Duke, James A. AKA James Albert Duke

Opinion

C//zné;

Mr.Jam\es A‘lbert Duke 3 ( TDCJ# 11884#8/Eastham 2665 prison Rd.#1

Uoveiady,Texas 75851

August 2a,2015

Hon.Abel Acoeta,Elerk

'Texas Court of Briminal Appeals P,D.Box 12308§Capitol Station Austin,Texas 78711

RE: The State of Texas V. Jadee Albert Duke,Case No.wR-37,21h-Dh, Mamorandum In Support of Applioation for writ of Habeas Borpus Art;11.07:Trial Court-No.BE?1,Trinity County,Texaa:

Dear Hon.Acosta:

The purpose of this inquiry in to file Applicant's Memorandum of Uau in the above cause No.UR-37.21h-Dh enclosed.- '

Please inform applicant of any movement`by the court

in this request for relief¢

I thank you for your time and assistance. I await your response. I Remain.

5 ncerely,

Oe- O/J=e

James Albert Duke , oc/jpa/pla enclosure

/ RECE\VED lN U.__U_/__‘___/l 37 `D-l\{ QHURTo=cR\MlNALAPpEALS

IN THE TEXAs ' SEP012[115

EDURT UF ERIMINAL APPEALS AUSTIN,TEXAB

Abe| Acosta, Clerk EX PARTE ` X IN THE DISTRIET EUURT X TRINITY EUUNTV;TEXAS JAMES ALBERT DUK-E,l v - X' h11th JUDIEIAL DISTRIET

MEMDRANDUM IN SUPPDRTIUF APPLIBATIUN FUR 'MRIT UF HABEAS'CURPUB SEEKING RELIEF FRUM FINAL FELUNY EDNVICTIDN UNDER ARTIELE 11.07 AND 11.073 TEXAS CUDE DF'CRIMINAL PRDEEDURES

TU THE HUNURABLE UUDEES'DF THE EUURT UF ERlMINAL APPEALS:

NDhl EUMES, James Albert Duke,Applicant,and submits this Memprandum in support of Applieationnfor writ pszabeas Eerpus seeking relief from final Felpny_convietipn under Artiele 11107 and'11.0§3 Texas dee of Eriminal Procedures and would show this Honerable Court the Fellpming;

l I. JURISDlCTIUN

Thia Hdndrable Court has jurisdiction over the parties and the Extraordinary Matters pursuant to Art.11.07,8upra of the Texaa Epde cf Criminal Prpcedures¢

-II. CUNFINEMENT AND‘RESTRAINT

Applicant was convicted of Aggravated'Assault in this case and sentenced to Bé.years in prison,is being unlawfully confined and restrained of his liberty by william Stephens;acting in his Ufficial Bapacity as Directer of the Texas Department'of Eriminal Justiee Eorrectipnal

Inatitutional Division (TDEJ-CID),at the Eastham Facility situated at

2665 Prison Rd;#1;LoVelady,Texas 75851;for Aggrayated Assault in case No.5671 of the h11th District Eourt,Trinity'County,Texas pursuant to Art.11.22.of the Tsxas Eode of Eriminal Procedure'this'Eourt has the jurisdiction or all grounds presented.

III. ERUUNDS FUR RELIEF

ERUUND NUMB ER DNE:

'APPLIEANT'S AETUAL INNBEENEE CLAIM, A SBHLUP- TYPE ELAIM, 15

A PRUCEDURAL ELAIM UHIEH APPLIEANT'S DLAIM UF INNUEENEE DBE5 NUT PRUVIDE A BASI5 FUR RELIEF, BUT 15 TIED TU A SHDMING BF EUNSTITUTIUNAL ERRBR AT TRIAb ANB UN APPEAL DUE TD INEFFEETIVE EUUNSEL IN VIULATIUN DF THE U. 5. EUNST AMEND5 VI AND XIV: THAT HAVE PRDBABLV RESULTED IN A MISEARRIAEE BF JUSTIEE.

GRUUND NUMBER TMU: APPLIEANT RECEIVED INEFFEETIVE ASEISTANCE UF EDUNSEL AT TRIAL IN VIULATIDN BF THE TE XAS EUNSTITUTIUN AND THE U. 5. EUNST AMEND5 VI AND XIV.

ERUUND NUMBER THREE: APPLIEANT RECEIVED INEFFEBTIVE A5515TANEE UF CDUNSEL UN

DIRECT APPELLATE REVIEM.INHTHE VIBLATIUN UF THE TEXAB EUNSTITUTIUN AND U.B.EUNST AMENDS VI AND XIV. `

IV. STATEMENT EF THE CASE

Applicant,§ames Albert Duke,pleaded guilty to aggravated assault with a deadly weapon and true to two Felony convictions for driying while intoxicated. A jury assessed punishment at 85 years confinement. Un appeal,Applicant contented that the trial court erred in excluding evidence of the oomplainant's criminal background and in denying his challenges For cause. The appellate court affirmed the conviction, Applicant petition For discretionary review was refused.

2.

Applicant`filed a 5tate Application for writ of habeas corpus which was denied 5eptember`27,2i06.

v. 'FAcTs;oF THE cAsE

The offense for which Applicant stands oonvicted_occurred on August B,ZUUZ in Trinity County,Texas,' n

lt was alleged that on August B,ZDDZ,Applicant was living at Ed's Marina in Trinity Bounty,Texas `SSs (ER-V.S,Pgs,§&,ES,BT) Easey 5izemore used to live at Ed's Marina and_eame back and~visited.sften.(ER-V,B.PQ 195).

while there,Sizemore threatenedepplicant;severe y frightened g Applicant SeE,(ERjV,B.Pgs`116,155,170,173),After threatening Applicant 5izemore drove his car under a pecan tree where 5izemore had a direct view of Applicant's home and continued to intensely stare at Applicant and Applicant's home further intimidated'Applicant.5ee:(ER-VlZ,PgS`172-173).

Applicant felt the only way to remain safe from 5izemore was.to get Sizemore to leave the Marina. DUE to Applicant's fear,he decided tov confront 5izemore and get Sizemore to leave'Ed!s_Marina{ Furthermore, due to his fear of 5izemore,Applicant.armed himself with a knife when her went to try to get 5izemore to leave Ed's Marina-See (ER-V.§,Egs 173-T7A).

During the confrontation between 5izemore and Applicant,Sizemore pushed Applicant_and Applicant used the knife against 5izemore See (ER-V,Pg~174) when Applicant used the knife during the confrontation it resulted in 5izemore's injuries and 5izemore later died due to then lack of medical treatment 5ee (CR-V.Z,Pgs,h1»h2).

. Applicant was indicted for both Murder and Aggravated Assault.

.At trial,the 5tate abandoned the Murder count and only proceeded on the aggravated assault count.Applicant plead guilty to'the aggravated assault.

3.

count and true to the enhancement paragraphs.Punishment was then tried by the jury.

vI. ARGUMENTS

GRUUND NwMBER UNE: _ APPLICANT'S_ACTUAL INNBCENEE EEAIM,A BEHLUPsTVPE'ELAIM,IS A PRUEEDURAE ELAIM wHIEH AEPMIEANT'B ELAIM’UF INNUEENEE DUE5 NUT.PRUVIDE A BASIS FGR'REEIEF,BUT IS TIED TD AlSHleNG UF CUNSTITUTIUNAE.ERRUR"AT TRIAL AND_UN APPEAt_DUE-TU INEFFEETIVE EIUNSEE IN'VIUUATIDN IF THE U;S.EBNST`AMENDS VI`AND XIV:THAT HAVE PRDEABEY RESULTED IN A MISEARRIAGE DF JU5TIEE.

' There are two types of actual innocence claims that may be raised in a collateral attack on a conviction. A bare innocence-claim,or' Herrera-type claim "involves a_substamtive claim in which applicant asserts his bare claim of innocence‘based.solely on newly discovered- evidence;" Ex Parte'Franklin,?Q 5.w,5d.671,675 (Tex.ErimrApp ZUUZ) (citing 5chlup V.Delo5531 U.S. 2953314,130“U.Ed 2d'505,f15f5.€t 851 (1995);'Elizondo;§h?'$}w.Zd'at`ZDB)).`The_other actual innocence claim,

a 5chlupsType'claim;we explained'"is'a procedural claim in which Applicantls claim of innocnece does not provide a basis for relief;but is tied to a showing of Constitutional Error at trial" ibid,(citing,$chlup,513 U.S. .at 314); d

Applicant's Constitutional Elaims are based on the claims of lneffective'.i Assistance of Counsel at Trial and on Appellate Review as follows{

Generally,a habeas petitioner must show cause and prejudice before a court will reach the merits of a successive,abusive,or defaulted claims.

Even if he cannot meet this standard,a court may hear the merits of such

u.

claims if failure to hear them would result in.a "Fundamental Miscarriage of Justice". Applicant's claims applies under the standard based on his

(New Elaims) not previously raised which constitutes an abuse of the writ. under, McEleskey V.Zant,h99 U.5.467,111 S.Ct 145#,113 L.Ed.2d 517 (1991). -The Fundamental Miscarriage of Justice exception applies where a petitioner` is "Actual lnnocent“ of the crime of which he was convicted or the penalty

which was imposed. See,e.g.Kuhlmann'V.wilson,h77 U,S.LEE,TUE 5-Et 2616,Id.

1). Applicant was denied his Eonstituional,Right to effective counsel

to research the law of this case and advance (Applicant‘s) only defense of justification of necessity,or self~defense;and or self-defense apparent danger,after Applicant (Admits) to the offense_of`Aggravated Assault under Section 22.52-of the Texas Penal`Eode,and through Applicantls own testimony raised a defense in this case under 5ections 9.0239,22,and 9;31 of the Texas Penal Code;denied Applicant a fair trial,a'fundamental error;

(See;ER,In Ground of Error Number Une)-

2).` Applicant was denied his Constitutional Right to effective counsel to object to the Eourtfs‘charge to the jury to preserve any error for .(Appellate Review) as required by (Texas Law) under_Art.ZE;lh of the Texas Eode of Eriminal Procedure;denied Applicant's.Right of preserving the error.for Appellate Review under Rule 33.1 of the Texas Rule of AppellateVProcedure;denied Applicant.a fair trial.a_fundamental error, and Eonstitutional Violation-under theyVI and XIV Amends of Texas and

United 5tates.(5ee.ER,ln Eround of Error Number Two).

3). Applicant was denied his Eonstitutional Right to effective counsel of failure to request a jury instruction that the Court charge the jury

5.

on th law of justification of necessity-of self-defense,and or self-defense apparent danger,raised by the evidence of Applicant's own testimony under 5ection 9.31 of the Texas Penal Eode,precluded the jury from giving effect to the Applicant’s only viable defense,denied Applicant a fair trial,a 'fundamental_error,and in violation of the Texas and United 5tates

Bonstitution VI and XIU Amendments. id Eourt Records.

cDNSTITUTIUN VIILATIBN“UF.INEFFEBTIVE CUUNSE£.@N DIREET_APPEAL:

4). Applicant was denied his Eonstitutional Right te effective Appellate Counsel of Eounsel's failure to raise an issue arguingithat trial Eounsel were ineffective in failing to ; 1).Research the'law available in this

case and advance the law regarding Applicant's only defense of justification of necessity of self-defense,or and self-defense apparent danger.; 2). Ubject to the charge by the Eourt to the jury to preserve'the asserted error for Appellate review.;$).'Reguest a jury instruction that the Court‘s charge charge the jury on the law of justification on necessity af self-defense,

or and self-defense apparent danger that precluded the jury from giving effect to Applicant's only defense Constituted Ineffective Assistance of -Eounsel on Appeal in Violatien of the Texas Constitution and U.'S.Const_v

'VI and XIV Amendments.

5). Applicant was denied his Constitutional Right to effective Appellate Counsel where Eounsel was Ineffective on direct aepeal when Bounsel presented a ELAIM of arguable merits of victim's character evidence is allowed,and (Affirmatively) argued against_Applicantls case,that the

trial Eourt should have allowed testimony from witness,Julie Loitz,about

the victim's

prior convictions of drug charges,and Counsel relied upon Article 35.36 of `the Texas Eode of Criminal Procedure. This statutory provision only applies to (Murder) prosecutions. Applicant plead guilty to the charge of

Aggravated Assault with a deadly weapon under 5ection-22.02 of the Texas Penal Bode,Eonstituted lneffective Assistance of Eounsel on Appellate Review in Violation of the Texas Eonstitution and United 5tates Eonst.VI and XIV Amends,a fundamental miscarriage of justice. (5ee§CR,ln Ground of Error No.

Two,and Appellatels Brief In Case No.Dl-UJ-Ul§llB-CR).

cRUuND NuMsER Two: APPLIEANT RECEIVED'INEFFEETIVE ASSISTANEE UF CUUNSEL AT TRIAL IN VIULATIUN DF THE TEXA5 'EUNSTITUTIDN AND U.S.EUNST VI AND XIV AMENDS Applicant had a right to Effective Assistance of Counsel is a right guaranteed by the SiXth Amendment of the United 5tates-Constitution,5ee, 5trickland V.washington;h66 U.5.668§(198h)yapplied to the 5tate through_ the Fourteenth Amendment of the United 5tates Eonstitution ,5ee,Eideon V;wainwright,372 U.5.335 (1963);United 5tates V. Eronic,hEE U.S.EHB (1954), where Eourts considering ineffective assistance of counsel claims must evaluate whether counsel's deficient performance was significant enough to undermine confidence in the result of the proceedings,$ee,Bell V. Eone,535 . U.5.655,695 (EDUDL Also guaranteed by Article 1,5ection 10 of the Texas Constitution,See,Garcia V. 5tate,7B7-5.w.2d 957,958'(Tex.Erim.App 1990). The standard for Appellate Review of Effectiveness of Counsel was

set-out in,Strickland V.washington,hEE U.5,665,1Uh 5.Et-2052 (1954),

and adopted by the Texas Court of Criminal Appeals,in Hernandez V.Btate,

7.

726 5.w.2d 53,57 (Tex.Erim.App 1993),and the proper standard for ineffective assistance of counsel at the (Punishment Phase) of a Non-Capital case on Appellate Review,See,Hernandez V;State,QBB 5.w.2d`77U-771-72 (Tex.Crim.App' 1955). The two-prong Strickland test,usually is stated as follows;(l) whether Eounsel's Eonduct was Deficient,and (2) whether,But for Eounsel's Deficient Perforemance,The Result Uf The Proceedings would Have 5een Different,See, Strickland,lwh 5.Et at ZUEA;ZDEB,id. lt has been held that,even if an Attorney's manner of conducting a trial was trial strategy,it can be so ill-chosen as to render a trial fundamentally unfair.See,United 5tates VtRusmiael,716`F.2d 301.310 (Eth.Eri 1953),"from lack of diligence in preparation and investigation is not protected by the presumption in favor of counsel;See,Kenley V. Armontrount,937 F.Zd 1498)1304 (Bth.Eir),cert denied;BUZ U.5.96h (1991)." ' Even a single error of Counsel may support a claim of Ineffective Assistance if the error was of such magnitude that it rendered the trial-

fundamentally unfair.5ee,Nelson V.Estelle,642 F.Zd 903,907 (5th.Eir 1981).

1). Applicant would first,urge that his trial Eounsel's conduct was deficient in failing to research the law available in this case,and advance Applicant!s'available defense of justification of Belf-defense due to Apparent Danger.5elf-Defense is a justification defense for otherwise unlawful conduct.See,Giesberg V.State,QBh 5¢w.2d 245,249 (Tex. Crim.App 1998),cert denied,525 U,5.1147,119 S.Et 10#&'(1999),a defendant is "Justified" in using force against another when and to the degree he

reasonably believes the force is immediately necessary to protect himself

against the other's

use or attempted use of unlawful force,under the Texas Penal Eode §9.31 (Vernon'201s).

A person also has the right to defend against apparent danger to the same extent as if the danger was real.5ee,Hamel V.5tate,916 5.w.2d 491,493 (Tex.Erim.App.l§QE).

In the present case before you,the Applicant Mr.Duke,had a fundamental right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong,unimpeached or contradicted,and` regardless whether the trial court finds the defense credible,id§See,` Miller V.State,515`5.w.2d 552}585 (Tek.Crim.App.1991).

A claim of (Self-defense Apparent Dangerl defense is not required to be included in the charge when the defendant denies eiy.participation in the crime...sanders v.state 707 s.w.zd 78,91 <'Tex..crim.App 1986)-. f However,when a defendant acknowledges particiation in the offense,his“ self-defense apparent danger defense is not just a denial of the crime.

It is a defense which justifies his conduct in the same manner as an affirmative defense and must be included in the charge.ld .at 81 n.3. Also see,willis U.State;VQD 5.w,2d'307,313 (Tex.brim.App 1990)(that once a defendant admitted to the offense,the Bourt cf Eriminal Appeals has held that,a defendant can sufficiently-admit the conduct alleged and justify a defensive inst€?tion as in the Applicant's case.where Applicant admitted to being recklessly in causing bodily injury to Mr;Sizemore,but denied intentionally,knowingly stabbing or cutting sizemore with a knife 5ee (CR\V-E,pgs.B,and 174).."

Applicant's Eounsel were deficient in failing to research the law -available in this case after Applicant admitted to the offense of

9.

Aggravated Assault.

Throughout this trial,it was clear that (Mr.Duke'a) and the others '"testimony"-asserted the claim of "Self-defense" due to Apparent Danger. He also testified about Mr.5izemorels previous violent threats.and conduct toward him and it's impact on him at the time of this offense. THis is an established method of proof in raising a defense of 5elf-defense to an apparent_danger.Eee,Fielder V¢State, 756 5.w.2d 309,319-20 (Tex.Crim. App 1955).

Furthermore,in deciding whether to submit a defensive instruction,

a Court may not review the truth or credibility of the testimonygbut rather only whether it raises the issue of a.defense;§ee,Broussard;V.State, 509 5,w.2d 556,555 (Tex.App-Dallas 1991,pet,ref'd); Unly`the tier of fact

has the responsibility to accept or reject a properly raised defensive' theory.See, Fleming V.State, 973 5tw.2d 723,725 (Tex;App-Beaument 1998,

no pet ).

yln this case,the jury could have believed that while Mr.5izemore.

did not participate physically in_the altercation,he had been “Dut of Control" through his "Threats" and "Assaultive Threats In The Past",Against `(Mr.Duke) caused continuous fear in (Mr.Duke) due to 5izemore's threats@

Eonsequently,there is sufficient evidence in'the (Recordl tov raise the issue of (Self-defense.Apparent Danger) as follows:

First,we must review the opening (Statements) of Applicant's d trial counsel (ER.V-B,pages 27-28)

THE EDURT: All right,Mr.Park,do you wish to make an opening? MR.PARK: ves,r dn,vour H@npr..- n ` “ ` May it please the Eourt,Mr.Mullin,Ladies and gentlemen,l actually agree with a lot of what Mr.Mullin has just told you.Mr.Duke has admitted that he is guilty of aggravated'assault.

` 10.

He has taken responsibility for his actions.He said that he_acted recklessly; we'er also going to admit.that he was drunk that night.But these

things still don't fit into`a vacuum.Vou're going to learn that

on that night Mr;Duke was suffering from a spinal disease;arthritis, a broken wrist,two broken fingers,he had been clinically diagnosed with depression and post-traumatic stress syndrome as a result of his being a marine in vietnam, This is not a man who was healthy. .Mr.Sizemore was a 33-year-old man.He was healthy.

And there is a reason.Mr.Duke was upset and went down there carrying that knife. No.l,he was scared. No.2, he wanted to tell.Mr.Bizemore to leave. The reason he was telling him to leave is because Mr. -5izemore has just threatened this man anthad been shoving him around threatened to kill him. Vou will also learn that he threatened to beat him up several times in_the past.

Now,we must consider the_(Testimony) of the_Applicant and his (Initial) plea of (Not Guilty) during Voir Dire Preceedings (CR. V- 2,pgs 20- 21)

THE CBURT: This is on the record. Your true and corr ect name is James.Albert Duke; `is that correct? THE DEFENDANT: Ves. THE CUURT: Mr.Duke;yeu were originally indicted in cause No.5574; and he reindicted you in Cause No.6571,.Do_you_understand that? THE DEFENDANT: Ves. THE CDURT: Vou'were--MR;RIDLEY: You have read them. THE CDURT& Have you read the indictment pending against you? THE

THE EUURT:Has anyone threatened you in any way to plead guilty?

THE DEFENDANT: No.THE EUURT: Has anyone promised you anything to plead guilty?THE DEFENDANT: NU.

THE EDURT: The Eourt will find your plea of guilty is freely and voluntarily amitted to.Is there any evidence to offer by the 5tate? MR.MULLIN: Your Honor,the 5tate offerd the stipulation of evidence. MR.RIDLEV: mo objectiun.

Dn direct examination;Applicant testified and presented evidence of

(5elf-defense Apparent Danger) (CR.V.Z pg,160-177)

Q.

Now,you have hung around with Dasey.§izemore quite a bit before that evening,too;is that correct? n b l

No,Not particularly hung around with him.He had lived up behind where l did.

You were acquainted with him?

I was acquainted with him.

Had he in the past ever threatened you?

Beg your pardon?

Had he threatened you before that?

Yea,he had.That wasn't the first time he threatened me.

would you tell us about some of those threats,some of the things

that he had said in the past before that night?

b Before that night he had told you that he didn"t have any problems,

you know,killing somebody.He told me that-well,it was one of the threats is,you know, "Hey,I don't have no problem with killing somebody." Then he told me,he said," I was in the pen for drug dealing

and I don't have any problem with any of this."

(cR.v;spg 173-174)

.Q.

A Q. A Q

5o you went down there for what reason? To run him off,make him leave. And why did you have the knife when you went down there? well,l knew what was going to happen to me. You knew what was going to happen to you? 12.

He had made it plain and clear what he was going to do and what he was going to do it.

what happen to you down there?

He shoved me. well,I told him to leave again.He said,"F-U" ,He shoved me with both hands on the chest.And when he did,l come up like`that.And`it'S__

where did you stab him?

I don't really know.l just knew I stabbed at him.l saw the blood and stuff.I knew it was up here.He fe111

Un cross-examination;Applicant continue to give evidence of self-defense

apparent danger (ER.U-Z.pg5177)

A.

A. .Q_

Q. A.

EY MR.MULLIN:

Mr.Duke,I'm curious.Do you think Easey 5izemore's family feels bad today?

Yes,sir,l do.

Mr.Duke,your lawyer just asked you if it was reckless to go down there with a knife§Vou actually intended to take the knife with you, though,didn't you?

Ves.

50 that was not a reckless act?That was actually an intentional act, right,to take the knife with you?

it--yeah,to take it down there.It was a stupid act,yes.

50 you are not as responsible,then,if it's just stupid.would you agree?

l didn't carry the knife down there intentionally.lt was out of protection.

Vou admitt to carrying it down there?

I had already admitted it.

(ER.V-Z,pgs 195-91)

Ukay,Eut that didn't_upset you at all,did it? Yes.it upset me,as far as the point that he didn't leave.I had told him to leave,and he didn't leave.And as far as the point was

that l knew he was going to come back up there. 13.

b ,c) > £3 I= ca b

And I did,so you say,a reckless thing.l armed myself,and I went down there and confronted him again and run him off.

Let's be clear.You-are the one that keeps saying lthings like "stupid" and "reckless." Are they stupid and reckless,or did you mean to go down there with a knfie?

At the time I suppose i did.i put it in my hand.

50--

I didn't go down there to use it.

But you did,didn't you?

'Yes,sir,l did.

And you said in your statement--I'm going to read you afew excerpts because I have a transcript of what we heard today.And then I'm going to ask you a question about it. You saidy'"all l wanted him to do was leave.i told him he didn't need to come back.I wish he had went on home.If he hadn't shoved me. I wouldn*t have stabbed him.All I wanted him to do was leave.All I wanted to do was get in his car and go.l wish he would have just went on home?" Do those sound like the statement of a man who thinks this is his fault? Aren't you putting it off on Easey? l guess it could be on both of us actually.lt's-- I was going down there with a knife ,him threatening me and shoving me around.Bo which is right and which is wrong,I don't know, This is why we are here.i don't know, Casey--you still don't know which is right and which is wrong? Is that what you are saying? It was wrong of me to go down there with a knife,yes. was it wrong for you to stab him to death? Yes. Did he ever threaten you with a weapon? He didn't need a weapon. He didn't what? He wouldn't need a weapon.

1&.

So you*re not hedging your bets here just a little bit when you s "well,l really don't know what~ is right and what is wrong.That's why we'er here?" Aren't-you kind of equivocating a little bit? » No.5ir,l'm not. _

MR.PARK: UbjectionyYour Honor.He said it was wrong to go down there.

THE EUURT:.All right,I'll sustain your objection.

Now we must consider and review Applicant's Eounsel's closing

arguments: (ER.V-B,pgs 214-215)

MR.PARK: If it pleases the Eourt,ladies and gentlemen,l would like to thank you all for coming here and servinng on this jury.Dne thing that Mr.Mullin said is absolutely right.Uur client has pled guilty.He has admitted_his guilt.in this case.50 today everything that we have done is not--didn't have anything to do with justification.There is no justification for what he did. n

what we'er trying to do today is mitigate,that is trying to lessen, show you the circumstances surrounding this crime that he did commit

and show you why you should not give him as mush time in jail.

_ Now,Mr.Duke took responsibility when he came in here and he pled guilty_

He admitted that he was wrong.And I think that that is in line with

what he has done throughout this entire case,other than the crime itself. After he committed that crime,he went straight up there;and he admitted to his brother and admitted to the whites what.he had done.He didn\t

try to run.He didn't try to hide.He.dingt try to throw that weapon

out there in the lake.He brought it right up to his brother.

when the police came,again,he didn't try to flee.He didn't try to

run anywhere.He came up and told the police,"Yes,I am the one you'

are looking for."

_when they came and asked him to make a statement,again,he didn't

say,"well,no,l want to talk to my lawyer.I don't want to say anything

at all." He went out there and voluntarily made a statement.

iNow,this is significant because it means that the only reason we

know what happened,about him stabbing Easey 5izemore,is because

15.

he admitted it. He didn't try to hide anything.he has not came in here with any self-serving statements.All along he has faced up to his responsibilities and admitted to what he did. `Now,lets take a look at what might mitigate the circumstances, other than him being honest and responsible. Un that evening, August the Bth ZUUZ,James.Duke--you saw his wrist.I mean,that - wrist isn't just broken.it's horribly broken,he had two broken fingers.The man had spinal diseaseywas suffering from seizures, had post-traumatic stress syndrome,and had servere depression.He l was on all kinds of medication.Now,we had an expert psychologist come in here and tell you that all these things make him more prone to fear,to anxiety,to thinking peoplt.are threatening him, whether they are or not. Let's take a look at Casey 5izemore.He didnjt deserve to die. what James-Duke did to him was absolutely wrong.Casey was a man about my age.l don't like the idea of him dying like that.I donlt like what James Duke.did.But Easey 5izemore--and here we've got a guy who defines himself with tattoos that say "outlaw" and "Btoned again" and have knives.stabbed down through skulls, -eight-point dagger31 He comes up to this man and starts threatening James Duke.James Duke told you he had threatened to kill him before. James Duke told you he had been in the pen.James Duke told you he had seen him dealing drugs;using cocaine out there on a regular basis and was not a nice guy. n He is a young,healthy man.This is-a beat up,old`man over there. He came up there and startes shoving him around,cussing him out, saying he is going to whip his ass and saying he is going to kill him and he has done.this on several occasions in the past. James Duke finally had enough.But he wasn!t going down there to kill him.He did commit a crime,but he did not intentionally go down there to kill this guy.He did intentionally bring that knife.down there,but he told you he wanted the guy to leave. And that's what we really wish in this case.we wish,first of all,that James Duke had not stabbed Easey 5izemore.That's the No.1 thing we wish. l

16.

5econdly,we wish that Casey Sizemore had left.Thatls all he

had to do,But he didn't.He gets over there and tells him again, ll'm going to whip your ass,shoves him again."

Folks,this is a case of a young man who did not deserve to die but who shoved around a beat up,old man one too many times.That does not justify what he did,but we hope that you will have mercy

in light of all the circumstances of this case.Thank you. . You must also consider the (State‘s) prosecutor's closing arguments

by Mr.Mullin (ER.V-Z;pgs 215-227). l

The trial court must charge the jury on any (Defensive Issue) raised by the (Evidence),"Regardless of it's substantive character;" 5ee, Brown V.5tate,955 5.w.2d 276,279 (Tex.Crim.App 1997)(quoting williams V. 5tate,630 5.w.2d 6#0,643 (Tex.ErimtApp 1952).‘

Self-defense,like other chapter nine defenses justifies conduct that would otherwise be criminal,See.Vanbrachle'V.5tate;179 5.w.3d 7UB, ` 715 (Tex.Crim.App 2005)(citing Young V.State,991 5.w.2d 835,538 (Tex.Erim. App 1999);wallace h.State,.75 5.w.3d.576,587`(Tex.App-Texarkana 2502),aff'd ` 106 5.w.3d 103,109 (Tex.Crim.App 2003). In other words,the defendant 'must "Admit" violating the (Statute) under which he is being tried,then offer a statutory justification for his otherwise criminal conduct.Young, 991 5.w.2d at.BZB. Thus,a defendant is not entitled to_a jury instruction on "Self-Defnse" if through his own testimony or the testimony of others, he claim that he did not perform the assaultive acts alleged,or that he' did not have the requisites culpable mental state,or both,5ee,Ex Parte Nailor 1h9 5.w.3d 125 ,13# (Tex.Brim.App ZUUA);East_V.State, 76 5.w.3d 736, 735 (Tex.App-waco,2002,no pet);wallace,75 5.w.3d at.587;Eilmore V.5tatey` 44 5.w.3d 92,97 (Tex.App-Eeaumont 2501),pet.ref'd).Anderson V;State,11 5.w.

3d 369,372 (Tex.App-Houston [1st Dist].2UUU,pet ref'd).

17.

Applicant's trial counsel were deficient in failing to know the law available to Applicant's case.

Eounsel failed to acknowledge that a defensive issue may be raised solely by the Applicant's testimony.See,Pierini V.State, 004 5.w.2d 255, 260 (Tex.App-Houston [1st Dist]1991,pet ref'd).ln determining whether testimony of the Applicant raises an issue of self-defenseythe truth or credibility of the Applicant's testimony is not at issue.5ee,Rodriguez V. 5tatey544 5.w.2d 352,353 (Tex.Erim.App 1976).(ER.V.B,pgs,160-191).

If the defensive theory is raised,and the trial court is timely and properly requested to instruct the jury on the theory,the trial courtv must instruct the jury on the raised defensive theory.Bee, Thompson V.State 521 5.w.2d 621,624 (Tex.Erim.App 1974).

"[A] person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful 'force."‘See,Texas Penal EOde Ann §9.31 (Vernon Supp 2002).

To rely on "Self-defense" the Applicant must first admit committing the conduct which forms the basis of the indictment;the defense is- inconsistent with a denial of the conduct.Bee,Kimbrough V.5tate, 959 5.w.2d 634,640 (Tex.App-Houston [1st Dist]1995,pet.ref'd);MacDonald V. 5tate,761 5.w.2d 56,60

However,the Eourt of Criminal Appeals has explained that "Admitting the Conduct" does not always mean admitting the commission of every

"5tatutory Element" of the offense. For example,in Martinez V.State, the defenant was charged with murder,Martinez V.State,775 5.w.2d 645,645 (Tex.Crim.App'1909), He admitted to pulling a gun,firing into the air; and having his finger on the trigger when the fatal shot was fired.ld at 647. However,he denied the element of "lntent to-Kill,"id¢ The Eourt held `r he had "sufficiently admitted to the.commission of.the offense."id.

(Bee cases in accord cited therein);Torres V.State,7 5.w.2 712;715 (TEX.AppoHnustsn.[1uth Dist] 1999,nn pet);see aiss,willis v.state,790 5.w.2d 307,314 (Tex.Erim.App 1990),(denial of the "intent_" element of the theft does not automatically negate an affirmative defense).

The right to present a defense is a fundamental element of due process,See.washington V.State,ZBB U.5._14, 19, 57 5.Et 1520,1923,15 L.Ed.2d 1019,1023 (1967);5ee also Tex.Eonst.art. I,§ 19.Evidence of Applicant's (Fear) of Easey Sizemore and Sizemore's threats in the past and of being out-of-control of being physically assaultive in the past was sufficient evidence to raise the issue of (Self-defense Apparent danger).Thusycounsel's'failure to.acknowledge the law available in this case was s deficient performance by counsel.

An attorney representing a criminal defendant is charged with making an independent investigation of the facts of the case,See,McFarland V.State,925 5.w.2d 452,501 (Tex.Erim.App 1996),Ex Parte Duffy,607 5.w.2d 507,516 (Tex.Crim.App 1950)(Plurality 0pinion). This encompasses the duty to conduct a legal and factual investigation and to seek out and interview potential witnesses.See,Ex Parte welborny7B5 5.w-2d 391,395 (Tex.Erim.App 1990).The duty to investigate,at least since Strickland,

`_` 19.

is not categorical.5eeyMcFarland, 920 5.w.2d at 501. Rather,Counsel

'has a duty to make reasonable investigations or make a reasonable

decision that makes a particular investigation unnecessary.Bee,id.

The decision not to investigate "must be directly assessed for reasonableness "in all the circumstances,applying a heavy measure of deference to counsel's judgment." id. However,a conviction_can be reversed where a defendantls only viable (Defense) available is not advanced and "there is a reasonable_ probability that but for`counsel's failure_to advance the (Defense of- 5elf-Defense Apparent Danger) as in the present case before you,the result of the proceeding would have been differentJ"Strickland, 466 U.S. at 694, 104 S.Et 2052, Duffy 607 5.w.2d:at 517. The'failure of Applicant's

trial counsel to seek out the law available to the Applicant's (Defense)_-

denied Applicant a fair trial ja fundamental right and his Six Amendment

Right to adequate Counsel at trial.

-2). Applicant would now urge that his trial counsel's conduct was deficient in failing to object to the Eourt's (Charge To The Jury) to preserve any error for (Appellate Review) under Article 36.14 and 36.19 of the Texas Code of Eriminal Procedures.we also,must consider Rule 33.1 of the Texas Rule of Appellate.Procedures.See,Posey V.5tate,966 5;w.2d 57 (Tex.Crim.App 1995);citing Almanza V.5tate, 656 _5.w.2d`157,160-74 (Tex.Erim.App 1984);Also`see,Vasquez V.5tate, 530 5.w.2d 945,951 (Tex§Crim App 1992).

In the present case before you,Applicant's trial counsel failedw to (0bject) to the Court's Charge To The Jury as required by Art 36.14 of the Texas Code of Eriminal Procedures to preserve the error for

20.

Appellate Review as required by Rule 33.1 of the Texas Rule of Appellate Procedures.

First we must consider Article 56.14 of the Texas Eode of Eriminal Procedures as follows:

" Before said charge is read to the jury,the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing,distinctly specifying each ground of objection.Said objections may embody error claimed to have been committed in the charge,as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts,and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge,as herein provided.The requirement that the objections. to the Court's charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the COurt and the 5tate's counsel,before the reading of the_court's charge to the jury.Compliance with the provisions of this.Article is all that is necessary to preserve,for review,the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defendant to except to the action of the court in over- -ruling

- defendant's exceptions or objections to the charge. "

It is clear that Applicant's trial counsel failed to request an objectionv to the Hourt's Charge,nor did he request an instruction as to the (Defense of 5elf-defense Apparent Danger).

THE CUURT: I believe you beth have been tendered a copy of

the proposed charge on punishment.Illl give you an opportunity to review it and see whether or not.there are any changes or corrections that needs to be made. d

vTHE EDURT: No objections on behalf of the defendant?

:MR.PARK: No objections,Your Honor'(0R.V,3;pgs,203-207).

The trial court presented the following charge to the jury without any ebjections by Applicant‘s trial counsel as follows;

James Albert Duke,the Defendant,stand charged with the offense of Aggravated Assault with A Deadly weapon in Count II of the indictment alleged tohave been committed in Trinity Eounty,Texas,on or about

21.

the Bth day of August,2002.

To this charge the Defendant has plead "Euilty." The Defendant has presented in entering such plea even after the'trial court admonished him of the consequences of the plea.It-plainly appears to the Eourt that the Defendant is competent to stand trial and is not influenced to make this plea by any consideration of fear,nor by any persuasive or delusive hope of pardon prompting him to confess his guilt. Therefore,the Defendant's plea of guilty is received by the Eourt. You are instructed to find the Defendant guilty as charged and assess his punishment{

The punishment authorized for the offense of`Aggravated Assault with A Deadly weapon is by imprisonment in the Texas Department of Criminal Justice-Institutional Division for ant term of not more than twenty (20) years or less than two (2) years;`ln addition to imprisonment,you may assess a fine not to exceed $10§000.00;

In addition,the indictment alleged the Defendant should be punished as a repeat offender,namelyythe Defendant has been at least once before convicted of a felony offense. To_thatn allegation,the Defendant pleaded;BTrue."

The Defendant has persisted in entering such plea even after the trial court admonished him of the consequences of the plea. lt plainly appears to the Court that the Defendant is competent to stand trial and is not influenced'to make this plea by any consideration of fear,nor by any persuasive or delusive'hope of pardon prompting him to plead true. Therefore,the-Defendant‘s plea of true is received by the Eourt.

The jury is instructed to find the allegation true and so state in your verdict,and you must.assess punishment at imprisonment in: the Texas.Department of Eriminal Justice -Institutional Division. for Life or for any term not more than ninty-nine (99) years nor_ less than five (5) years. In addition to imprisonment,you may assess a fine not to exceed $10»000.0!.

Under the law applicable_to this caseythe'Defendant;if sentenced to a term of imprisonment,may earn time off the period on incarceration imposed through the award of'good conduct time. Prison authorities may award good conduct»time to a prisoner ,who exhibits good behavior,diligence in carrying“out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct,prison authorities may also take away all or part of any good conduct time earned by the prisoner.

lt is also possible that the length of time for which the Defendant will be imprisoned might`be reduced by the award of parole.

v22.

Under the law applicable to the offense of Aggravated Assault

' with A Deadly_weapon as charged in Eount ll in the indictment, if the Defendant is sentenced to a term of imprisonment,he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years,whichever is lesstwithout consideration of any good conduct time he may earn. If the Defendant is sentenced to a term of less than four years,he must serve at least two years before he is eligible` for parole. Eligibility for parole does not quarantee that parole will be granted.

You are further instructed that in fixing the Defendantls punishment,which you will show in your verdict,you may consider all of the facts shown by the evidence admitted before you in the full trial of this case,and.the law submitted to you in this charger ` ' ~ 1

You are the exclusive judge of the facts proved,of the credibility of the witnesses and of the weight to be given to the testimonyybut you are bound to receive the law from the Court,which is herein given to you,and be governed therebyj' in arriving at the amount of punishment,you-are~not to fix the same by lot,chance or any other method than by full,fair and free exercise of the opinion of the individual jurors.

After the Eourt reads this charge,you may not separate from each other,nor may you talk with anyone not of your jury.After' argument of counsel,you must retire and setect one of your members as a presiding juror. The presiding juror's duty-is'to preside at your deliberations and to vote with you in arriving at a unanimous verdict. After you have arrived at.your verdict you must have your presiding juror indicate the jury's verdict` by_signing same. ' v

After you have retired to consider your-verdict,no_one has any authority to communicate with.you except the officer who has you in charge.You may communicate with the.Eourt_in writing, signed by your presiding;juror,throwgh the officer who has you in charge. Do not attempt to talk to the officer;the attorneys, or the Eourt concerning questions you may have- 5ee (Elerk's Records Volume one of one,Vol-015.551-553).

Now we must'consider Article 36.19_of`the Texas Eode of Eriminal Procedures as follows; "whenever it appears by the record in any criminal.action upon

appeal that any requirement of Articles 36.14,36.15,36§16,36.17 and-36.1B has been disregarded,the_judgment shall not be reversed

unless the error appearing from the record was calculated to injure the rights of defendant,or unless it appears from'the record that the defendant has not had a fair and impartial trial. All objections to the charge and the reIusal of special charges shall be made at the time of the trial. "

Article~36.19 prescribes_the manner in which jury charge err is reviewed on appeal. First,an appellate court must determine whether error exist in-the jury charge. 5econd, the appellate court must determine ~whether sufficient harm was caused by the error to require reversal.The degree of harm necessary for reversal depands pupon whether the error was preserved. Error_properly preserved by an objection to the charge will require reversal as long as the error is not harmless. we interpreted this to mean any harm,regardless of degreeyis sufficient to require reversal.

However,when the charging error is not preserved a greater degree of harm is required, This standard of harm is described as "egregious harm." Applicant‘s error whcih resulted in egregious harm§ that affects the very basis of the case,deprived theprplicant.of a valuable,right that vitally affect-Aoplicant's_defense.id.

In either event,when conducting a harm analysis the reviewing court may consider the following four factors; 1).the charge it salfi 2) the state of.the evidence including contested issues and`the weight of the probative evidence;_§) arguments of counsel; and,_4) any other relevant information revealed by the record of the trial as'a whole§5ee. Hutch V. state,§zz 5.w.2d 156,170-71 (Tex.crim,App 1995).

Article 36.19 "separately contains the standard for both

fundamental error and ordinary reversible error.".5ee;Almanza-V.5tate.

636 5.w.2d-157.171'(Tex.crim;App.jssu).

24.

Now we must consider Rule 33;1 of the Texas Rule of Appellate Procedures as a prerequisite to presenting a complaint for Appellate review,the record must show that; 1) the complaint was made to the trial court by a timely request,objection,or motion that stated the ground for the ruling that the complaining party-sought from the trial court with sufficient specificity to make the trial court aware of the complaint,unless the specific grounds were apparent from the context.

Applicantls counsel's-conduct was deficient in failing to object to the Eourt‘s Bharge To.The 0ury to preserve:the error for appellatev review-5ee Ex Parte'Cripen,777 5.w-2d»103i(Tex;Brim.App'1959);writ granted where.counsel failed to raise an objection or raise the wrong objection to an error in the trial proceedings,waived your substantial rights and` forfeited your procedural rightsyas in=Applicant*s case,See.Jiminez V. .Estelle, 557 F.2d 506 (5th Cir 1977);wainwright V.5ykes;433 U.5. 72,97 5.0t 2497 (1977).

The failure of Applicant's trial counsel to (0bject) to the court's charge to the jury denied Applicant a fair trial,a.fundamental right and v .his 5ix Amendment Right to adequate Eounsel atttrial:*` Eourt must also apply Rule 44.2 of the Texas.Rule of Appellate Procedures to the error

in.the court's punishment phase of Applicant's`trial.'

3). Applicant.would now urge that his trial.counsells conduct was deficient in failing to.(Request A Jury Instruction) that the court instruct the jury on the law of justification of 5elf-Defense,and 5elf- Defense Apparent\Danger;pursuant to Texas Penal,Eode ;section §9.31,

25.

and Texas Eode of Eriminal Procedures Article.57¢07,5ec,3(a)(1),(b). we must frist consider Art137.07:

5ec.3. `Evidence of prior criminal.record.in all criminal cases

after a finding of guilty.

(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury,evidence may.be offered by the state and the defendant as to any matter-the court deems relevant‘to(sentencing,v including but not limited to the prior criminal record of the defendant ,his general reputation, his character, an opinion regarding his character ,the circumstances of the offense for which he is being tried and ,-notwithstanding Rule 404 and 405, Texas Rule of Evidence,any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsble,regardless“of-whether=he¢has previously been charged with.or finally convicted of the crime or act.A`court may consider as a factor-in mitigating punishment the conduct of a defendant while participating in;a program.wnder Ehapter 17 as a condition of release on.bail.Additionally;notwithstanding Rule 609(d)1Texas.Rules of Evidence,and subject to 5ubsection (h), evidence may be offered by the state and the.defendant of an adjudication of delinquency based on'a violation by the defendant of a penal law of the grade of: ' - -

(b) After the introduction of such evidence has been.concluded,and if the jury has the responsibility of assessing the punishment, the court shall give such additional written instructions as may be necessary and the order of procedure and the rules governing the conduct of the trial shall be the same as are applicable on the issue of guilt or innocnece. 5ee.Ferrel V.5tate,55 5.w;3d 586,591 (Tex.Erim-App 2001);where the court ruled that a defendant entitled to instruction on.defensive_issue if the issue is raised by the evidence. 0n proper request,the court§s\is required to charge on any defensive theory that is raised by the evidence 5ee,5reen:V.5tate,566'5.w;2d 575, 504 (Tex.Erim.App 1975)- The.defendantls testimony along may be_

sufficient to raise a particular theory. Further,the defendant is

entitled to such an affirmative defensive charge regardless of whether

26.

the testimony raising the theory is strong or feeble,unimpeached or contradicted,even if the Court is of the opinion that it is unbelievable .5ee, Hays V.5tate; 725 5.w.2d 504,507-05 (Tex.Crim.App 1957);whether belief in need to use force is l"reasonable" is fact issue for jury to decide. n n

' The defendant is entitled to receive as many defensive instructions

gas are raised by the evidence; The fact that the defenses may actually

conflict with each other%does not bar the defendant-from receiving an_

'instruction on each onei5ee,5ooth V.5tate,679 5.w.2d 495,500,502 (Tex.Erim.

App 1954). Had Applicant\s trial counsel actually requested an instruction on the issues of (SeIfQDefense,andeelf-Def nse Apparent Danger) pursuant to § 9.31 of the Texas PenalfCode . The requested charge onfa defensive'

issue should not only give a general explanation-of the lawjbut'should

_`also apply the law to the facts. The failure to do this may result in'a

b finding that the trial court was not properly apprised of the nature of

the defendant's complaint.See,Hefner V.5tate, 735 5.w.2d 605,622§5Tex. App-Dallas 1957,pet ref).- n -

while the trial court has an affirmative duty to instruct the-jury concerning some issues even in the absence'of.a request or objection

5ee,Texas Code'of Eriminal Procedure Art.36;14, defensive matters

generally are considered strategic and'the failure to instruct is not

error in the absence of request or objection to the omission of a charge on a defensive issue.5eeyPosey V.5tatey 966 5.w.2d 57.62 (Tex. 0rim.App_1995);'Rogers V;State, 653 5¢w.2d 122,124§(Tex;App-Houston [1st Dist]1953,pet ref);white V.5tate, 495 5.w.2d 903,904.(Tex.0rim.App

1973). 27

A defense attorney's failure to request a jury instruction can render his assistance ineffective'if;under the particular facts of the case,the trial judge would have errored in refusing the instruction had counsel requested it. see,vasqusz v.state,ezo 5.w.2d 943,951 (Tex.crim.App 1992). In the present case before you,the record will show that Applicant's counsells_failure to request-a jury instruction on the defensive issues of (5elf-Defense;and 5elf-Defense3Apparent'Danger) was not based on sound strategy;$ee-Court“Records.Reporter's'Record-Volumes 1 through 4 of 4, Trial Eourt'EauselNo.5671,as a hold. will show that Applicant*s‘ trial counsel's performance was deficient because he failed to request - an instruction and object to the jury charge both of which Applicant asserts were based on an'invalid felony of (Murder) after the state v abandoned count one of the indictment.The second count of the indictment based on the underlying Aggravated Assault¥that without the BPPerFiStE jury instruction and objection,was predicated on the underlying offense of the abandoned'(Murder) charge id; (ERIV‘S}pgs§3-234).1

Applicant's counsel's conduct was deficient,and but for counsel's deficient performance,the result of the proceeding would have been different. Strickland 104 S}Ct'at#2064,2065.'Denied'Applicant,a fair trial, a fundamental right and his Six Amendment Right to adequate Eounsel at trial.The Court must`also consider Rule 44.2 of the Texas Rule of Appellate Procedures to Denstitutional.error in the sentencing

phase of trial.

cRouND NoMsER.THREE; APPLIEANT REEEIVED'INEFFECTIVE A55I5TANBE 0F EUUNSEL 0N APPELLATE REVIEw IN UIULATIUN 0F THE TEXAS 00N5TITUTIIN AND`UsS.CUNST Vl AND XIV AMENDS -. ., .

It is well established that a defendant is entitled to the effective assistance.of counsel as.required by the Sixth and'Fourteenth$Amendments 5ee,Eideon'V,wainwright, 372 U;51 335,53 S.Et 792 (1963). Effective assistance_is denied if "Eounsel*s representation fell below an objective standard of reasonablenessq" and’there»is=a reasonable probability that,¢ but for'counselis unprofessional errors;the result of the proceeding would-have seen different.' see,strickland»v.uashingtoh; 466 u;s. 653 (1954). 4

Due process requires that a defendant have effective assistance of counsel on his appeal.Bee, Evitts V. Lucey;'469 U.5. 357 (1955). Effectiveness of Appellate Eounsel is judged_by the Srickland'test}id

, \\ _ _ 5ee, Teague V.5tat§,.60'F.3d 1167;1174 (5th Eir 1995)1:Under the 5trickland`test;it is not necessary to show that thesApplicant received a fair appeal or that the outcome would have been differentrRather,it must be shown that`the Applicant receive a fair appeal and result of- which is worthy of confidence.' n

Although appellate counsel is.not.required¥to'raise'every'non- vfrivolous claim and may be selective in including or inclusion of issues in order to maximize success,counsel has an obligation to raise-' .determinative'issues.See,Bmith?V.Hobbins,£525'015.'259`(2000)1 In this regard,several federachircuits`have held that"appellate counsel

is ineffective if counsel fails_to-raise a claim that.qualifies as a

29.

fdead bang" winner.5ee5 Upchurcth. Brwce, 333 F.3d 1155 (10th Eir'2003);_ Eargle V.Mullin, 317 F.3d 1196 (10th Eir 2003);Fagan Vlwashington, 942 F.zd 1155,1157 (7th cir 1991)'.~ Theee“ere.eet juet;~the failure te reie-e

a substantial claim can be indicative only.of`the`oversight or ineptitude, 5ee, Fagan,942 F.2d at 1157. 5ee also, Vens V.Clarke;6501F15upp 1351 .(D.Nebraska 1955)(denied effective assistance of appellate counsel warranted habeas relief where claims not presented on direct appeal

had at least arguable merits and counsel affirmatively argued against

his clientsls case). n n

b In 5tllings V;'United 5tates;556“Fr3d2624,(7thh01r;2005)5the court

stated that where a petitioner alleges`ineffective`assistance of appellate counsel,the-appellate'court£firstoexamines}t e record to see whether counsel omitted'significant`obviousvissues»andyif§so¢the;court: than compares.the neglected issues to"thosevactually§raised._lf the .ignored issues are clearly etronger than those€’raised,appellate

counsel was deficient.See?Passmoreiv.EstelLe,594jF.2dr115 (5th Cire 1979) (Finding_appellate counsel ineffective).

1). 0n direct appeal Appellate Eounsel raised the issue of;The Court Erred By Not Allowing TestimonyiRegarding'Tl *Casey 5eizmore's Eriminal History And Criminal Background During The'Punishmenthhase 0f Trial. (Appellate 5rief,pg.2). Bounsel argues as follows; lt is clear that victim character evidence~isfallowed in the punishment phase of a trials There is no more a case-where this is true'than in`a (Homicide~Ease); Particularly when the victim character evidence goes to show the state -of mind of the accused. As a matter of fact,the Bode of Criminal Procedure Art.35.36,codifies this point by allowing any relevant evidence

that would show the state of mind of the accused.(Appellate 5rief,pgs,4-5)§

Appellate Eounsel's argument that the trial court should have allowed .testimony;from'witness,JulieaLoitz;about=the£victim's prior convictions on drug charges;Appellate Bounsel relies upoanrticle 35.36 of the Texas EOde of Criminal Procedure;however,this.statutory'provision only applies in~a murder prosecution. In the case at bar,the 5tate abandoned the.' charge of murder,and the Appellant pled guilty;to the charge of Aggravated Assaultwwith a`Dsadly weapon.' n

The law is clear that evidence of a victim‘s criminal background~ in a murder case is limited to relevant evidence which»shows the prior violent relationship between the:victim“andithepaccused,and-which sheds light on the accused's state of mind. The evidence AppeLlant.proposed to introduce had no bearing£whatsoever_on'whether;or'not?the;victimghad a violent relationship with_Appellant;’In factythe evidence of Easey 5izemoreLS-prior drug offenses was notrshownfto beirelsted‘to_A`lJDEJ-`lant at all,or to have influenced their;relationship;lt was therefore proper for the trial court to.refuse to introduce;the'"have you heard" questions sought to be elicited through Julie“Eoitzhe n y 29. Applicant's Appellate Counsel¢were:ineffectiverin.failing to- raise the following issues on direct appeal.(1) Eounsel s failure to research the law available in this case and advance the law regarding Applicant's ` only defense of justification of self-defense,and self-defense apparent danger,Texasten l Eode Art.9.31 ;(2)Eounsel failure to object to the court's charge to the jury to preserve the asserted error for'appellate review.,and(§);Counsel’s'failure to request a jury instruction that the

31.`

Eourt's charge charge the jury on the law of justification of self-defense and self-defense apparent danger ,that it"s preclusion.precluded the jury from'giving effect to Applicant's only defense ,constituted ineffective assistance of Appellate EDunsel. l

In both issues,Appellate 0ounsel;was`ineffective for having failed to appropriately apply the correct.law to the asserted issues on appellate review,and failure to raise the issues on direct appeal;violated Applicaant's 5ixth and Fourteenth Amendment¢Rights;to effective counsel on appeal.5ee Evitts V.Lucey, 469~U.51'357,396-97;.105!5;0t.530 (1955)(Right-to effective assistance of counsel on first appeal as ofjright); To sustain these contentions,Duke;have shown that (T)'hiseattorney;was,objectively unreasonably in failing to apply the correct.law_togthe facts or argument on appeal,and failing to discover and raise the issues of counsellsffailure. to research the law,“l§lbject"to~the.court's.;charge'to`the.jury'to.preserve4 the error for appellate review,and`failure-to request a jury instruction on the issue of-Applicant's only defense of 5elf-defense,and 5elf-defense apparent danger,and (2) but for thispfailure,he would have prevailed on appeal. 5ee,5mith V;Robbins, 525 0:5. 259,255,120 5.Et 746 (2000);

Deigie,sus 5.w.2d et 692.

NEEESSITY FOR"A HEARING v 0nder'Art.11.07.Texas Eode of Briminaerrocedure,this Eourt should set this matter for an evidentiary hearing in order to resolve the controverted,previously unresolved fact issues that are raised by this Applicant. lt is only through an evidentiary hearing that the truth of

these allegations will be determined.

32.

UHER`EF’G`R'E,§PREMISES CE|'NS'I‘D`E"RED,' Applicant pr.ays that `the relief prayed.for be granted and his Sentence be Uacated and his direct

Appeal Be Reinstated, Pursuant to &4.2 of the Rule of Appellate Procedure.

REsPEcTFquvisuBMITTED,

aw- w

Jamestlbert'Duke _TDEJ#“1TBB#LB/Eastham~ v2665‘PFison Rda@1 Loveladnyexas 75851

lApplicant

EERTIFIDATE-BF§SERVIEE I certify that a true.and-oorrect copy of-Applicant’s Habeas Eorpus Art.1T-D7 and Memorandum of Lam have been

served.on the Dis.-tr.i-ct.Ele-rl

of dquad<+' l ,2015. z .

Jadds Albert Duke

33.