or punishment

.

MATERIALITY TEST

Evidence qualifies as material when there is

“any reasonable likelihood” it could have

“affected the judgment of the jury.”  To

prevail on a 

Brady

  claim, the applicant need

not show that he “more likely than not”

would have been acquitted had the new

evidence been admitted.  He must show only

that the new evidence is sufficient to

“undermine confidence” in the verdict.

Wearry v. Cain

, 136 S.Ct. 1002 (2016)

EXCULPATORY EVIDENCE

The State has an affirmative duty to

disclose evidence favorable and material to

a defendant’s guilt or punishment under

the Due Process Clause of the Fourteenth

Amendment. This duty attaches with or

without a request for the evidence. When

unsure of whether to disclose the evidence,

the prosecutor should submit the evidence

to the trial judge for his consideration.

Thomas v. State

841 S.W.2d 399

(Tex. Crim. App. 1992)

Prosecutor denied having any exculpatory

evidence

Exculpatory evidence suppressed:

Eyewitness (Walker) who said Thomas was

not in location where shooting occurred.

Prosecutor later testified,

“I would have brought (Walker’s testimony)

to the court’s attention had I thought it

would be exculpatory in any manner.”

Thomas v. State

EXCULPATORY EVIDENCE

Because we agree that the credibility of the

State’s only eyewitness, Anita Hanson, was

crucial issue in applicant’s trial, we conclude

that the State had an affirmative

constitutional duty under 

Brady v.

Maryland

 to disclose material evidence that

impeached her testimony.

Ex Parte Richardson

70 S.W.3d 865 (Tex. Crim. App.

2002)

Previous statement from eyewitness

that he could not identify the

perpetrator is exculpatory evidence

when eyewitness identifies

defendant in Court.

Smith v. Cain,

132 S.Ct. 627 (2012)

Knowledge of government agents, such

as police officers, of exculpatory

evidence is imputed to the prosecution.

Prosecutor has a duty to learn of any

favorable evidence known to the others

acting in the government’s behalf,

including the police.

Kyles v. Whitley

, 514 U.S. 419 (1995)



When reliability of a given witness may well

be determinative of guilt or innocence,

nondisclosure of immunity deal violates due

process.



Napue v. Illinois



360 U.S. 264 (1959)



“Supreme Court has never limited a 

Brady

violation to cases where the facts

demonstrate that the state and the witness

have reached a bona fide, enforceable deal.”



Lacaze v. Warden

,



645 F.3d 728 (5

th

 Cir. 2010)



Brady

 applies to agreement “which are

merely implied, suggested, insinuated or

inferred.”



Question is whether there exists “some

understanding for leniency.”



“It makes no difference whether the

understanding is consummated by a wink, a

nod and a handshake, or by a signed and

notarized formal document ceremoniously

impressed with a wax seal.  A deal is a deal.”



Duggan v. State

,



778 S.W.2d 465 (Tex. Crim. App. 1989)

State failed to disclose that, contrary

to the prosecution’s assertions at

trial, Brown had twice sought a deal

to reduce his existing sentence in

exchange for testifying against

Wearry.  The police had told Brown

that they would “talk to the D.A. if

he told the truth.”



The privilege derived from the work-

product doctrine is not absolute, and

the duty to reveal material

exculpatory evidence as dictated by

Brady

 overrides the work-product

privilege.

Ex Parte Miles

,

359 S.W.3d 647

(Tex. Crim. App. 2012)



Stanley Mozee and Dennis Allen



Writ Relief Granted January 10, 2018

(WR-82,467-01, WR-56,666-03)



Mozee and Allen convicted largely on the

basis of jailhouse informants.



Informants testify at trial that they had

no deal with state, had not asked for a

deal and did not expect a deal.



Letters to prosecutor found in District

Attorney’s file from informants, written

prior to trial, asking when the prosecutor

was going to follow through with the deals

he had promised them.

Free Standing Actual Innocence Claim:

Ex Parte Elizondo

, 947 S.W.2d 202 (Tex.

Crim. App. 1996)

Applicant must show, by clear and

convincing evidence, that newly

discovered or newly available evidence of

actual innocence unquestionably

established innocence.

•

Newly discovered evidence is evidence

that was not known to the applicant at

the time of trial and could not have been

known to him even with the exercise of

due diligence.

Ex Parte Brown

, 205 S.W.3d 538

(Tex. Crim. App. 2006)

•

Newly available evidence is evidence that

may have been known to the applicant but

was not available for his use based on

factors beyond his control.

Ex Parte Calderon

, 309 S.W.3d 64

(Tex. Crim. App. 2010)

•

Court must examine the new

evidence in light of the

evidence presented at trial

•

To grant relief court must

believe that no rational juror

would have convicted in light

of the newly discovered

evidence.

Applies to:

•

DNA

•

New Scientific Evidence

•

Recantations

•

New Witnesses

•

Other New Evidence



Ex Parte Thompson

, 153 S.W.3d 416

(Tex. Crim. App. 2005)

Complainant, daughter of Applicant,

provided affidavit and testimony stating

that sexual abuse never occurred.



Trial court found recantation credible



Expert witness testimony supported the

recantation

Ex Parte Tuley

, 109 S.W.3d 388 (Tex.

Crim. App. 2002)



Recantation after guilty plea.



Actual innocence claims are not

barred by guilty plea.



2015 – 68 out of 157 nationwide were

cases where defendant pled guilty.

Complainant’s recantation

alone insufficient to prove

actual innocence.

Court considers entire record in

assessing actual innocence

based on recantation, even if

recantation itself is credible.



Defendant actually innocent of duty

to register as a sex offender.

Ex Parte Harbin,

297 S.W.3d 283 (Tex. Crim. App. 2009)



Defendant not actually innocent of

duty to register as a sex offender

Ex parte Wahlgren

,

2017 WL 1496966

(Tex. Crim. App. 2017)

•

Cacy convicted of an arson murder

based on false lab report that

claimed there was gasoline on her

uncle’s clothing.

•

Trial Court finds Cacy is actually

innocent.

•

Court of Criminal Appeals Agrees



Kristie Mayhugh



Elizabeth Ramirez



Cassandra Rivera



Anna Vasquez

Ex parte Mayhugh

,

512 S.W.3d 285

(Tex. Crim. App. 2016)



Found actually innocent by Court of

Criminal Appeals on November 23,

2016



Two young girls testified that the four women

sexually assaulted them



One of the girls, now an adult, recants

accusations



Other girl does not recant



Recantation supported by expert testimony



State’s medical evidence, that one of the girls

had physical signs of abuse, is recanted by

doctor based on new science



Online solicitation of a minor statute

declared unconstitutional in 

Ex Parte

Lo

, 424 S.W.3d 10 (Tex. Crim. App.

2013)



Writs granted under 

Lo

 are not

“actual innocence” findings.  

Ex Parte

Fournier

, 473 S.W.3d 789 (2015)



Fournier

 actually engaged in the

conduct, so no new evidence of

innocence.

•

The term “actual innocence”

only applies in circumstances

where the accused did not

actually commit the charged

offense or any possible lesser

included offense.

•

Subsequent lab testing on drug

case showing no drugs does not

prove actual innocence.

Schlup v. Delo

, 513 U.S. 298 (1995)

•

Actual innocence itself does not

provide basis for relief

•

Actual innocence is used as a gateway

to raise otherwise barred claims

•

Lower burden on applicant:  requires

preponderance of the evidence

instead of the clear and convincing

evidence standard on freestanding

actual innocence claim

Art. 11.07, Sec. 4(a)(2), C.C.P.

allows subsequent writ when, “by

a preponderance of the evidence,

but for a violation of the United

States Constitution, no rational

juror could have found the

applicant guilty beyond a

reasonable doubt.”

QUESTION: HOW SHOULD

COURTS RESPOND TO

CHANGES IN SCIENCE

UNDERLYING CONVICTIONS



Art. 11.073.  Procedure Related to Certain

Scientific Evidence.

(a)

This article applies to relevant scientific evidence that:

(1)    was not available to be offered by a convicted person at

the convicted person’s trial; or

(2)    contradicts scientific evidence relied on by the state at

trial:

(b)

A court may grant relief if . . . :

(A)

relevant scientific evidence is currently

available  and was not available at the time of the convicted

person’s trial because the evidence was not ascertainable

through the exercise of reasonable diligence by the

convicted person before the date of or during the convicted

person’s trial; and

(B)  the scientific evidence would be

admissible under the Texas Rules of Evidence . . . ;

and

(2)

the court . . . finds that, had the

scientific  evidence been presented at trial, on the

preponderance of the evidence the person would

not have been convicted.

(c)

For purposes of a subsequent writ, a claim or

issue  could not have been presented in a

previously considered application if the claim or

issue is based on relevant scientific evidence that

was not ascertainable through the exercise of

reasonable diligence by the convicted person on or

before the date on which the original application or

a previously considered application , as applicable,

was filed.

(d)

In making a finding as to

whether relevant scientific evidence

was not ascertainable through the

exercise of reasonable diligence on or

before a specific date, the court shall

consider whether the field of scientific

knowledge, a testifying expert’s

scientific knowledge, or a scientific

method on which the relevant

scientific evidence is based has

changed since . . .



Ex parte Robbins

, 360 S.W.3d 446

(Tex. Crim. App. 2011)

Court concluded that Robbins “failed

to prove that the new evidence

unquestionably establishes his

innocence.”  Actual innocence claim

rejected



Despite all experts agreeing that Dr.

Moore’s findings and testimony were

incorrect, majority refused relief

because none of the experts

affirmatively proved that “Tristen

could not have been intentionally

asphyxiated.” Majority concluded

Robbins did not “have a due process

right to have a jury hear Moore’s re-

evaluation.”



Robbins case reconsidered under

Art. 11.073 and relief granted

Medical Examiner’s reconsideration

of her opinion was new scientific

evidence that contradicted scientific

evidence relied upon by the state at

trial.

•

Relief granted under 11.073 to four

defendants, three who pled guilty

to sexual assault, and one who was

convicted of capital murder

•

Y-STR DNA testing results were

exculpatory to all four defendants

and constitute new scientific

evidence

A showing by a mere preponderance

of the evidence that an applicant

would not have been convicted if

exculpatory DNA results are obtained

is not sufficient to warrant relief on

the basis of actual innocence, but

statute governing procedure on new

scientific evidence (Art. 11.073)

affords an avenue for relief under the

preponderance standard.



Child dies of head injury.



Henderson says she dropped child.



Medical Examiner testified that it was

impossible for child’s brain injuries to

have occurred in the way Henderson

stated.  Medical Examiner says child’s

injuries resulted from a blow

intentionally struck by Henderson.



Henderson submits evidence that

recent advances in biomechanics

suggest that it is possible that

child’s head injuries could have

been caused by an accidental short-

distance fall. Additionally, Medical

Examiner submitted an affidavit

which recanted his testimony.



Court finds new scientific evidence

shows that a short distance fall

could have caused the head injury.



Court finds new scientific evidence

did not establish that Henderson

was actually innocent but that it

did establish a due process

violation.



Due process violated by state’s

unknowing presentation of perjured

testimony in murder prosecution.

Ex Parte Chabot, 

300 S.W.3d 768

(Tex. Crim. App. 2009).

Ex Parte Chavez

, 371 S.W.3d 200 (Tex.

Crim. App. 2012) (false testimony that

defendant was shooter in aggravated

robbery case is violative of due process)

Ex parte Ghahremani

, 332 S.W.3d 470

(Tex. Crim. App. 2011) (testimony of

child victim’s parents regarding

victim’s behavior after she was sexually

assaulted was false and violated due

process).