Kanybitabo, Mathieu

• Court: Court of Criminal Appeals of Texas
• Decided: July 27, 2022
• Docket: WR-93,371-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-93,371-01 & WR-93,371-02

EX PARTE MATHIEU KANYABITABO AKA MATHIEU KANYBITABO, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 13819-D & 14123-D IN THE 350TH DISTRICT COURT FROM TAYLOR COUNTY

Per curiam.

ORDER

Applicant made open pleas of guilty to aggravated assault and theft. In a combined

punishment proceeding, he was sentenced to thirteen years’ imprisonment for the aggravated assault

offense and sixteen months’ imprisonment for the theft offense. Applicant did not appeal his

convictions. Applicant filed these applications for writs of habeas corpus in the county of

conviction, and the district clerk forwarded them to this Court. See TEX . CODE CRIM . PROC. art.

11.07.

Applicant contended, among other things, that trial counsel was ineffective for failing to

investigate, pursue, and present mitigating evidence at the punishment hearing. The trial court made

only findings of fact; It did not give a recommendation. After determining that the trial court’s 2

findings were insufficient, we remanded the case for a supplemental response from trial counsel and

for supplemental findings and conclusions from the trial court. We ordered the trial court to make

specific findings as to (1) what mitigation investigation trial counsel conducted, including whether

he sought out mitigating evidence from Applicant or his family members; (2) whether trial counsel

ever explained mitigation evidence principles to Applicant; (3) and whether trial counsel adequately

investigated and prepared for the cases.

The trial court obtained a supplemental affidavit from trial counsel and made supplemental

findings of fact. The trial court’s findings are still insufficient, as they are contradicted by the record

and do not include any explicit credibility determinations. To start, trial counsel’s affidavits contain

conflicting statements: he states in his initial affidavit that he only discussed bond issues with

Applicant’s family members, but then he states in his second affidavit that he discussed mitigation

concepts with them. According to habeas counsel’s and Applicant’s sister’s affidavits, trial counsel

never discussed the case with Applicant’s family. And according to Applicant, he and his family did

not know to provide information about his traumatic childhood to trial counsel or the Pre-Sentencing

Investigation (“PSI”) interviewer because trial counsel never provided specific guidance or asked

questions that would elicit such information, but instead only said to disclose any information that

would be helpful to the judge.

Additionally, trial counsel states in his supplemental affidavit that it was a strategic decision

not to present evidence of Applicant’s friend, Chance, dying in his arms. However, Applicant’s

application indicates that trial counsel’s account of that incident is incorrect and that trial counsel

was unaware that the incident was an underlying circumstance of Applicant’s aggravated robbery

case. 3

Finally, trial counsel states in his supplemental affidavit he adequately investigated

Applicant’s cases for punishment. But, as stated above, Applicant alleges that trial counsel did not

sufficiently explain mitigation concepts to him or ask specific questions that would elicit such

evidence. Applicant has also presented evidence that trial counsel’s client file contained no

discovery, letters, or notes, and that counsel had only one jail-house meeting with Applicant prior

to the preparation of the PSI reports. The trial court shall therefore conduct a live evidentiary hearing

at which trial counsel shall be called to testify.

Applicant appears to be represented by counsel. If he is not, the trial court shall determine

whether he is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial

court shall appoint an attorney to represent him at the hearing. See TEX . CODE CRIM . PROC . art.

26.04.

The trial court shall make supplemental findings of fact and conclusions of law regarding

Applicant’s claim that counsel was ineffective for failing to investigate, pursue, and present

mitigating evidence at the punishment hearing. The trial court shall make specific findings as to the

credibility of trial counsel’s testimony, as well as any other witnesses’ testimony, at the live

evidentiary hearing. The trial court shall make further findings of fact as to trial counsel’s

conflicting statements regarding his conversations with Applicant’s family, including whether he did

discuss mitigating concepts with them, and if so, when those discussions took place and what

specific questions he asked them. The trial court shall also make findings as to what specific

questions counsel asked Applicant to elicit mitigating information and how counsel prepared

Applicant for the PSI process. Finally, the trial court shall make specific findings as to whether trial

counsel knew that the incident involving Applicant’s friend Chance was an underlying circumstance 4

of Applicant’s aggravated assault case and whether, given his allegedly incorrect rendition of that

incident, his decision not to present this evidence at punishment was reasonable. The trial court may

make any other findings that it deems relevant and appropriate to the disposition of Applicant’s

claim.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing the

transcription of the court reporter’s notes from the live evidentiary hearing and a copy of the exhibits

admitted, along with the trial court’s supplemental findings of fact and conclusions of law, shall be

forwarded to this Court within 120 days of the date of this order. Any extensions of time must be

requested by the trial court and shall be obtained from this Court.

Delivered: July 27, 2022

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