D Other
Sincerely,
I aMc~. ~al-Post 1al puty
Enclosure(s)-
1201 FRANKLIN • P.O. Box 4651 • HOUSTON, TEXAS 77210-4651 • (888) 545-5577
PAGE I OF I REV: 01-02-04 F Chris I{ L E &use Daniel No. 1010324-A Dlctrlct Clork EX PARTE AUG 0 6 2015 § IN THE 228th DISTRICT COURT
DAMIEN LAMONT ALCORN, § · HARRIS COUNTY, TEXAS Applicant
STATE'S ORIGINAL ANSWER
The State of Texas, by arid through its Assistant · District
Attorney for Harris. County, files this, its original answer in the
. above-captioned cause, having been served with the original
application for writ of habeas corpus, pursuant to TEX. CODE CRIM.
PROC. art. 11.07 (West 2013), and would ·show the following:
L
The applicant is · confined pursuant to the judgment and
sentence of the 22Sth District Court of Harris County, Texas, in
cause number 1010324 (the primary case), where the applicant was
convicted by a jury on November 23, 2005 for the felony offense of
capital murder. The jury assessed the applicant's punishment at ·"
confinement for life in the Texas Department of Criminal Justice -
Corrections Institutions Division (TDCJ-ID).
The Fourteenth Court of Appeals delivered an unpublished
memorandum opinion affirming ·the applicant's conviction in the
primary case on February 27~ 2007. Alcorn v. State, 14-05-01195- . CR, 2007 WL 582292 (Tex. App. - Houston [14th Dist.] February 27,
2007, pet. ref d.).
II.
The State denies the factual allegations made in the instant
application, except those ·supported by official court records, and
offers the following additional reply:
Reply to the Ap_plicant's First _and Second Grounds for Relief
In his first ground for relief, the applicant alleges that the
State withheld Brady information . Applicant's . Writ at 6-7.
. Specifically, the applicant claims that the State withheld phone
records of the applicant's acc;omplice that· the State received several
months before trial. ld
2 .•
In his second ground for relief, the applicant alleges that the
State committed· prosecutorial misconduct when it used perjured
testimony. Applicant's Writ at 8-9 Specifically, the applicant claims
that a State's witness lied when she testified that her husband sold
or gave a gun to the applicant. ld
Brady Violation
Under Brady v. Maryland, 373 U.S. 83 (1963), the State is
required to provide a defendant with any exculpatory evidence that
is favorable and material. When alleging· a Brady violation, the
applicant has the burden of showing that:. 1) the prosecutor failed
to disclose evidence; 2) the evidence was favorable to the applicant;
and 3) the evidence was material, such that there is a reasonable
probability that, had the evidence been disclosed to the defense,
the outcome of the trial would have been different. Ex parte Kimes,
872 S.W.2d 700, 702-703 (Tex. Crim. App .. 1993).
In .the instant claim, the applicant fails to demonstrate that this
information was withheld from the defense. The . applicant shows
3 records that existed in 2005, but has not shown that trial counsel
was not aware of these records. Furthermore, he fails to show how .
or that these records are exculpatory. Finally, the applicant fails to
demonstrate materiality such that there is a reasonable probability
that, had trial counsel known of the records (assuming arguendo
that counsel was not aware of the records), the outcome of the
trial would have been different. Ex parte Kimes, 872 S.W.2d 700,
702-703 (Tex. Crim. App. 1993).
Prosecutorial Misconduct
. A prosecutor's active or pass1ve use of perjured testimony
violates a defendant's right ·to due process. Ex parte Castellano,
863 S.W.2d 476, 481 (Tex. Crim. App. 1993), citing Mooney v.
·.Holohan, 294 US. 103, 55 S.Ct. 340 (1935). Such violation occurs
whenever the pro·secutor has actual or imputed knowledge of the
perjury which is material to the conviction. Ex parte Castellano at
.481, 485. The State commits a due process violation when (1) the
State presents false testimony, (2) the State knows or has reason to
4 know that the testimony was false, and (3) the false testimony is
material. Furthermore, the prosecutor must correct a false
impression, including those that do not amount to perjury, left by a
witness. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763
(1972); Napue v.· Illinois, 360 U.S. 264, 269, 7.9 S.Ct. 1173 (1959);
Alcorta v. Texas, 355 U.S. 28, 32, 78 S.Ct. 103 (1957).
A charge of perjury is a serious accusation and must· be
clearly supported by the evidence. Haywood v. State, 507 S.W.2d
756, 760 (Tex. Crim. App. 1974). A defendant bears the burden of
showing that ·testimony used by the State was perjured. Luck v.
State, 588 S.W.2d 371, 373 (Tex. Crim. App. 1979) (op. on reh'g);
Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983). ,Even if
conflicting testimony is presented, that fact alone would not indicate
perjury. Losada v. State, 721 S.W.2d 305, 312 (Tex. Crim. App.
1986); Brown v. State, 477 S.W.2d 617, 623 (Tex. Crim. App. 1972).
In this case, the applicant fails to meet his burden of showing that
the testimony that forms the basis of his complaints amounts to
5 perJury. The applicant merely highlights conflicts between his own
testimony and that of a State's witness.
Conflicting testimony is resolved by the fact finder - 1n this
case, the jury. ·Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App.
1986). The jury . may accept all, part, or none of any witness's
testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App.
[Panel Op.] 1981). It is the jury's job to judge the credibility of the
witnesses, and to decide the weight given to each witness's testimony.
Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim. App. 1974)
(abrogated on other grounds). The jury may resolve or reconcile any
conflicts in testimony as they see fit. /d When evidence exists that
both supports and conflicts with the jury's verdict, the courts must
assume that the fact finder resolved such conflicts in favor of the
verdict rendered. Turro v. State, 856 S.W.2d 43, 47 (Tex. Crim. App.
1993). That is exactly 'what happened in the instant case - the jury
resolved the conflicts in the testimony in favor of a guilty verdict.
6 Furthermore, trial counsel had· the opportunity to cross-examine
the witness during trial. The jury thus had the opportunity to
consider the testimony of all witnesses. All of the alleged conflicts in
evidence were ·before the jury for its consideration, both for
substantive and credibility purposes.
The applicant fails to demonstrate that the State . knowingly
relied upon false statements. For all these reasons, the applicant's
first and second grounds for relief are without merit, and should be
denied.
Reply to the Applicant's Third Ground for Relief
The applicant all~ges in his third ground for relief that there IS
no evidence, other than uncorroborated accomplice testimony, to
support his conviction. Applicant's Writ at 10-11.
On appeal, the applicant raised four grounds for relief:
1. That the evidence was not sufficient to support his conviction,
as it relied solely on the testimony of a person the applicant
feels should have been designated an accomplice to the crime;
7 2. That the co-defendant's refusal to .testify and invocation of his
. Fifth Amendment. right was improperly imputed to the applicant,
unfairly prejudicing the applicant;
3. That the trial court erred by admitting eviden·ce of the
applicant's extraneous offenses and bad acts via a third party's
testimony;· and
4. That the trial court erred by admitting evidence . of the
applicant's extraneous offenses and · bad acts via the
applicant's recorded statement to police.
See Alcorn v. State, 14-05-01195-CR, 2007 WL 582292 (Tex. App. -
Houston [14th Dist.] February 27, 2007, pet. refd.).
In its decision, the Fourteenth Court of Appeals found that "the
trial court correctly gave the jury the responsibility of determining
whether [the State's witness] was an accomplice," and overruled the
applicant's first issue on appeal. Alcorn. v. State, 14-05-01195-CR, ·
2007 WL 582292 at *1-*4. The Court of Appeals· specifically noted
that mere presence, knowledge, failure to disclose, and concealment
8 of a crime do not make an individual an · accomplice." /d (citing
, Maynard v. State, 166, S.W.3d 403, 411 (Tex. App. - Austin 2005,
pet. refd).
The Fourteenth Court of Appeals also addressed the applicant's
claim that the trial court erred by allowing the State to grant use
immunity to his accomplice. Specifically, the (ourt of Appeals noted
that the trial court advised the accomplice that. he could not invoke
his Fifth Amendment right to remain silent: because he had been
granted use immunity. Alcorn v. State, 14-05-01195-CR, 2007 WL
582292 at· *4. ·Despite the court's admonishment, the accomplice
. refused to testify, so the triaL court held the accomplice in
contempt of court - ten times. ld; States Writ Exhibit A, Judgment
of Contempt and Commitment Order in cause number 1047601;
States Writ Exhibit B, Judgment of Contempt and Commitment
Order in cause number 1 047602; States Writ Exhibit C, Judgment of
Contempt and Commitment Order in cause number 1 047603;. States
Writ Exhibit D, Judgment ·of. Contempt and Commitment Order in
9 _;
....
cause number 1047604; State's Writ Exhibit· E, Judgment of
Contempt and Commitment Order in cause number 1047605; State's
Writ Exhibit F, Judgment .of Contempt and Commitment Order in
cause number . 1 047606; · State's Writ Exhibit G Judgment of
Contempt and Commitment Order in cause number 1047607; State's
Writ Exhibit H, Judgment of Contempt and Commitment Order in
c;ause number 1047608,· State's Writ Exhibit/, Judgment of Contempt
and Commitment Order in cause number 1047609; and State's Writ
Exhibit J, Judgment of Contempt and Comm/tment Order in cause
number 1047610. · The Court of Appeals held that the applicant was
· not unfairly prejudiced by the. accomplice's invocation of his own
Fifth Amendment right to remain silent.
The Court of Appeals further held that the applicant failed to
preserve error by failing to object in a timely manner in his claim
that the trial. court abused its discretion when it allowed a witness
to testify about the applicant's extraneous offenses and prior bad
acts. Alcorn v. State, 14-05-01195-CR, 2007 WL 582292 at *4-*5 ..
10 ' '
Finally, the Court of Appeals, without specifically finding error,
held that the applicant was not harmed by the trial court's
admission of evidence of the applicant's extraneous offenses and
prior bad acts via the applicant's recorded statement with the police.
Alcorn v. State, 14-05-01195-CR, 2007 WL 582292 at *5-*6.
Issues raised and rejected on direct appeal need not be
considered on habeas. Ex parte Acosta, 672 S.W.2d 470, 47Z (Tex.
Crim. App. 1984). The Court of Appeals has addressed the
applicant's third ground for relief directly. Because the applicant's
third ground for relief was raised .and rejected on direct appeal, that
issue need not be considered in the instant writ · proceeding or 1n
any subsequent proceeding. Ex parte Acosta, 672 S.W.2d at 47-2.
Reply to the Applicant's Fourth, Fifth, and Sixth Grounds for Relief
The applicant alleges in his fourth ground for relief that the
trial court erred by denying his motion to find that the State's witness
was a party to the offense. Applicant's Wnt at 12-13
11 In the applicant's fifth ground for relief, he complains that the \
trial court . erred by allowing the State to grant his accomplice use
immunity. Applicant's Writ at 14-15
·In his sixth ground for relief, the applicant complains that the
trial court erred by failing to instruct the jury that a witness's
testimony may be tainted if that witness 1s compensated.
Applicant's Writ a( $16~$171. ·
Claims of trial court error· are generally record claims which
are required to be raised in the trial court and on direct appeal.
An application for writ of habeas corpus may not be used to litigate
matters that could have been raised on direct appeal. Ex parte
Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004); Ex parte
Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App~ 2004). "Record
claims " which could have been but were not presented in the trial
court or on direct appeal should not be considered on habeas. Ex
1 The applicant's writ memorandum uses pages "14" and "15" repeatedly to complete his w··rit application. In order to avoid confusion for the purposes of this answer, the State will designate the page after the first page 14 and page 15 of the writ application as page 16, and· continue thereon.
12 parte .Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996) (op.
reh'g). Because the applicant's claim of trial court error is a record
claim, it should not be considered on habeas.
For all these reasons, the applicant's fourth, fifth, and sixth
grounds for relief are without merit and should be denied.
Reply to the Applicant's Seventh and Eighth Grounds for Relief
In his seventh and eighth · grounds for relief, the applicant
complains of ineffective assistance of counsel. Specifically, the
applicant claims that counsel failed to:
1. object to the prosecutor referring to the identity of the
applicant's accomplice because the. applicant had not yet
been identified as having been at the scene;
2. object to the admission of the applicant's accomplice's
criminal history;
3. object to hearsay testimony of "witnesses;"
4. investigate;
5. interview witnesses; and
13 6. object to illegally seized evidence. ·
Applicant's Writ at 18*-21~
The United States Supreme Court held in Strickland v.
Washington, 466 U.S. 668, 686 (1984), that the benchmark for
judging any claim of ineffective assistance of counsel is whether
counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied upon as having ·
produced a just result. The Court in ·Strickland set forth a two-part
standard, which has been. adopted by Texas. See Hernandez v.
State, 726 S.W.2d 53, 57 (Tex. Crim. App .. 1986). First, the
defendant must prove by a preponderance· of the evidence that
counsel's · representation fell below an objective standard of
reasonableness. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.
App. 2002); Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App.
1992) (citing Strickland v. Washington, •466 U.S. at 688). Reasonably
effective assistance of counsel does not require error-free counsel,
or counsel whose competency is judged . by hindsight. ·Mercado v.
14 State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981). Second, there
must be a reasonable probability that, but for counsel's
. unprofessional errors, the result . ofI the. proceeding would have been . different. /d A ."reasonable prdbability" is "a probability sufficient
· fid . · h to un derm1ne con .I ence 1n t e outcome. I j . tu.,_, . II
Article . I, Section 10 of thJI. Texas Constitution also requ1res I that a criminal defendant receiVe effective· assistance of counseL · I However, the Texas constitutio~al provision does not create a II standard that is more · protective j of a defendant's rights than that I
established 1n Strickland Black ¢ State, 816 S.W.2d 350, 357 (Tex. I Crim. App. · 1991) (citing Hernandez v. State, 726 S.W.2d 53 (Tex. I
Crim. App. ·1986)).. Therefore, an ~nalysis of \:he effectiveness of the . I . . . _applicant's trial counsel in thej primary case pursuant to the I . .
Strickland standard satisfies both the federal and state constitutional I I requirements. I The court will not use hindsight to . second-guess a tactical I decision made by trial counsed nor will. the fact that another
15 ..
attorney might have pursued a different course support a finding of
ineffectiveness. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App.
1990); 8/ott v. State, 588 S.W.2d ·588, 592 (Tex. Crim. App. 1979).
When evaluating an ineffective assistance claim, the reviewing court
looks at the totality of the representation and the particular
circumstances of the case. See Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999). In reviewing counsel's performance, the
court indulges a strong presumption tha~ he acted within the wide
range of reasonable professional assistance. ld
Failure to· Object
The applicant complains that trial counsel failed to object to: .
7. the prosecutor referring to the identity of the applicant's
accomplice because the applicant had not yet been
identified as having been at the scene;
8. the admission of the applicant's accomplice's criminal
history;
9. hearsay testimony of "witnesses;"
16 10. illegally seized evidence.
Applicant's Wnt at 18*-21 ~
To show ineffective assistance of counsel for failure to object,
the applicant must show that the trial court would have either
sustained the objection or that he would have committed error in
overruling the objection. Ex pane White, 160 S.W.3d 46 (Tex. Crim. ·
App. 2004); Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996).
Furthermore, an isolated failure to object generally does not in itself
constitute ineffective assistance. Bridge v. State,. 726 S.W.2d 558
(Tex. Crim. App. 1986).
Failure to Investigate
The · applicant alleges that counsel failed to conduct an
adequate investigation, and failed to interview witnesses. · Applicant's
Writ at 18*-19~
The defense counsel has a duty to make a proper
investigation and prepare for trial. Ex pane Dunham, 650 S.W.2d
825 (Tex. Crim. App. 1983). In order to succeed on a claim of
17 ineffective assistance of counsel for failure to investigate, an
applicant must show what a more in-depth investigation would have
revealed. Mooney v. State, 817 S.W.2d 693 (Tex. Crim. App. 1991).
Furthermore, the applicant must show how the alleged inadequate
preparation affected the outcome of the trial. Ex parte Walker, 777
S.W.2d 427 (Tex. Crim. . App. 1989). Moreover, even assuming
arguendo, that defense · counsel limited his investigation, an . I
attorneys decision may· be reasonable under the
circumstances. Harris v. Dugger, 87 4 F2d 756, 763 (11th Cir.), cert.
denied, 110 S.Ct. 573 (1989); Butler v. State, 716 S.W.2d 48, 54
The applicant fails to show what further investigation by
counsel would have revealed, nor how counsel's alleged inadequate
investigation affected the outcome of the instant case. The
· applicant also fails to allege what, if any, witnesses counsel should
have interviewed. The applicant presents nothing more than
conclusory allegations that counsel .failed to investigate, which, even
18 .:io
if sworn to, do not overcome the State's denial and do not warrant
habeas relief. Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App.
1967); Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).
.·The applicant also fails to show how counsel's failure to investigate
rendered his representation· ineffective. Thus, the applicant fails to
meet his requisite burden, and these aspects of the applicant's
claims of ineffective assistance of counsel are without merit, and
should be denied.
Nevertheless, and without waiving the foregoing arguments, the
resolution requires info.rmation concerning trial counsel's strategic
decisions, and confidential communications with the applicant.
Therefore, the State believes that further factual investigation is
necessary to determine the merit, if any, to the applicant's
ineffective assistance of trial counsel claim.
Ill.
·The trial court has already designated the 1ssue of ineffective
assistance of counsel as an issue that needs to be addressed. The
19 State respectfully requests that the trial court order Randolph
McDonald to file an affidavit addressing the instant allegations of
ineffective assistance.
IV.
Service has been accomplished by sending a copy· of this
instrument to the following address:
Damien Lamont Alcorn ., #1339759 - Stiles Unit 3060 FM 3514 Beaumont, Texas 77705
SIGNED this 6th day of August, 2015 ..
ores Assistant District Attorney Harris County, Texas 1201 Franklin, 6th Floor Houston, Texas 77002 (713) 755-6657 (713) 755-:5240 (fax) Texas Bar ID #24059760
I. Certificate of Compliance as Required by Tex. R. App. 73.3 .
The State of Texas, through its Assistant District Attorney for ·
Harris County, files this, its Certificate of Compliance in the above-
captioned cause, having been served with an application for writ· of
habeas corpus pursuant to Tex. Crim. Proc. Code art. 11.07 § 3. The
State certifies that the number of words in the State's Answer is
3,059.