Agbeze, Ex Parte James

• Court: Texas Supreme Court
• Decided: December 11, 2015
• Docket: PD-1597-15
• Status: Published

Opinion

PD-1597-15 PD-1597-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/10/2015 7:59:20 PM Accepted 12/11/2015 12:37:59 PM ABEL ACOSTA NO. _____________ PD CLERK

IN THE

COURT OF CRIMINAL

APPEALS

OF TEXAS ___________________________________________

EX PARTE

JAMES AGBEZE Petitioner,

_________________________________________________________

Petition in Cause No. 1288928 from the TH 180 District Court of Harris County, Texas and the Court of Appeals for the 14TH District of Texas _________________________________________________________

PETITION FOR DISCRETIONARY REVIEW _________________________________________________________

TOM ABBATE 440 LOUISIANA ST, STE 200 HOUSTON, TX 77002 T: 713.223.0404 F: 800.501.3088 tom@tomabbatelaw.com SBOT # 24072501

ATTORNEY FOR PETITIONER December 11, 2015 IDENTITIES OF PARTIES AND COUNSEL

PETITIONER: JAMES AGBEZE

PRESIDING JUDGE: HON. CATHERINE EVANS 180th District Court Harris County Criminal Justice Center 1201 Franklin, 18th Floor Houston, Texas 77301 (713) 755-6344

HABEAS COUNSEL FOR STATE: MR. STAN CLARK Assistant District Attorney Harris Co. District Attorney’s Office 1201 Franklin, Ste 400 Houston, Texas 77002 (713) 755-5800

HABEAS COUNSEL: MR. TOM ABBATE 440 Louisiana, Ste 200 Houston, Texas 77002 (713)-223-0404

2 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2 INDEX OF AUTHORITIES........................................................................................................... 4 STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6 STATEMENT OF THE CASE....................................................................................................... 6 STATEMENT OF PROCEDURAL HISTORY ............................................................................. 8 QUESTION PRESENTED FOR REVIEW ................................................................................... 9 REASON FOR REVIEW ............................................................................................................... 9 The Law Regarding Appellate Review of 11.072 Habeas Generally.............................................. 9 Analysis ......................................................................................................................................... 10 PRAYER FOR RELIEF ............................................................................................................... 12 CERTIFICATE OF SERVICE ..................................................................................................... 13 CERTIFICATE OF COMPLIANCE ............................................................................................ 13 APPENDIX ................................................................................................................................... 14

3 INDEX OF AUTHORITIES Cases Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007) .......................................................... 9 Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)............................................................ 10 Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) ....................................................... 10 Ex parte Scott, 190 S.W.3d 672 (Tex. Crim. App. 2006) ............................................................... 9 Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ............................................................... 9 Statutes Tex. Code Crim. Proc. art. 11.072 .................................................................................................. 9

4 NO. _____________ PD

OF TEXAS

___________________________________________

Petition in Cause No. 1288928 from the TH 180 District Court of Harris County, Texas and the Court of Appeals for the 14TH District of Texas __________________________________________________________

PETITION OF DISCRETIONARY REIVEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS

James Agbeze, petitions the Court to review the judgment affirming The denial of his Application for Writ of Habeas Corpus Pursuant to Article 11.072 of the Texas Code of Criminal Procedure

5 STATEMENT REGARDING ORAL ARGUMENT

Oral argument would assist to resolve whether the evidence was legally

sufficient to support the conviction obtained against the Petitioner in this case.

STATEMENT OF THE CASE

During the investigation of the conviction at issue, Appellant was approached

by one of the investigators in this case, who solicited him for a bribe. Appellant was

informed that if the requested funds were provided, a report would be generated

allowing him to avoid prosecution for the crime at issue in this case. Appellant

refused to provide the bribe, and was then informed by the investigator that he would

face prison time for failing to do so.

Subsequently, Appellant was indicted for submitting a series of fraudulent

Medicaid reimbursement claims. The jury convicted Appellant of theft of property

by a government contractor with an aggregated value of $1,500 or more, but less

than $20,000, assessed punishment at seven years community supervision, and

imposed a $10,000 fine. The trial court ordered Appellant to spend 90 days in jail as

a condition of community supervision and to pay $18,169.45 in restitution.

On the appeal of the trial, Appellant argued that (1) there was insufficient

evidence to prove that he intentionally or knowingly committed theft or that

individual over-charges were part of a larger criminal scheme to allow the theft

amounts to be aggregated and tried as one offense and that (2) the trial court abused

6 its discretion in ordering him to pay $18, 169.45 in restitution. The Court of Appeals

denied Applicant’s grounds for relief and affirmed the judgment of the trial court.

Applicant then filed a Petition for Discretionary Review with the Texas Court of

Criminal Appeals, but was denied. Applicant’s subsequent Motion for Rehearing

was also denied.

During the pendency of the above appeals, the investigator in question was

indicted for bribery. The investigator entered a plea of guilty to the charge and was

convicted under the terms of a plea bargain.

Subsequently, Appellant filed the instant Application for Writ of Habeas

Corpus pursuant to Article 11.072 alleging that he was actually innocent of the crime

and that the state had committed a Brady violation by failing to disclose the

corruption of its investigator to trial counsel. After the submission of affidavits, the

habeas court entered findings of fact and conclusions of law dismissing Appellant’s

allegations and ordering that all requested relief be denied.

7 STATEMENT OF PROCEDURAL HISTORY

This is an appeal from the Habeas Court’s DENIAL OF RELIEF and

FINDINGS OF FACT AND CONCLUSIONS OF LAW in Appellant’s

APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO ARTICLE

11.072. Appellant filed a NOTICE OF APPEAL on MAY 7, 2015.

The court of appeals rendered its decision affirming Petitioner’s conviction

on November 5, 2015. Petitioner did not file a motion for rehearing, and the decision

of the court of appeals became its final ruling on November 20, 2015. This petition

was then filed with the clerk of the court of appeals within 31 days after such final

ruling.

8 QUESTION PRESENTED FOR REVIEW

Did the Trial Court abused its discretion in denying Appellant’s requested relief?

REASON FOR REVIEW

The Law Regarding Appellate Review of 11.072 Habeas Generally

"Habeas corpus is an extraordinary remedy and is available only when there

is no other adequate remedy at law." Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex.

Crim. App. 2007). Article 11.072 establishes the procedures for an applicant in

Appellant's situation to seek habeas corpus relief "from an order or a judgment of

conviction ordering community supervision." Tex. Code Crim. Proc. art. 11.072, §

1. The statute expressly provides that writ relief is not available "if the applicant

could obtain the requested relief by means of an appeal under Article 44.02 and Rule

25.2, Texas Rules of Appellate Procedure." Id. § 3(a).

An applicant for habeas corpus relief must prove his claim by a preponderance

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex

parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing

the trial court's order denying habeas corpus relief, the facts are viewed in a light

most favorable to the trial court's ruling. See Kniatt, 206 S.W.3d at 664. The

reviewing court will uphold the trial court's ruling absent an abuse of discretion. See

id.

9 Almost total deference is afforded to the trial court's determination of the

historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819

(Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis,

219 S.W.3d 335 (Tex. Crim. App. 2007). Likewise, the reviewing court will defer

to the trial court's application of the law to the facts, if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. See id.

Analysis

The habeas court abused its discretion in denying Appellant’s requested relief.

Appellant provided evidence sufficient to show that he was entitled to a new trial

based on theories of actual innocence and a Brady violation. Further, habeas counsel

reviewed all of the evidence provided by the state, and pointed out to the court that

the reports generated during the investigation of Appellant failed to detail, or even

mention, Nnadi’s involvement.

The habeas court, however, found the affidavit of Jesse Mack to be credible

despite the inconsistencies contained therein. Mack initially stated that Nnadi was

involved solely as an “observer since there was an investigative auditor assigned and

already working on the case.” Therefore, he was not listed as a participant in the

interview. Further, Mack stated that Nnadi did not have input as either an auditor or

investigator at any time.

10 However, Mack also stated that he and Nnadi met with Appellant at least twice

during the pendency of the investigation. Further, Mack stated that Nnadi did

participate in preparing for the trial of Appellant. Therefore, Nnadi’s involvement

was more than solely as an observer.

Finally, the criminal complaint and corresponding affidavit show that at least

the Federal Bureau of Investigations was aware of Nnadi’s corruption as far back as

2007, although it appears to have decided not to do anything about the matter until

2014.

Therefore, Appellant proved his allegations by a preponderance of the

evidence and the habeas court abused its discretion in denying the requested relief.

11 PRAYER FOR RELIEF

ACCORDINGLY, this Court should GRANT this PETITION FOR

DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the

question of whether the evidence against the Petitioner was legally sufficient to

support his conviction.

Petitioner further prays for all relief to which he may be entitled.

Respectfully submitted,

______________________________ TOM ABBATE 440 LOUISIANA ST, STE 200 HOUSTON, TX 77002 T: 713.223.0404 F: 800.501.3088 tom@tomabbatelaw.com SBOT # 24072501

ATTORNEY FOR PETITIONER

12 CERTIFICATE OF SERVICE

This is to certify that on the day of DECEMBER 8, 2015 a true and correct

copy of the above and foregoing Petition for Discretionary Review was served on

the Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston,

Texas 77002, by FAX (713.755.5809).

______________________________ TOM ABBATE

CERTIFICATE OF COMPLIANCE

I hereby certify that there are 1534 words contained in this document.

13 APPENDIX

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