Ledet, Desmond

• Court: Court of Appeals of Texas
• Decided: February 5, 2015
• Docket: WR-82,778-01
• Status: Published

Opinion

§2,778 / TARRANT COUNTY TEXAS 11.07 WRIT NO. C~396-010272-1152016-A

COURT OF CRIMINAL APPEALS WRIT * (unknown at this time ` `§§EDE@@ to Applicant) REY§R§XNALAW §

EX PAR'TE 2@1]5 IN THE TEXAS COURT OF CRIMIE§§ 05

APPEALS, AUSTIN, TX Ab@% mower GP@rk

CO’>LO‘>¢O‘>CO’H»O‘>

DESMOND LEDET

OBJECTION #J;_OBJECTION TO THE HABEAS TRIAL COURT'S ADOPTION OF

INACCURATE, INCOMPLETE, AND INCORRECT FINDIMGS OF FACT AND LEGAL

CONCLUSIONS PROPOSED BY THE STATE REGARDING THE§DENIALFOF APPLI-

CANT'S FUNDAMENTAL RIGHT TO A PUBLIC TRIAL(GrdundS 1,3 &4) AND

HIS GROUND OF INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON DEFENSE

COUNSEL'S¢FAILURE TO OBJECT TO THE DENIAL OF THE PUBLIC’TRIAL RI- GHT( Ground #2)

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: TI,Desmond Ledet, the Applicant pro-se, in said writ of§habeas corpus. humbly and respectfully presents this honorable Court with the following 0 B J E C T I 0 N as stated above in the heading. I will refer to myself as the "Applicant". Today is Feb.B;j. 2015. On=JanvZB& 2015 the Applicant received from Prison Mailroom staff a letter notifying him that the trial court adopted the State's ix inaccurate,'incomplete, and incorrect findings of fact and conclu- sions of law. Please consider this objection timely as it is bea ing placed in prison mailbox TSF days after Applicant became aware of the habeas judges adoption, and notified that the ORDER from that judge ordered the entire writ transcript forwarded to this Court on Jan. 22, 2015. The Post Conviction writ Clerk in Tarrant

County ("Cindy") informed the Applicant's mother over the phone

that on the 23rd of January the entire writ/writ transcript, etc,

was forwarded to your Court. The Applicant has not yet received notice from Your Court-#~-`giving the writ number(assigned by this "p._l"_<_>f Ix. (A 42 PAGE EXHIBIT IS Now

ATTACHED)

Court of Criminal Appeals). Since the Applicant has been inform-

the writ was sent to this Court along with the trial court's er-

roneous adoption of the State's proposed findings and legal con-

clusions/

.AZ

this accurate OBJECTION is now presented to your Court:

THE TRIAL COURT'S FACT FINDINGS DO NOT ACCURATELY REFLECT THE EVIDENCE DEVELOPED IN THE HABEAS CORPUS RECORD THAT PROVES BY THE PREPONDERANCE OF THE EVIDENCE THE APPLICANT IS ENTITLED TO RELIEF.. EX parte Re€d, 271 S.W. 3d 693/ 729 (Tex.Crim.App.ZOOB).

THE COURT'S FACT FINDINGS ARE.INCOHPLETE AND DO NOT FULLY CONCEDE ALL OF THE EVIDENCE DEVELOPED IN THE HABEAS RECORD/ NOR IN THE REPORTER'S RECORD,THAT ESTABLISH BASED UPON THE PREPONDERANCE OF THE EVIDENCE THE APPLICANT IS ENTITLED TO HABEAS CORPUS RELIEF.

THE COURT'S FACT FINDINGS EXCLUDEMMULTIPLELESTABLISHED FA%I CTS RELEVANT TO THIS HONORABLE COURT'S RESOLUTION OF GROU- NDS #1-4 THAT ESTABLISH BY THE PREPONDERANCE OF THE EVI- DENCE THE APPLICANT IS ENTITLED TO HABEAS CORPUS RELIEF.

THE APPLICANT HAS ALLEGED SEVERAL MATTERS IN THE APPLICA-

TION NOT ADMITTED BY THE STATE IN THEIR FACTVFINDINGS A- p DOPTED BY THE TRIAL COURT AND SUBMITTED TO THIS COURT. BE- CAUSE THOSE MATTERS ARE DEEMED DENIED(TéX.COde Crim. PrOC. Art.ll.O7 §3(b)) THE APPLICANT FURTHER OBJECTS TO THOSE

DEEMED DENIALS¥AS BEING INCORRECT AND HERE AND NOW REASSE%`

RTS EACH AND EVERY FACTUAL”MATTER*ASSERTEDFIN~THE§APPLICA-

TION AS BEING CORRECT AND ESTABLISHING BY THE PREPONDERANCB

OF THE EVIDENCE THE APPLICANT IS ENTITLED TO RELIEF. THOSE MATTERS INCLUDE/ BUT ARE NOT LIMITED TO:

l)

3)

The visiting sit in judge at trial(Phillip Vick) failed to take every reasonable measure to accomodate public attendance during the voir dire proceedings of Appli- Cant's trial. Instead all at one time he summoned at- least §§, possibly 15 more, prospective jurors all into the courtroom's public seating area at one time, leaving no room in the gallery for Applicant‘s parent's who had to wait in the hall. See Application, p.6-7; Memorandum p.3-15; [v.3 RR p.5 lines 24-p.6 line 7].

The 396th Judicial District Court of Tarrant County at the time of Applicant's trial and presently seats app proxiamatelv 45 people in the public seating area. See Application, p.7; Memorandum p.6.

The Applicant was never informed of his right to a pub-j lic trial by the Honorable judge presiding at trial, nor by his defense attorney(Hon. Fortinberry), nor by the

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6)

7)

State, and did not knowingly, or intentionally relin- quish or abandon, his right to a public trial, and to due process, as guaranteed him by the sixth and four- teenth amendment of the\U.S. Constitution. See Appli~ cation, p.6-9; Memorandum, p.18; Memorandum, Exhibit C: Applicant's Unsworn Declaration-Statement.

The trial Court did not consider reasonable alternatives to closing the proceedings. See Application, p.6-9[v.3 RR p.5 lines 24-p.6 line 7]; Memorandum. p.l4516

The jury box was left empty during voir dire and could have been used to accomodate Applicant's parents,or to place enough prospective juror's there to allow some room in the public seating area for Applicant's two pa- rents to be able to observe voir dire. See Application p.7; Memorandum, p.lG-ll; W.3 RR p.l4 lines 12-14]

The trial judge presiding made no findings of some over- riding interest likely to be prejudiced by allowing Mr. and Mrs. Ledet(Applicantls parents) or any member of the public into the voir dire proceedings. See Application p.9; Memorandum p.16.

The Second DistrictNCourt of Appealsnhas.already reverss ed atleast one conviction in which the same exact judge (Hon. George Gallegher) who adopted the finding the Ap- plicant is nov objecting to denied the defendant his right to a public trial during voir dire in the exact manner the Applicant was denied a public voir dire. in the exact same courtroom. See Memorandum, p.26-27; gur- ner v. State, 413 S.W. 3d 442, 447(Tex.App.Fort Worth 2012, no pet.). ` '

THEHTRIAL COURT'S LEGAL CONCLUSIONS ARE INCORRECT AND CON- FLICT HEAVILY WITH WELL ESTABLISHED OPINIONS FROM THIS COURT AND THE UNITED STATES SUPREME COURT. THE IMPROPER LE- GAL CONCLUSIONS INCLUDE, BUT ARE NOT LIMITED TO:

The adopted legal conclusions fail entirely to acknow- ledge that the deprivation of a public trial is a ign- damental error according to this Court's precedent. Clark v. State, 365 S.W. 3d 333, 340(Tex.Crim.App.2012) ; & Neder v. United States; 527 U¢S. l, 7(1999). (Issue raised in Applicant's Ground #4). See "State's Proposed L¢.Findings...Conclusions of Law", p.l3, T4; p.l4, U7

a) Respectfully asserted, this Court should file and set this case for submission, using Applicant's Ground #4 to settle once and for all any residual ambiguity in the jurisprudence of this State concerning the funda-

p .II'I“'of Ix‘v

2)

-mental nature of the right to a public trial. See Clark v. State, 365 S.W. 3d at 340("fundamental er- ror occurs when certain constitutional rights are violated, such as... the right to a public trial") (citations omitted).

The adopted legal conclusions entirely fail to acknow- ledge that Applicant's Public trial Grounds are not ;;u simply Grounds that he was denied his right to a public trial, but instead that WITHOUT EVER HAVING KNOWLEDGE OF THAT RIGHT) OR EVER BEING INFORMED OF THAT RIGHT} HE DID NOT EVER INTENTIONALLY ABANDON OR RELINQUISH THAT RIGHT, Sneckloth v. Bustamonte, 412 U.S. 218, 241-42 (1973); Hodges v. Easton, 106 U.S. 408, 412(1982)

The State”s adopted legal conclusions erroneously cite United States v. Hitt, 473 F.3d 146, 155(5th Cir. 2006) for the proposition to this Court that the Applicant somehow waived his right to a public trial because his defense attorney,who never informed the Applicaht of j his public trial right,failed to object. See State's Proposed...Findings...Conclusions of Law", p.14, U6-7; p.l9, U57, 59.

The Applicant 0 B J E.C;T S to the trial Court's adopt- ed misapplication of "Hitt" ld. to this case. See Hitt/ 473 F.3d at 155(Where a defendant, WITH KNOWLEDGE, of the closure of the courtroom, fails to object, that de- fendant waives his right to a public trial). "Hitt" is non~applicable to this case, APPLICANT HAD NO KNOWLEDGE OF HIS RIGHT TO A PUBLIC TRIAL AND EVEN DEFENSE COUNSEL` HIMSELF IN HIS AFFIDAVIT STATED THAT HE DID NOT BELIEVE APPLICANT'S PARENTS BEING PROVIDED NO ACCOMODATIONS IN THE COURTROOM, BEING STUCK OUT IN THE HALL DENIED THE APPLICANT HIS RIGHT TO A PUBLIC TRIAL. See FOrtinberry Affidavit, p.2(response to Ground #4). _The Applicant can not be penalized for not having knowledge his own defense attorney was ignorant of. '

The Applicant 0 B J E C TwS to the trial court's adopt- ion of the State's erroneous proposition that Applicant failed to prove that the trial court closed the court~ room to the public. See State's Proposed...Findings... Conclusions of Law", p.l3, U3; p. 15, Ul4

All of the evidence in the habeas record that has been developed supports a legal conclusion that the trial court filled every available seat in the public seating

l.area("gallery") with potential juror's leaving no acco-

modations for the public, See Fortinberry Affidavit, p.

l:

a)'"the'galleny~was'full." l

See Fortinberry Affidavit,p.

p.Iv dr Ix

b) The Reporter's Record proves the public seating area was full with potential juror's. See Application, p. 6-7; Memorandum, p.3-15;[v.3 RR, voir dire].

c) "...the courtroom was full." Fortinberry Affidavit/ p 1. There was open space in the jury box where Appli- cant's parents could have set(conceded by defense counsel) but not in the public seating area("gallery" ) "the gallery was full". Fortinberry Affidavit, p.1

d) The 396th JudicialFDistrict Court only seats approxie amately 45 people in the public seating area.

The trial court closed the proceeding because the Court entirely failed to fulfill it's obligation to take every reasonable measure to accomodate public attendance at criminal trials." Steadman v. State, 360 S.W. 3d 499, 505(Tex.Crim.App.2012)(quoting Presley v. Georgia, 130 S.Ct. 721, 725(2010)

8) The Applicant O B J E C T S because the adopted legal

"When

conclusions,when compared with the indisputable evidence

entirely disregard the Court of Criminal Appeals and U- nited State's Supreme Court precedent holding that:

determining whether a defendant has proved that his

trial was closed to the public, the focus is not on whether the defendant can show that someone was actually excluded. Rather a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled

it's

obligation 'to take every reasonable measure to acco-

modate public attendance at criminal trials.'"

'Lili! v. state, 365 s.w. 3d 321, 331(Tex.crim.App.2012)(quoting Presley, 130 S.Ct. at 725L

9) The trial Court's adopted legal conclusions entirely

lO)

fail to utilize this Court's precedent for the proper

standard of review when determining whether the Appli- cant has proved that his trial was closed to the pub~ lic.

ATTACHED TO THIS OBJECTION IS A.TIME"FILEDYSTAMPED COPY OF: "APPLICANT'S PROPOSED FINDINGS OF FACT AND CONCLU- SIONS OF LAW REGARDING HIS GROUNDS ill #3, & 4...AND ALSO HIS GROUND #2..." The Applicant incorporates that attachment into this objection by reference.

a) Specifically, On Jan. 6, 2015, far in advance of the State proposing any findings or conclusions(State proposed on Jan.20,2015) the Applicant had already properly filed with the Post Conviction writ Clerk at Tarrant County District Clerk's office the accu-

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rate and correct proposed findings of fact and conclu- sions of law pertaining to the present Grounds #l-#4.

ll) Specifically attached to this objection is a 42 page do- cument that was filed on Jan. 6, 2015 that includes a co- py of defense counsel's(Hon. Fortinberry)iAffidavit,

(.

12) In concluding here this objection the Applicant asserts that he objects to the trial court's adopted findings of fact and legal conclusions concerning Grounds #l-#4 as being incorrect, inaccurate, and incomplete: AND FURTHER RE-INVOKES THE ATTACHED ”APPLICANT'S" PROPOSED FINDINGS AND LEGAL CONCLUSIONS AS BEING CORRECT.

a) Because the Applicant has already filed a copy of "Ap- plicant's proposed findings and legal conclusions with the Tarrant County District Clerk, a true copy of the 42 page document now attached, should have already been sent to this honorable Court by the clerk along- with the entire writ transcript, etc.

by For complete and accurate findings and legal conclu- »sions for Ground #l--- See the attached "Applicant's" proposed findings/legal conclusions at p.l-ll

c) For complete and accurate findings and legal conclu- sions:'for Groundi#Z--~'See the attached "Applicant's" proposed findings/legal

d) For complete and accurate findings and legal conclu- sions for Ground #3--- See the attached "Applicant's" proposed findings/legal conclusions at p.12-l6.

e) For complete and accurate findings and legal conclu- sions for Ground #4--- See the attached "Applicant's" proposed findings/legal conclusions at p.l7-20.

F: LASTLY, THE TRIAL COURT'S ADOPTED FACT FINDINGS FOR APPLI- CANT'S GROUND #2 ARE EXTREMELY INCOMPLETE/INCORRECT. See State's Proposed...Findings...Conclusions of Law". p.5, Ul3, Ul4, &TlS Compare with the correct and complete findings attached in ”Applicant's' proposed findings/legal conclu- \ sions p.21-37.

l) by defense counsel's own admission, based on his own sub- jective reasoning at the time of trial, he did not object to Applicant's parents having no accomodations in the public seating area because of INATTENTION AND NEGLECT]`

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not because it was some type of well thought out plan

or strategy designed to benifit the Applicant by depri- ving him of his right to a publis trial which is in it- self, based on this Court's presedent, for the "benifit " of the Applicant. Cameron v. State, 2014 Tex.Crim.App. , LEXIS 1536, *13.

a) See Fortinberry Affidavit, p.l asserting: C"I did tell them l did not know where they would sit during voir dire"[personal knowledge before voir dire began that the gallery was about to be filled with pros spective jurors]"l was busy getting ready for jury se- lection so 1 did not make an attempt to see to it they had accommodations in the courtroom during voir dire."[admittance of INATTENTION & NEGLECT, not stra~ tegyl.

b) Please compare the Court's incorrect finding cited`as. bove with the correct and completely accurate finding, deficient performance-for-failing to object in the.a- ttached "Applicant‘s" proposed findings/legal conclu- sions at p.25-36(emphasis added).

c) Attorney Fortinberry's failure to object, based on this Court's precedent, and the developed habeas re- Cord, was also based on a lack of knowledge of the ap- plicable law. See accurate presentation of law and facts establishing lack of knowledge of applicable law attached in NApplicant‘s" proposed findings/le- gal conclusions at p.29-36. `

d) Hon. Fortinberry's mistaken belief that either Appli- cant's parents(or the Applicant who was never inform- ed of the public trial right) had a duty to request him to find an alternative place for Applicant's pa- rent's to sit since the public seating area was full/ in order to somehow activate his duty to attempt to secure Applicant's public trial right is flawed and conflicts severly with Supreme Court precedent. See Fortinberry Affidavit, p. 1(response to Ground #2); See also attached "Applicant's" proposed findings/le- gal conclusions at p.32, U27--p.33

2) THE TRIAL COURT'S ADOPTION OF THE STATE'S LEGAL CONCLU- SIONS CONCERNING GROUND #2 ARE INCORRECT AND CONFLICT HEAVILY THE PRECEDENT OF THIS COURT AND THAT OF THE SU- PREME COURT.

a) The adopted findings/legal conclusions conflict with this Court's well established precedent for analyzing the prejudice prong of "Strickland" involving inefw fective assistance/structural error claims. See State- Vs Proposed...Findings...Conclusions of Law, p.5 U15,&

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b)

d)

p.l6, n23.

The Applicant cited the correct precedent from this Court for finding prejudice when the ineffective as- sistance of counsel Ground is based on structural er- ror in the Memorandum of Law filed with the Applica- tion. See Memorandum, p.l9, &27-28; See also the cor- rect precedent for analyzing deficient performance structural error Groundserproper standard of review based on this Court's precedent in the attached "Ap- plicant‘s" proposed findings/legal conclusions at p. 24-25.

The correct standard of review for deficient perfor- mance/structural error claims was settled by this Court 10 years ago in Johnson v. State, 169 S.W. 3d 223(Tex.Crim.App.2005).

The Applicant O B J E C TJS to the trial courtds~av dopted legal conclusions failure to abide by the pre- cedent of the honorable Court of Criminal Appeals while attempting to analyze Applicant's Ground #2(In- effective Assistance of Counsel/Structural Error.)

The Applicant 0 B J E C T S all of the legal conclu- sions in the trial court's adoption of the State's

proposed legal conclusions. See State's Proposed;.. Findings...Conclusions of Law, p.l5, U14, p.l6, U23.

THE APPLICANT OBJECTS TO THE ADOPTED FINDINGS RECOMMENDA¢U TION THAT RELIEF BE DENIED CONCERNING GROUNDS #l_#4 AND RE- SPECTFULLY RE-ASSERTS THAT HE HAS CARRIED HIS BURDEN TO SHOW THAT BASED URON THE PREPONDERANCE OF THE EVIDENCE HE IS ENTITLED TO THE LEGITIMA REMEDIA OF IMMEDIATE HABEAS CORPUS RELIEF, RESPECTIVELY.

PRAYER

The Applicant, Desmond Ledet, humbly and respectfully prays

that this honorable Court of Criminal Appeals will exercise this

Court's inherent power to disregard incomplete and incorrect fact

findings and legal conclusions that are contrary to the record,

and that do not follow this Court's precedent, or the precedent

of the United State's Supreme Court. as in this case. Further-

more the Applicant prays that this Court ”will enter alternative

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or contrary findings that the record supports.' Ex parte Flores y 387 S.W. 3d 626, 635(Tex.Crim.App.ZOl2). This Court can find such correct factual and legal findings,supported by the record, and the law,already laid out in the attached ”Applicant's” proper

ed findings/legal conclusions..THANKYOU.

Respectfull

Desmond Ledet #01651095 Telford Unit

3899 State Hwy.98

New Boston, TX 75570

CERTIFICATE OF SERVICE A true copy of the above has been mailed to the Tarrant Coun- ty, TX Criminal District Attorney's Office, located at 401 West

Belknap, Fort Worth, Texas 76196-0201 on Feb. 2, 2015.

p.IX \Of .IX

FlLED __ THOMAS- A wlLDER,.DlsT. cuan

TARRANTCOUNT%TEXAS JAN 06 2015 7 No.c-396-010272~1152016-A nME

Ex PARTE § IN THE 396th JUDICBXL DEmny § _ §f DISTRICT coURT oF

_ § DESMOND LEDET § TARRANT coUNTY, Tx A P P L I c 9 N T ' s P R o P ors E n F 1 N D 1 N c s 0 F g A c T A N D c 0 N c L U s 1 o N s

O F L A W R E G A R D I N G H I S G R 0 U N D S ill #3, & #4(DEPRIVATION OF THE PUBLIC TRIAL RIGHT DURING VOIR DIRE) AND A L S O H I S G R O U N D #2 (INEFFECTIVE ASSISTANCE BASED ON COUNSEL' S FAILURE TO OBJECT TO THE DEPRIVATION OF APPLICANT'S PUBLIC TRIAL RIGHT DURING VOIR DIRE), PRIOR TO, AND WITHOUT THE BENIFIT OF A LIVE EVIDENTIARY ` HEARING, WHICH APPLICANT STILL SEEKS

A: Procedural Background

l. Desmond Ledet was indicted for the alleged offense of Aggra- vated Sexual Assault of an adult woman.

2. Desmond Ledet pled not guilty in the 396th District Court of Tarrant County, TX.

3. On June 22, 2010 a jury was selected and the Applicant(Dess mond Ledet) began a 3 day trial.

4. At the time of trial Desmond Ledet was represented by attor- ney Curtis L. Fortinberry(Court Appointed). Attorney Fortin-. berry replaced Applicant's previous Court appointed Attorney on Sept. 14, 2009.

51 The trial was presided over by a retired sit in judge, the Honorable Phillip Vick.

6. The trial took place approxiamately 5 months after the United State's Supreme Court handed.down it's opinion on Jan.l9, 2010 in Presley v. Georgia, 130 S.Ct. 721(2010) affirming that under well settled lav, the Sixth Amendment right to.a public trial extends to voir dire and that any closure during voir dire must meet the standards provided in 1984 by the Su- preme Court in Waller v. Georgia, 467 U.S. 39(1984)1

7. Ultimately Ledet was found not guilty of Aggravated Sex. As- sault. Instead he was found guilty of the lesser submitted by the State after the close of the evidence, Sexual Assault. The jury charge allowed the jury to pick between the two..

8. The conviction was affirmed on direct appeal. PDR was refused This original writ of habeas corpus followed.

p.l of 42

These proposed findings have been constructed prior to a live evidentiary hearing, and without the benifit of such hearing , which Applicant Still seeks. 1 '

The Applicaht has filed motions objecting to the lack of a li- ve evidentiary hearing to develop the facts»

In the event a hearing is held in the future the Applicant has the right reserved to alter, amend, or supplement these propoe sed findings. ‘ '

Procedural History of Post-Conviction Writ of Habeas Corpus

On July 28, 2010,.Desmond Ledet filed an Application for a Writ of Habeas Corpus Seeking Relief from Final Felony Con- viction Under Code of Criminal Procedure, Article 11.07.

This Writ was assigned cause number: C-396-010272-1152016-A and assigned to the 396th Judicial District Court of Tarrant County, Texas.

This was the first post-conviction writ filed related to this

conviction. Desmond Ledet alleged 34 grounds seeking habeas corpus relief.

These findings relate only to his grounds #l~#4/ which-rela# te, in one way or another,to his allegations that he was dey. prived of his right to a public trial without having knowledge of, or ever intentionally waiving or relinquishing that right;

And that his trial attorney, Curtis L. Fortinberry/was inef-

fective for not objecting to the deprivation of that right(the Court making no accomodations for his parent's during voir di- re, instead filling the gallery with prospective.juror's, ef-

fectively closing the proceeding from the public, without fir- st of all performing the mandatory test(which was well settled law at the time of this trial(laid out in "WALLER" &"PRESLEY'_

)).

v.'l`hese findings are being proposed prior to and without the be-

nifit of any explaination in the habeas record as to what the trial judge, The Honorable Phillip Vickls, subjective reas- oning was, when hey failed to perform the "WALLER TEST" prior to filling up the entire gallery with prospective jurors, which left no accomodations for the public. Nevertheless the Reporter's Record, and Defense counsel's Affidavit on these Groundsestablish by the preponderance of the evidence that he failed to perform the "WALLER TEST” and filled up the gallery leaving no accomodations for the public.

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lO.

ll.

12.

The Applicant did, in his "SUBSEQUENT REQUEST`FOR A LIVE EVI- DENTIARY HEARING;...UNRESOLVED FACTS PERTAINING TO GROUNDS #l~4..."(on p.2-3 of 5) seek a hearing to, inter alia',)ob- tain factual information from judge Phillip Vick-as to "why did he fail to abide by the dictates of 'WALLER' & 'PRESLEY'

As stated above the Applicant has filed motions objecting to

the lack of a live evidentiary hearing. lf one takes place in the future Applicant has the right reserved to alter, amend/

or supplement these proposed findings;

Although legally a trial court's subjective reasons for not` performing the "WALLER TEST", while making no accommodations for the public are irrelevant to the question of whether or not the violation actuallyoccurred,since "a trial judge must at all times maintain control of the process of jury select-s tion." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512(1984);

&"”trial courts are obligated to take every reasonable meas

sure to accommodate public attendance at criminal trials.'" Steadman v. State, 360 S.W. 3d 499, 505(Tex.Crim.App. 2012)(

.quoting Presley, 130 S.Ct. at 725).

The Applicant alleged that the trial court's failure to per- form the "WALLER TEST", while failing to take every reasonas ble measure to accommodate the public at his trial denied him his right to a Public Trial, and to Due Process as guaranteed him by the Sixth and Fourteenth Amendment of the United Sta- tes Constitution, during the entire voir dire proceeding.

Because the factual and legal findings for Ground #Z(Ineffec+ tive Assistance for failing to object to the Court's failure to perform the "WALLER TEST" or make accommodations for the public) are equally supported by the finding and conclusions for Grounds #l.#3, & #4. The findings inj support of Ground #2(IAC) will be proposed last. All of the findings for Grou- nds #l, #3, & #4 are incorporated into the findings and con- clusions for Ground #Z(IAC),

Findings and Conclusions Related to Ground #lCno waiver)

"APPLICANT WAS DENIED WITHOUT INTENTIONAL RELINQUISHMENT OR ABANDONMENT, NOR KNOWLEDGE OFL OF HIS RIGHT TO A PUBLIC TRI- AL, AND TO DUE PROCESS, AS'GUARANTEED HEM BY THE SIXTH AND FOURTEENTH AMENDMENT QF THE UNITED STATES CONSTITUTION.(DUR~ .ING THE ENTIRE VOIR DIRE PROCEEDING)"

The Record contains no evidence that the Applicant was ev- er notified of his right to a public trial or that he ever intentionally relinquished or abandoned that right. There is nothing in therecord to indicate at all that he had any know-

p.3 of 42

ledge'of his public trial right/ or what constituted closure.

This was the first time the Applicant had ever been.a defen- dant in a trial.'

Nothing in the record indicates the Applicant, at the time

of trial, was familiar with the mandates of "PRESLEY" or " WALLERV or that he had ever heard of the "WALLER TEST" so that he would have known that the Court's filling up of the gallery(public seating area) with prospective juror's/lleav-w ing no room in the gallery for the public to sit, without fi- rst of all performing the WALLER TEST was in violation of

his Sixth and Fourteenth Amend._right to a public trial.

The Supreme Court has noted, "the Constitution requires that every effort be made to see to it that a defendant in a cri- minal case has not unknowingly relinquished the basic pro~ tections that the Framers thought indispensible to a fair trial.“ Sneckloth v. Bustamonte, 412 U.S. 218, 241-42(1973).

Consequently, ”every reasonable presumption should be indul- ged against" waiver of a fundamental right. Hodges v. Easton, 106 U.S. 408, 412(1982)

The right to a public trial concerns the right to a fair tri-

`i. Waller, 467 U.S. at 46. ("The requirement of a public

trial is for the benifit of the accused; that the public may see he is fairly dealt with and not unjustly condemned...")@

"The question of an effective waiver of a Federal constitu- tional right in a proceeding is of course governed by fed- eral standards." Boykin v. Alabama, 395 U.S. 238, 243(1969)

"Therefore for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or priviledge." Stringer v. Sta- te; 241 S.W. 52, 56(Tex.Crim.App.2007)(quoting Johnson v. Zerbst, 304 U.S. 458, 458(1938)(overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477(1981).

The Applicant submitted an "UNSWORN DECLARATION" labeled "Ex- hibit C" attached to the 11.07's Memorandum's Appendix de- claring, on the second page: "This was the first time I ever been to a trial so I had no knowledge otherwise. The judge never asked me did I know I had a_right to a public trial. nor did he explain that right to me and ask me did I choose to freely or voluntarily give up that right. If he had of ma- de me aware of that right I would never have voluntarily ma- de my parents sit out in the hall for well over an hour, If anybody even my lawyer had of made me aware of that right. I would have never given it up. But the truth is no one in that courtroom, absolutely none, not the bailiff, nor theju- de,nor my lawyer, nor the state prosecutor, nor anyone, said

p.4 of 42

13.

l4v

15.

anything to me at all about my right to have my familly in the courtroom. In fact, from the impression given to me

by the judge, my lawyer, and the bailiff, I thought it was perfectly normal for the public to be kept out of voir dire , although I did not like it. I was left totally ignorant of my right to a public voir dire proceeding, point blank. In fact the courts decision to exclude the public from voir dire was made in my absence before I even entered the court- room. I was not allowed to be a part of that decision per- iod. I am perfectly willing to be hooked up to any machine or lie detector test or whatever it'takes under the penalty of perjury and forfeiting my whole writ, every ground, I do not have any problems with it at all. I am telling the truth. (p.2 of ”Exhibit C", Memorandum's Appendix).

Defense Attorney, Curtis Fortinberry,did not oppose the Ap- plicant's above said statementh in his Affidavit to this Court addressing Applicant's G&ounds #l-#4; the part regarc ding Applicant's assertion that neither the Defense counsel/ nor the trial judge, nor the bailiff, nor the prosecutor' ' notified the Applicant of his public trial right.

\ Defense counsel did not oppose or object to the Applicant's assertion that "l was left totally ignorant of my right to a public voir dire proceeding, point blank.” '

Defense counsel, Curtis Fortinberry's sworn Affidavit to this Court reveals(in his own words) that he : "was busy getting ready for jupyselectionso I did not make an at- tempt to see to it that they” Applicant's parents "had ac- commodations in the courtroom during voir dire. "

Attorney Fortinberry's above statement makes it clear that he was not attentive to Applicant's public trial right and was busy doing other things besides notifying the Applicant

. Of the public trial right.(A COPY OF AFFIDAVIT IS ATTACHED)

Attorney Fortinberry, in his Affidavit made it clear that he himself did not ”believe that” Applicant's."parents not being in the courtroom",after conceding that "the gallery was full" "during voir dire”,and that the trial judge "did not perform a sua sponte Waller test",”constitutes a vio- lation of his sixth and fourteenth amendment rights to a public trial." (Fortinberry's Affidavit-on\Grounds #l~#4);

Which establishes as a fact that Attorney Fortinberry was ignorant of the fact that the sixth and fourteenth Amend. right to a public trial extends to voir dire and did not notify the Applicant of that right he himself was ignorant Of.(HIS AFFIDAVIT IS ATTACHED AT REAR OF THESE FIRDINGS)

p.5 of 42

l6.

17.

18.

19.

20.

21.

E:

l.

Due to the unique facts of this case, the 5th Cir. holding., that:"Where a defendant with knowledge of the closure of the courtroom, fails to object, that defendant waives his right to a public trial" is entirely non-applicable to this parti- cular case. United States v. Hitt, 473 F.3d 146, 155(5th Cir. 2006)

Not only was the Applicant without any of the required 1 knowledge for the reasoning in "Hitt" for finding waiver to apply in this case, but defense counsel in his Affidavit to this court clearly stated: "to my knowledge the courtroom was not closed to the public.”(SEE REAR OF THESE FINDINGS)

"And the defendant cannot object apart from counsel. Due to his lack of knowledge in legal procedure, a defendant may. not even recognize his attorney's errors(after all, navigat- ing the legal system is what the attorney is there for) and, in any event, the defendant should not have to risk aleina-

uting the attorney, who is the defendant's only advocate in`

the legal'proteeding." Blue v. State, 45 S.W. 3d 129, 140( Tex§Crim.App.ZOOO)(Keller, J., dissenting in which McCormick ,P.J., and Womack, J., joined)(citing Robinson, v. State, 16 S.W. 3d 808, 809#810(Tex.Crim.App.2000).

Mr. Ledet can not be faulted for not having legal knowledge that his own defense attorney is ignorant of.

The closure in this case was done in a perfunctory manner, no motion was filed(as in "Hitt" at 154) seeking closure that could have been objected to. This closure was unanounced.

The record, nor defense counsel's_Affidavit, does not in any manner recognizable by law, indicate that the Applicant knows ingly, or intentionally, relinquished or abandoned`the sixth and fourteenth AmendmentLLS. Const. right to a public trial during voir dire. THIS COURT CONCLUDES THE APPLICANT DID NOT WAIVE HIS RIGHT TO A PUBLIC TRIAL AS GUARANTEED HIM BY THE SIXTH AND FOURTEENTH AMENDHENT OF THE UNITED STATES CONSTITU- TION. See Lilly v-/State, 365 S.W. 3d 321, 327~28(Tex.Crim._ App.2012)(hearing the public trial claim after finding evisr dence in the record to rebut any presumption the appellant intended to waive his claim); see also Walton v. Briley, 361 F.3d 431, 434(7th Cir. 2004)(conc1uding that failure to ob- ject at trial did not result in a waiver of defendant's claim that his right to a public trial was violated).

Findings and conclusions related to Ground #l(the Court fai- led to fulfill it's obligation to take every reasonable mea- sure to accommodate public attendance at Desmond Ledet's(Ap- plicant) trial during the entire voir dire proceedingJ

The totality of the evidence affirms.voir dire was closed.

p.6 of 42 \

"the first step for a reviewing court when analyzing whether a defendant's right to a public trial was violated is to de- termine if the trial was in fact closed to the public." Lil-

111_365 $-w-_ 3d at 329-1

"whether a particular defendant's trial was closed to the public should be ascertained on a case-by-case basis after considering the totality of the evidence;" Id. at 330

The mere fact that a trial judge never ruled that the voir dire proceedings were closed to the public does not defeat a claim that the proceedings were closed when the totality of the evidence reveals the Court filled the gallery with prospective jurors, and made no accomodations for the public . Cameron v. State, 2014 Tex.Crim1App;LEXIS 1536, *2-*15.

In this case the Applicant(Desmond Ledet) attached a copy of thelReporter's Record of voir dire to his writ Applicationo in the Memorandum's Appendix,which reveals the Court summon- ed the large panel of prospective juror's to the courtroom.»

.all at one time,filling up every available seation every row

as soon as the 3 day trial began.

The trial Court entirely failed to perform the WALLER TEST

n prior to filling the gallery with prospective jurors@

a: the Court did not advance an overriding interest that was likely to be prejudiced by accommodating the public.

b: the Court did not make findings of fact sufficient to support it's failure to make accommodations for the public.

c: the Court did not consider every reasonable alternati- ve to closing the proceeding,by$entirely,failing to fulfill it's dbligationg"to take every reasonable measure to acco- mmodate public attendance at criminal trials*, since in this case Applicant's parents could have set in the empty jury box during voir dire, instead of having to wait in the hall because the gallery was full. Steadman v. State, 360

4`S.*W. 3d 499, 505(Tex.Crim.App.2012)(quoting Presley, 130

s.cr. at 725).

d.in this case this Court does not need to determine whe- ther or not the closure was Fno broader than necessary to protect" an "overriding interest that is likely to be pre- judiced" since the fact is the trial judge did not, prior to» filling the gallery with prospective jurors¢advance an over- riding interest likely to be prejudiced. Steadman/360_S;W. 3d at 504(quoting Waller, 467 U.S. at 48).

.Defense counsel affirmed in his Affidavit that during voir

dire: "...the Courtroom was full" and "the gallery was full.

p.7 cf 42

8. Defense counsel confirms in his Affidavit that the trial "did not perform a sua sponte Waller Test" prior to filling the courtrooms gallery with prospective jurors.

9. "The burden of considering reasonable alternatives to closure rest squarely upon the trial court itself,..." Steadman,_360 S.w.`3d at 505(citing Presley, 130 S.ct. at724-25). 'In this particular case the trial court did not carry that burden.

10i The trial court did not, in order to accommodate the pub- lic, reserve "one or more rows for the public" ld.

11. The trial court did not divide "the jury venire panel to re- duce courtroom congestion." Id

12. The Reporter“sRecord establishes as a fact that during voir dire, that although the gallery was full,the jury box wasv empty.(Fortinberry's Affidavit confirms space in courtroomY.

13. The space in.the jury box could have not only been used to accommodate Applicant's parents , Ralph and Luvenia Ledet;_ who waited in the hall because no accommodations were ma- de for them in the gallery,. but the trial court could have also opted to place atleast 12 of the huge panel of pro- spective jurors in the jury box which would have made space for Applicant's parents and the public in the gallery{

14. Applicant"s parents were not obligated to demand that accom- smodations be made for them in the gallery,in order for the trial court,to consider reasonable alternatives to filling the gallery with prospective jurors.

15. "There is no burden on the defendant to proffer alternativ- es." Id. at 505. The Applicant had no burden to insist that the Court fulfill it's duty to perform the Waller Test and consider reasonable alternatives in order to activate the Su-

zpreme Court mandated duty upon the Court to perform the Wal- ler Test prior to closing the proceeding to the public.

16. In Cameron v State, 2014 Tex.Crim.App. LEXIS 1536{ the Texas` Court of Criminal Appeals found that the voir dire proceed- ing was constitutionally closed to the public even after the trial judge repeatedly stated on record: "It's an open trial ...I've never ruled that the public is excluded...if you want we can open up those doors in the\back and have them stand where they can observe and hear every single thing that's going on...I'm telling you that you can have people in this courtroom;;il'm not making a ruling that anybody is excluded...I haven't told you that you cannot have people in the courtroom...The court did not close the proceedings by any means,..we will do our best to accommodate them in areas

;around the gallery.,." Id . *l- *8

\.

p.e of 42 ' ,_ ' \

20:.

21-

22.

23.

24.

In WCameron? regardless of the trial court's multiple clai-' ms on record that the voir dire proceedings were open to the public, the gallery still remained full of prospective jur-

rors, The Court of Criminal Appeals quickly recognized that 7 "the record sufficiently shows that the voir dire proceed-

ings were closed” ldf at *12.

Both of Applicantfs parents also submitted Affidavits attach- ed to the Memorandum of law attached to his writ Application explaining that they had to wait in the hall due to the lar- ge panel of prospective jurors filling up the gallery.

The Applicant also explained in his Unsworn Declaration at- tached also to the Memorandum that his parents had to wait

in the hall during voir dire due to the large panel of pro- spective jurors. ` .

Defense counsel confirmed in his Affidavit that the Applica- nt's parents were present prior to the outset of voir dire and because of the situation,he claims, that he told them that he did not know where they would sit during voir dire. Which is the same thing the trial court repeatedly said also in "Cameron" Id.‘ '

Based on the Record and the totality of the evidence this court finds all allegations that the courtroom was full with .prospective jurors during voir dire to be credible. ` "Cameron"(ld.) is a published opinion handed down from the Court of Criminal Appeals on Oct. 8, 2014, prior to this court handing down any facts or conclusions,while this writ of habeas corpus was still pending a recommendation from this court. The CCA's decision in "Cameron" is binding on this court's analysis in this case.

THIS COURT CONCLUDES THAT BASED ON THE TOTALITY OF THE EVI- DENCE,IN THIS PARTICULAR CASE, THAT THE VOIR DIRE PROCEED-~ INGS WERE, IN FACT, CLOSED TO THE PUBLIC.

In furtherance of this conclusion, and although there is suf- ficient evidence to show that Applicant's parents. were pre- sent,and-desired accommodations in the gallery,this Court ta- kes judicial notice of the opinion in Lilly, at 331(quoting (Presley, at 725) that:"When determining whether a defend- ant has proved that his trial was closed to the public, the focus is not on whether the defendant can actually show that someone was actually excluded.' Rather a reviewing court mue st look to the totality of the evidence and determine whe- ther the court fulfilled it's obligation 'to take every rea- sonable measure to accommodate public attendance at criminal trials.'" Defense counsel does not contest the facts in Ap-

'plicant's parent”s Affidavitsjsaying that once voir dire'

was over he informed them of when to enter courtroom.

p.9 Of 42

25. THIS COURT CONCLUDES THAT THE TRIAL COURT IN THIS CASE FAILED TO PERFORM IT'S OBLIGATION TO TAKE'EVERY REASONABLE MEASURE TO ACCOMMODATE PUBLIC ATTENDANCE AT CRIMINAL TRIALS.'”

26. AS A MATTER OF LAW THE VOIR DIRE PROCEEDINGS WERE CLOSED TO THE PUBLIC. ' v

27. In "Cameron"at *12 the Court of Criminal Appeals stated: "Ha- ving held that the voir dire proceeding were,in fact, closed to the public, we move on to the Waller test to determine if

lthis.closure was constitutionally justified under the Sixth Amendment;" »

F: Findings and Conclusions related to Ground #1(the closure was not constitutionally justified under the Sixth Amendment)

ll "Under Waller, a closure will be justified only if the trial court makes findings that closure is necessary to protect an overriding interest and the closure is narrowly tailored to protect that interest." Cameron",at *lZ(citing Waller, 467 U.S..at 45). THIS COURT CONCLUDES THAT BECAUSE THE COURT'DIDY- NT MAKE FINDINGS THAT THE CLOSURE WAS NECESSARY TO PROTECT AN OVERRIDING INTEREST, THE CLOSURE WAS NOT CONSTITUTIONALLY JUSTIFIED. -

2. "A court also must consider all reasonable alternatives." "Cameron", at *l3(citations omitted).THE JURY BOX WAS OPEN, THE RECORD DOES NOT SUPPORT A FINDING OR CONCLUSION THAT THE COURT CONSIDERED ALL REASONABLE ALTERNATIVES‘AND SENSIBLY REJECTED THEM. BECAUSE THE TRIAL COURT DID NOT,THIS COURT AGAIN CONCLUDES THAT THE CLOSURE WAS NOT CONSTITUTIONALLY JUSTIFIED.

A4. FINALLY, THE TRIAL COURT'S ACTION IN SUMMONING THE HUGE PA- NEL OF PROSPECTIVE JUROR'S INTO THE COURTROOH ALL AT ONCE, AT THE VERY START OF VOIR DIRE,`WHICH.FILLED THE GALLER¥;LEAVING !NO %CCOHHODATIONS IN GALLERY FOR THE PUBLIC, FELL BENEATH THE "TRIAL COURTWS "OBLIGATION7'TO TAKH EVERY REASONABLE HEASURE TO ACCOMHODATE PUBLIC ATTENDANCE AT CRIHINAL TRIALS.'” Lilly/ at 331(quoting Presley, at 725)-

5. THE CLOSURE VIOLATED APPLICANT'S SIXTH AND FOURTEENTH AHEND- MENT RIGHT TO A PUBLIC TRIAL.

6. IN 1948 , iann re oliver, THE SUPREME HELD THAT THE PUBLIC TRIAL TRIAL cLAUSE oF THE stTH AMENDMENT APPLIED To sTATE cRIMINAL PROCEEDINGS THROUGH THE FoURTEENTH AHENDMENT. 333 U.S. 257(1948). The closure violated DUE PROCESS.

p.lO of 42

G: Conclusion of Law and Recommendation Concerning Ground l:

1: This Court, after weighing the evidence from the Reporter's Record, the Application filed, the supporting documentation in the Application, The Affidavits from Defense counsel, and both of Applicant’s parents, and Applicant's own "Unsworn De» ,claration"(statement), as well.as the foregoing factual and' legal conclusions, etc., concludes by the preponderance of the evidence and applicable law that:

a) The Applicant did not knowingly or intentionally relin- quish or abandon his right to a public trial under the si- xth and fourteenth Amendments of the U.S. Constitution.

b) The voir dire proceedings were in fact closed to the pub- lic.

c) The closure was not Constitutionally justified, and it violated the Applicant's sixth and fourteenth Amendment right to a public trial. ‘

d) The error is structural- A'Vdefendant should not be requi- red to prove specific prejudice in order to obtain relief for a violation'" of this right. Steadman, 360 S.W. 3d at 510(quoting Waller, 467 U.S. at 49-50)(“it necessitates a new triall" Id. at 511) ~

2. This Court recommends GRANTING the relief sought by the‘Ap-\ plicant, Desmond Ledet.l v

Signed on this the Day of *20

I(PLEASE SIGN)

v Judge Presiding

p.ll of 42

(Note: Again, findings and conclusions regarding Ground #2, in- effective assistance of counsel, will be presented last herein)

H. Findings and Conclusions Related to Ground #3(sua sponte):

"IN LIGHT OF THE COURT'S FAILURE TO SUA SPONTE PERFORM THE" WALLER TEST' IN COMPLIANCE WITH 'PRESLEY‘ & 'WALLER',‘AND THE iFUNDAMENTAL NATURE OF THE RIGHT TO A PUBLIC TRIALy APPLICA% NT’S DEPRIVATION OF THAT RIGHT(EXPLAINED_IN GROUND #l) CON- STITUTES PLAIN ERROR AS DEFINED BY THE S.CT lN U.S. v. OLANO , 507 U.S. 725(1993)"

1. All of the fact findings and legal conclusions for Ground #l are incorporated into the findings of facts and conclusions for this_Ground #3.

2. The trial judge failed to perform his duty to sua sponte per- form the "Waller Test". - \ 3. "But Presley also puts the onus squarely on the trial court ` to identify for the record those specific concrete facts" that will justify closure. Steadman, 360 S.W. 3d at5506.

4. "The burden of considering reasonable alternatives to clo- sure rest squarely upon the trial court itself, regardless of what party seeks closure, and there is no burden on the defendant to proffer alternatives." Steadman, 360(Citing Presley 130 S.Ct. at 724-25). ` - .

5{ ln Steadman, reversing for a new trial, the Court Of Crimin- al appeals held that the trial court did not "satisfy the 'obligation' that both Presley and Waller unequivocally im- pose upon trial courts 'to consider all reasonable alterna- tives to closure'" Id. at 510(Citing Waller, at 48),

61 THIS COURT CONCLUDES THAT THE TRIAL COURT HAD AN:,"UNEQUIVOCALv DUTY TO SUA SPOUTE PERFORM THE WALLER TEST. THE APPLICANT IS NOT TO BLAME FOR THE COURT'S FAILURE IN THAT REGARD. NO ACT- ION OR INACTION, OBJECTION OR FAILURE TO OBJECT, EXCUSES THE TRIAL COURT OF IT'S OBLIGATIONS UNDER PRESLEY AND WALLER TO PERFORH THE WALLER TEST BEFORE IT COULD CONSTITUTIONALLY CLOF SE THE VOIR DIRE PROCEEDINGS. THE LAW IS WELL SETTLED,

1an DuTY`~fIs- A' c`<`)NT`INUIuc.v DUTY REGARDLESS _.oF CBJEchoN oR NoT.

l_ Findings and conclusions related to ground #3(the public .trial right the Applicant was deprived of is fundamental)

1. The Court of Criminal Appeals has referred to the public

trial right as "fundamental” See, e.g., Clark v. State, 365 S.W. 3d 333, 340(Tex.Crim.App.2012).

p.12 of 42`

1999,the United States Supreme Court held that the right to a public trial is so essential to the integrity of the criminal justice process that it's violation falls into la limited class of fundamental constitutional errors that defy analysis by harmless error standards." Neder v. United States, 527 U.S. l, 7(1999)(internal quotations omitted).

THIS COURT CONCLUDES THAT THE SIXTH AND FOURTEENTH AHENDMENT RIGHT TO A PUBLIC TRIAL THE APPLICANT WAS DEPRIVED OF WHEN THE TRIAL COURT FAILED TO SUA SPONTE PERFORM THE WALLER TEST BEFORE FILLING THE GALLERY WITH PROSPECTIVE JURORS LEAVING NO ACCOHHODATIONS FOR THE PUBLIC WAS AND IS A FUNDAHENTAL RIGHT.

Findings and Conclusions related to Ground #3(in light of the above facts and conclusions the deprivation of Appli- cant's right to a public trial(explained in Ground #l) consti-

'tutes plain error as defined by the S.Ct. in U.S. v. O-

lano, 507 U.s. 725(1993»..

A reviewing court may grant relief for "plain error" even if- the error was not raised and preserved at trial or sentencing

Tex.R.EvidL 103(d) is modeled after the analogous federal provision and substitutes "fundamental" error for which a ti- mely objection is unnecessary for "plain error" in the federal rule. .

In Blue v. State, the Court of Criminal Appeals recognized a "plain error"(judges comment damaging the presumption of in- nocence)as:"fundamental error" citing mulitiple "plain error" cases from federal courts while reversing the judgement. 41 S.W. 3d 129/ 131-133(Tex.Crim.App. 2000).

THIS COURT coNLUDEs THAT THE DEPRIVATIon oF APPLIcANT's RIGHT TO A PUBLIC TRIAL(EXPLAINED IN GROUND #1) coNsTITUTEs "PLAIN ERROR" AND Is REvIEwABLE WITooUT AN oBJEcTIoN.

Plain error is error that is "clear" or "obvious" and affects the defendant's Nsubstantial rights"v Olano, 507 U.S. at 732- 735.

This court coNcLUDEs that it was-Iclear:and»obvious" to the4 trial judge that he had filled the gallery with prospective juror's, failing to accommodate the public, and without first

' of all sua sponte performing the "Waller Test"

Even though defense counsel failed to object the trial judge had a personal obligation, a continuing duty, regardless of whether a party objected or not, to sua sponte perform the PWaller Test? prior to filling the gallery with prospective

=p.ia dr 42

10.

14.

15.`

16.

jurors, making no accommodations for the public, in violation of the Sixth and Fouuteenth Amendment of the United States Constitution. k ‘

»This Court concludes that the public trial right is so fun-

damental that it was clear & obvious` to the "trial judge" , who in order "To preserve fairness ...must at all times maintain control of the process of jury selection", that his actions deprived the Applicant of his right to a public trial , and were not in compliance with Presley and Waller. Press- Enterprise Co. v. Superior Court, 464 U.S. 501, 512(1984).

This Court concludes that the error affected Applicants "sub- stantial rigts.” Olano, 507 U.S. at 734-35-

This Court concludes that the trial judge, through his act- ions, closed the courtroom during voir dire in violation of Waller and Presley/ the error is structural, not harmless-- prejudice is automatically presumed--and a violation of sub- stantial rights has occurred.

In Johnson v. United States, 520 U.S. 461, 468-69(1997),the Supreme Court noted the existence of a limited class of cases , such as Waller, where the errors involved do affect sub- stantial rights.

Relief for Plain Error may be granted only if the error seriously affects the fairness, integrity,or public reputa- tion of judicial proceedings." Olano, 507 U.S. at 736

This Court concludes that the deprivation of Applicant's pi- ght to a public trial in this particular case impacts the fairness, integrity, and public reputation of Applicant's trial.

The public trial right Applicant was deprived of, without ev- er having waived it,’is important because "the spectators learn about their government and acquire confidence in their judicial remediesl"_ln re Oliver, 333 U.S. at 270 n.24(1948)( citations omitted).

ln In re Oliver and Waller,the Supreme Court incorporated the public trial right under the Fourteenth Amendment, using a test based on fairness principles.

The constitutional right to a public trial, Applicant was de- prived of during voir dire, ensures fairness, maintains pub- lic confidence in the criminal justice system, provides an outlet for community reaction to crime, provides incentives for judges and prosecutors to handle their dutiesresponsibly, encourages witnesses to come forward, and discourages per- jury. Waller, 467 U.S. at 46.

p.14 of 42_

22.,

23§

Conclusions of Law and Recommendation Concerning Ground #3:

Press-Enterprise Co. v. Superior Court, 464 U.S. at 508-09 (Public Trial helps ensure fairness). '

Public trials place ”effective restraint on possible abuse of judicial power." In re Oliver, at 270 '

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-05 (1982)(public trials promote informed discussion of govern- mental affairs)

"Essentially ,the public trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers witnesses, and jurors will perform their respective funct- ions more responsibly in an open court than in secret pro- ceedings. Afair trial is the objective¢ and a 'public trial' is the institutional safeguard for attaining it." Estes v. Texas, 381 U.S. 532, 588(1965)(Har1an, J., concurring)(ci- tation omitted). '

" The corrective influence of public attendance at trials for crime was considered important to the liberty of the people, and it is only by steadily supporting the safeguard that it is kept from being undermined and finally destroyedl Davis v. united States, 247 F.3d 394,»395(8th cir} 1917).

"The purpose of the public trial was to guarantee that the accused would be fairly dealt with and not unjustly con- demned. History has proven that secret tribunals were ef- fective-instruments of oppression." Estes v. Texas, 381 U.S. 532, 538~39(1965). `

Based on all the foregoing facts,and legal findings and ci- tations, and because "our system of law has always endeavors ed to prevent even the probability of unfairness"and "¢-. Fjustice must satisfy thyappearance of justice", THIS COURT AGAIN CONCLUDES THAT THE CLEAR AND OBVIOUS ERROR NOT ONLY AFFECTED APPLICANT'S SUBSTAHTIAL RIGHTS} BUT ALSO DEFINAT- LY AFFECTED THE FAIRNESS, INTEGRITY, OR PUBLIC REPUTATION OF APPLICANT'S TRIAL,- ln re Murchison, 349 U.S. 1331 136(

1955)

This Court, after weighing the evidence from the Reporter's Record, the Application filed, the supporting documentation in the Applicationj etc., as well as the foregoing factual and legal conclusions for this ground and ground one, etc., concludes by the preponderance of the evidence and applica-. ble law that: '

p.15 of 42

a) The trial judge had a sua sponte duty under Waller and Presley to perform the Waller test before he could con- stitutionally justify filling the gallery with prospecti- ve jurors, leaving no accommodations for the public.

b) the trial judge failed to perform the above said sua sponte duty/obligation.

c) the public trial right Applicant(Desmond Ledet) was de- prived of is a fundamental right under both State and Federal precedent.

.d) The closure that violated both Waller and Presley in this trial during the voir dire proceeding is per se structu- ral error, error the Applicant did not waive, that meets the plain error test and requires reversal because:f

ll it is clear and obvious

2. it clearly implicates substantial rights, being structural error.

3. it is the kind of defect that seriously impacts the "integrity or public reputation of judicial proceed- ings," thus meeting the requirements of Olano, 507 U.S . at 736(quotations omitted).r

4. it is the type of error that affects adversely the stv fairness of the trial.

5. lt is PLAIN ERROR.

6. It meets all four prongs of Olano to be deemed plain error, and; '

7. absent an objection, as in this case, this Court con- cludes this plain error can, and should be corrected.

_2. This Court recommends GRANTING the relief sought by the Applicant, Desmond Ledet.

Signed on this the Day of _ 20

(PLEASE SIGN)

Judge Presiding

p.16 of 42

Findings and Conclusions Related to Ground #4(fundamental er- ror)

"THE DEPRIVATION OF APPLICANT'S STXTH AND FOURTEENTH AMEND. RIGHT TO A PUBLIC TRIAL(EXPLAINED IN GROUND ONE OF THIS WRIT) CONSTITUTES FUNDAMENTAL ERROR OF A RIGHT PERSONAL TO THE BE- NIFIT OF THE APPLICANT, REVIEWABLE ABSENT AN OBJECTION FROM

_DEFENSE COUNSEL."

All of the fact findings'and legal conclusions for_Ground #l, and #3. are incorporated into the findings of fact and con- clusions for this ground #4.

The Applicant contends in his Ground #4 that:

al The right to a public trial he was denied during voir di- re is a fundamental right;

b) The sixth.& fourteenth Amendment right to a public trial( unlike the publics lst Amend..right to be present) is a` right personal to the benifit of the accused:

c) And for those reasons combined with the fact that he did not waive that right(as explained in Ground #1) the error is reviewable regardless of the fact his trial attorney, entirely failed to object to the error at trial.

The writ of Habeas Corpus lies to correct "defects-or denials of fundamental constitutional rights." Ex parte Tovar, 901 _S.W. 2d 484, 485(Tex.Crim.App.l995). -

The Supreme Court holds that the right to a public trial is so essential to the integrity of the criminal justice pro- cess that it's violation falls into "a limited class of fun- damental constitutional errors that defy analysis by harm- less error standards." Neder v. United States, 527 U.S. l, 7 (l999)(internal quotations omitted).

The Texas Court of Criminal Appeals has also referred to the public-trial right as "fundamental? Clark v. State, 365 S.W. 3d 333, 340(Tex.Crim.App.2012)-

"Fundamental" is defined as -of, affectingl or serving as a base or foundation; essential;primary(the fundamental rules) ,etc.(Oxford Pocket American Dictionary of Current English)

"Beginning in the 16th Century, jurors were selected in pu- 1blic" Press-Enterprise Co. v. Superior Court, 446 U.S. 501 , 507 (1984). "Public jury selection...was the common pract- ice in America when the Constitution was adopted." Id. at 5081

p.17 of 42

\

THIS COURT CONCLUDES THAT THE RIGHT TO A PUBLIC TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDHENT IS A FUNDAIBNTAL RIGHT IN WHICH THE APPLICANT WAS DEPRIVED OF DURING THE VOIR DIRE PROCEEDING OF HIS TRIAL.

Findings and Conclusions Related to Ground #4(the sixth Amend- ment right to a public trial, made applicable to the state of Texas through the fourteenth Amendment of the U.S. Constitu- tion, is a right personal to the benifit of the accused).

This Court concludes that the LAW has long held that a public proceeding "is for the benifit of the accused; that the pub- lic may see he is fairly dealt with and not unjustly con- demned and that the presence of interested spectators may

keep his triers keenly alive to a sense of their responsibili- ty and to the importance of their functions...." In re Oliver/ 333 U.S. at 270 n.25(citations omitted)

"In addition to ensuring that the judge and prosecutor carry out their duties responsibly, a public trial encourages wit- nesses to come forward and discourages perjury." Waller, 467 U.S. at 46.

This Court concludes that the public trial right benifits the accused personally because it produces a more reliable result by discouraging perjury and engendering fairness.

This Court concludes that the accused-benifits personally from a public trial because it is "true as a general rule that ju- dges, lawyers, witnesses, and jurors will perform their re-y spective functions more responsibly in an open court than in secret\proceedings. A fair trial is the objective, and 'pub- 1ic trial' is an institutional safeguard for attaining it." Estes v. Texasi 381 U.S. 532, 588(1965)(Harlan, J., concurring

l(citation omitted).'

"Our cases have uniformly recognized the public trial guaran- tee.as one created for the benifit of the defendant." Ganett Co. v. DePasquale, 443 U.S. 386, 380(1979). f

This Court concludes that the public trial right benifits the accused personally under the sixth and fourteenth'Amendment because it "serves to guarantee the fairness of trials and to bring to bear the benificial effects of public scrutiny`up- on the administration of justice" Cox Broad.Corp. v. Cohn/ 420 U.S. 469, 492(1975). `

"the requirement of a public trial is for the benifit of the accused." Waller, 467 U.S. at 46(quotations omitted)_

p.18 of 42

§

8. This Court concludes that in 2010, the United Stateds Supreme Court, in Presley, 130 S.Ct. at 7250 reiterated again that " Our cases have uniformly recognized the public trial guarantee as one created for the benifit of the Defendant."(quoting gan- nett Co. v. DePasquale, 443 U.S. 368, 380(1979).

9. THIS COURT CONCLUDES THE SIXTH AND FOURTEENTH AMENDHENT RIGHT` TO "PUBLIC TRIAL" IS A RIGHT PERSONAL TC THE BENIFIT OF THE DEFENDANT, UNLIKE THE lst AMENDHENT RIGHT FOR THE PUBLIC.

lO. THIS COURT FURTHER CONCLUDES THAT SINCE THE RIGHT TO A PUBLIC TRIAL RAISED IN THIS WRIT WAS CREATED FOR THE BENIFIT OF THE APPLICANT, DESMOND LEDET, THEN ONLY THE APPLICANT HAD THE RI- GHT TO WAIVE IT, AND HE DID NOT WAIWE THAT RIGHT.

N. Findings and Conclusions Related to Ground #4(the reviewing Court can review this fundamental error of a Constitutional right created for the benifit of the Applicant that he never _waived even though his trial attorney failed to object to the error)

1. This Court recognizes the doctrine of fundamental error.

2. This Court concludes under the doctrine of fundamental error the Applicant can complain of the trial court's (l):filling the gallery with prospective jurors, (2) leaving no accommoda- tions in the public seating area for the public to be present, (3) resulting in his parent's having to wait in the hall the entire voir dire proceeding, (3) without ever,first of all, prior to doing so, (4) fullfilling it's mandatory obligation under PRESLEY & wALLER to perform the mandated wALtER"TEST, or (5) ever fulfilling it's obligation under PRESLEY-to take ev- ery measure to accommodate public attendance at criminal tri-

als. 3. "The traditional term in Texas' criminal law that corresponds toi"plain error" is "fundamental error". Jimenez v. State,

2000 Tex.WCrim. App. LEXIS 81, *lZ-lB(Tex.Crim.App. 2000).

4. This Court concludes the fundamental error(above), is struct- ural error affecting Applicant's substantial rights.

‘5. The Court of Criminal Appeals has made it clear that: "we are

authorized to take notice of fundamental errors affecting sub- stantial rights although they were not brought to the attent-

ion of the court." Blue,45 s.w. 3d ar 131.

6. This Court concludes "that the fundamental conception of a fair trial includes...the right to have the proceedings open to the public", and review of this fundamental error is just- ified., Estes, 381 U.S. at 560(Mr. Chief Justice Warren con-

f \

p.l9 of 42

curring).

O. Conclusions of Law and Recommendation Concerning Ground #4

1. This Court, after weighing the evidence from the Reporter's Record, the Application filed, the supporting documentation in the Application, etc.,as well as the forgoing factual and legal conclusions for this ground,as well as ground one and

three, etc. concludes by the preponderance of the evidence and the applicable law that:

a) The violation of Applicant's Sixth and Fourteenth Amend- ment right to a public trial as laid out in ground #l is fundamental error of Cohstitutional magnitude.

b) The Sixth and Fourteenth Amendment right to a public trial is, and has been repeatedly deemed to be,by theUnited Sta- te's Supreme Court,createdfor the benifit of the accused.

c) The Applicant never, personally waived that right, nor was he ever informed of that right by defense counsel,or the trial Court.(unopposed by defense counsel)or the Record)

d) While the right to a public trial is fundamental in and of itself, it is also above valuation.of“it“s'importance`to; the preservation of the fundamental right to a fair trial-

e) Absent an objection from defense counsel at trial, in this

particular case, review under the doctrine of fundamental error,is legally justified.

2. This Court recommends GRANTING the relief sought by the Ap- plicant, Desmond Ledet.

Signed on this the Day of 20

p.20 of 42

DEFENSE COUNSEL, CURTIS FORTINBERRY, WAS INEFFECTIVE

Findings and Conclusions Related to Ground #Z(Constitutionally deficient performance/Structural Error)

"APPLICANT SUFFERED A STRUCTURAL DEFECT DUE TO DEFENSE COUN- SEL'S DEFICIENT PERFORMANCE(NOT OBJECTING TO THE EXCLUSION OF MR. & MRS. LEDET FROM VOIR DIRE PROCEEDINGS WHICH VIOLA- TED THE PUBLIC TRIAL RIGHT GUARANTEED UNDER THE 6th & 14th Amend., U.S. COnSt.); ABSENT ERROR APPLICANT WOULD HAVE A- VAILED HIMSELF OF PUBLIC TRIAL RIGHT."

v On the first page of this ground #2, page 8 in the writ Appli-

cation, the Applicant specifically states£ "GROUND 1 IS INCOR- PORATED INTO THIS GROUND."

Ground #1 is:

"APPLICANT WAS DENIED, WITHOUT INTENTIONAL RELINQUISHMENT OR ABANDONEMENT, NOR KNOWLEDGE OF, OF HIS RIGHT TO A PUBLIC TRI- AL, AND TO DUE PROCESS, AS GUARANTEED HIM BY THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STKTES CONSTITUTION(DURING THE ENTIRE VOIR DIRE PROCEEDING). \

This Court concludes that the Applicant is alleging that his defense attorney is ineffective for not objecting to the un- constitutional violation of his right to a public trial that he raised in Ground #1, that resulted in his parent's being excluded from the voir dire proceedings, which defense counsel also did not object to. `

ln the writ Application pages(p.8-9) for Ground #2 the Appli- cant specifically alleges his_defense attorney, Curtis Fort- inberry was ineffective because:

/

a) "Defense counsel, Curtis Fortinberry, did not object to the exclusion of the Applicant‘s parents from the voir di- re proceedings." (Appli. at p.8)

b) "Defense counsel was aware of the closure before voir dire began yet:

1) made no objections" (Appli. at p.9)

2) did not inform the Applicant or his parents of the pub- lic trial right" (Appli. at p.9)

3) did not request the Court to fulfill it's duty to per- form the 'WALLER' Test" (Appli. at p.9)

4) did not object to closure without justification through

p.21 Of 42

5.

a finding of the Court of some overriding interest likely to be prejudiced by allowing Mr. & Mrs. Ledet inside of the proceedings." (Appli. at p.9)

5) Made no attempts to secure a public voir dire at all." ( Appli. at p.9) ~

In all the Applicant has alleged defense counsel is ineffect-- ive in relation to this ground for 6(six) seperate, yet mutual connected reasons.

The Applicant also contends that in regards to the prejudice prong of "Strickland" the error is structural and he is enti- tled to a limited prejudice inquiry_ (pages 19, 27-28 of the Memorandum-of law attached to the writ Application).

In support of his assertion that the law holds he is;entitled to a limited prejudice inquiry the Applicant relies heavily on Johnson v. State, 169 S.W. 3d 223, 231(Tex.Crim.App.2005)(cita- tions omitted)(explaining the limited prejudice inquiry for in- effective assistance/structural error claims); And Owens v. U“S., 483 F@3d 48, 64(lst. Cir. 2007)(an ineffective assist- ance case based on an attorney's failure to object to the de- privation of the right to a public trial),

To successfully assert that trial counsel's failure to object amounted to ineffective assistance of counsel, the Applicant must state the nature of the objection or objections that de- fense counsel failed to make, and he must show that the trial judge would have committed error in overruling such an object- ion. Ex parte Martinez, 330 S.W. 3d 891, 901(Tex.Crim.App. 2011). ~

The Applicant has stated what objections should have been ma- de:

a) In the heading of Ground #2 he stated that his defense at- torney did not object to the exclusion of his parent's , who represented the public, from voir dire, and that the eXClUSiOn:"VIOLATED THE PUBLIC TRIAL RIGHT UNDER THE.€th & 14th Amend., U.S. Const. "

b) On page 26 of the Memorandum of law attached to the writ b Application the Applicant stated for this Ground: "Failing to object to the deprivation of the safeguard of the 6th & 14th Amend. public trial right was deficient performance."

c) On page 26 of the Memorandum the Applicant also argued: " Curtis Fortinberry should have objected under the Sixth and Fourteenth Amend. U.S. Constitution rightvto a public tri- al- He also could have cited Waller,supra or Presley,su-

p.22 of 42

pra in his objection. He should have objected to the Wal- ler Test Requirements not being met. He could have object- ed that those same requirements were reiterated in Presley l and not being met.“

d) On page 27 of the Memorandum of Law attached to the writ Ap- plication the Applicant argued that: "defense counsel had ample time to object to the closure before the trial began..

2. As shown above in section (P)(4)(a) & (b) the Applicant cited in the Application pages for this ground(p.8-9) the same or similar objections counsel should have made that he argued in the Memorandum.

THIS COURT'S CONCLUSIONS ARE NOT~BASED IN THE DISTORTING EFFECTS OF HINDSIGHT REGARDING DEFENSE COUNSEL'S PERFORMANCE

R. All of the findings of fact and conclusions of law for Grou= nds #l, #3, & #4 previously proposed are incorporated into- this Ground #2 alleging defense counsel was ineffective for

h not objecting to the violation of Applicant's right to a pu_ blic trial under the 6th & 14th Amendment,and Presley and Waller. 7

S. The Applicant, Desmond Ledet, was represented by the.honora- ble Curtis L. Fortinberry.

l. The honorable Curtis L. Fortinberry filed an Affidavit in response to a Court order that he do so addressing these Grounds.--His Affidavit was filed with the Clerk on Nov. 20th,'2014.

24 Attorney Fortinberry*s Affidavit, has supplied this Court with his personal subjective reasoning from his personal perspective at the time of trial in relation to this Grou~ nd.

3. Attorney Fortinberry also V©luntarily addressed Applicant- 's Ground's #l, #3/ & #4 in his Affidavit, further supply- ing this Court with his personal subjective reasoning ; from his personal perspective at the time of trial in re- lation to those grounds.

4. This Court concludes that because Attorney Fortinberry has provided evidence of his personal subjective reasoning,being based on his personal perspective at the time the Applicant alleges he should have objected to the violation of the public trial right/ then this Court's factual and legal conclusions regarding the reasonableness of his decision not to object are

"p.23 of 42v

not at all grounded in any second guessing with the distorted benifit of hindsight. Strickland v. Washington, 466 U.S. 668 , 689-90(1984).

----- y ~----------------------~----THE PREJUDICE PRONG

T.

The Sixth Amendment guarantees the right to effective assist- ance of counsel in criminal prosecutions. Yarborough v Gentry/ 540 U.Ss 1,5(2003)(per curium).

This Court recognizes that most ineffective assistance claims are analyzed under the well known "Two~Prong Test" of Strickland/ 466 U.S. at 687, 691-92.

Because this Court is bound by law to follow the precedent of the Texas Court of Criminal Appeals, and the United State's Supreme Court, this Court concludes that it must analyze this particular ineffective assistance of counsel ground under the "Strickland" framework, yet, ‘excepted from the straightfor- ward application of Strickland's requirements.

Under the usual "Strickland Two- Prong Test", in order for an Applicant to obtain reversal of his conviction and a new trie al, the_Applicant would have to show:(l) That his lawyers pp performance was deficient, and:(2) aside from his lawyer's deficient performance there is a reasonable probability that the trials outcome would have been different. Id.

In Johnson v. State, 169 S.W. 3d 223, 2301Tex.Crim.App.2005) the Texas Court of Criminal Appeals held that "Besides the complete denial of counsel/ there are only two situations ex- cepted from the straightforward application of Strickland's requirements to defense misconduct: (l) a conflict of inter- est and:(2) deficient performance regarding a right the vio- lation of,which would constitute a structural defect."

"To avoid the requirements of Strickland, the defendant's com-` plaint must reveal error attributable to the court, and not simply defense counsel-" Id. at 233

This Court concludes that because the trial court failed at it's duty to perform the "Waller Test”i and failed to full- fill it's obligation under Presley to take every reasonable measure to accommodate public attendance at criminal trials, that this particular ineffective assistance of counsel ground is a complaint that reveals "error attributable to the trial court and not simply to defense counsel." Johnson, 169 S.W. 223, 230.; Presley, 130 S.Ct. at 7257 Lilly, 365 S.W. 3d at 331; Steadman, 360 S.W. 3d at 5054"Presley also puts the onus squarely on the trial judge”).

p.24 of 42

7.

9.

\»

In Steadman the Court oprrimin l Appeals emphasized: "the burden of considering reasonable alternatives to closure rest squarely upon the trial court itself...and there is no burden on the defendant to proffer alternatives" Id. at 505.

The Court of Criminal Appeals, in Johnson, laid out clearly the proper analysis for this particular ineffective assistance' of counsel claim in regards to harm.

The Court said: x

"The appropriate standard of harm or prejudice depends

iupon the answers to two questions: First, is the de- privation of a defendant's right-..,caused by defense counsel, an error that is properly attributable to the trial court? Second, is the deprivation of a defendant's right..-the kind of violation that is properly-character-u ized as a 'structural' defect?...If the answer to both is lyes'(attributable to the trial court and a structural defect) then the deprivation is constitutional error of 'the 'structural' variety and no analysis of harm or pre~ judice is conducted.V

Johnson, 169 S.W. 3d at 228.

This Court concludes that under the above said "Johnson" ana- lysis for ineffective assistance of counsel claims for struc- tural error/attributable to-the trial court and not just sim- ply defense counsel, the Applicant has realisticaly andnunr deniably established that his Ground #2 is that type of a¥ claim.

This Court further concludes, that no analysis of harm or prejudice needs to be conducted.

This Court concludes that under the above said Johnson analy- sisl the Applicant, Deslond¢Ledet, has satisfied the second prong of Strickland.

To obtain habeas corpus relief the Applicant needs only to Satisfy the deficient performance prong of Strickland.

THE DEFICIENT PERFORHANCE PRONG

Under the performance prong, there is a presumption that Coun- sel's strategy and tactics fall "within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 1609. '

This Court concludes that based upon defense counsel's own ad- mission, his failure to object was not a strategy or tactic.

p.25 of 42

3. Based upon Attorney Fortinberry's own admission in his Affida-

4.

vit_, his failure to bbject to the violation of Applicant's 'public trial right, and the exclusion of his parent's during voir dire, was based on inattention and neglect, amongst other reasonskthat justify a conclusion from this Court that his performance was deficient.(COPY OF AFFIDAVIT IS ATTACHED).

Attorney Fortinberry reveals in his Affidavit response to Ap- plicant's Ground #l that he did in fact go out into the hall _ and speak with Applicant's parents prior to the start of voir. dire,(AFTER-THAT HE ASSERTS THAT HE BECAHE TOO 'BUSY")

The Applicant and his parent's(who presented Affidavit's) ver~ sion of what Attorney Fortinberry's conversation with them en- tailed out in the hall before voir dire began,conflicts slir ghtly,with Attorney Fortinberry's version of what he said to them out in the hall before voir dire began.

a) Based upon the Affidavits submitted by both of the Appli- cant's parent's(labeled Exhibit A & B in the Memorandum!s Appendix) Attorney Fortinberry came out in the hall to: (ll speak with them prior to voir dire early in the morn- ing on the first day of trial; and (2) to get free world clothes from them for their son, the Applicant,to wear on- ce he entered the courtroom so that he would not be dres- sed in prison garb; and (3) to inform them that there would be no where for them to sit in the courtrooms pub- lic seating area because the trial court was bringing in a large panel-of prospective jurors who would take up all of the seats leaving no accommodations for them in the gallery; and (4) that the trial court would not allow any public in until voir dire was over due to space concerns; and (5) after voir dire was over Attorney Fortinberry came back out in the hall, informed them of a recess and told them what time to report back to be allowed in to witness the guilt innocence phase.

b) In contrast, Attorney Fortinberry swears under Oath:,tl); that he told Applicant's parent's that he did not know "where they "wouldisit during voir dire."(Affidavit responr se to Ground #l); and (2) "I never said they were not al- lowed in the courtroom"; and (3) "I was busy getting ready for jury selection so I did not see to it they had accom- modations in the courtroom during voir dire."

6. While the two versions slightly differ, both versions esta¢.

blish for this Court enough facts for this Court to conclude:’

a) Prior to the outset of voir dire Applicant's parents were present and ready to enter trial.

b) Before voir dire began, Attorney Fortinberry came out in the hall and spoke with them about the fact that there was going to be a seating problem for them during voir dire.

p.26 of 42

.7.

c) By attorney Fortinberry's own admission,he, having know- 4 ledge before hand, after speaking with Applicant's par~ ents,chose not to object even before voir dire began, and instead chose to,in his own words,become: "busy getting ready for jury selection so I did not see to it they had accommodations in the courtroom during voir dire."

d) Attorney Fortinberry did not consider securing his own client“s right to a public trial under the sixth and four- teenth Amendment of the United States Constitution to be of significant importance in comparison to whatever else he may have been doing, which he does not say, that sup- posedly kept him to busy to object-towthe violation of the public trial right,

e) Since he was too busy to see to it they had accommoda- y tions then, even though the trial court as seen in the re- cord failed to perform Waller Test, etc., his failure to object could not have possibly been based on any reasoned well planned or thought out trial strategy.

f) Since he was too busy to be concerned with making`surethe public trial right was `secured, instead of violatedl his failure to object was the product of inattention and ne- glect- - !

;A decision cannot be fairly characterized as "strategic" un-

less it is a conscious choice between two legitimate and ra-

tional alternatives. lt must be born of deliberation and not

happenstance, inattention, or neglect. Wiggins v. Smith, 539 U-s. 510, 526(2003).

This Court further concludes that once voir dire actually be- gan:

a) Defense counsel was aware, based upon his own admission that: "...the courtroom was full” with potential jurors and the Applicant's parents were still out in the hall. (His Affidavit response to Ground #l§ _

b) And "the gallery was full” leaving no accommodations for the public, while having knowledge that Applicant's par- ents who he had earlier spoken with in the hall, were still in the hall as;a result of the unconstitutional si- tuation.(His Affidavit response to Ground #2).

C) Defense counsel, based upon his own admission, was aware that the trial judge had filled up the courtroom, leaving no accommodations for the_public without first of all per- forming the Supreme Court mandated ’Waller Te§t' (His Af- fidavit response to Ground #3)..Att0rney Fortinberry spe¥ cifically stated: "I can not speak for the trial judge as to why hé`did not perform a 'sua sponte' 'Waller Test'"Id.

p.27 Of 42

This Court further concludes that once voir dire began Attor- ney Fortinberry could not have been ”busy” preparing for voir dire anymore,yet based upon neglect and not strategy, he still

\failed to object to the apparent deprivation of Applicant's

U.

1.

right to a public trial during voir dire.

This Court concludes that defense counsel's failure to ob- ject was based on inattention and neglect, and this Court ~ owes no "deference to counsel's judgementsf(Strickland, 466 U.S. at 689)f in this matter, they were not/based on:strategy.

This Court concludes that since Attorney Fortinberry's fail'-l 'ure to object was not based on any strategy by his own admis- sion, the presumption that counsel's strategy and tactics fa- ll "within the wide range of reasonable professional assist- ance" is perfectlynrebutted by the preponderance of the evi- dence to the contrary. (Strickland, 466 U.S. at 689).

Because defense counsel's failure to object was based on in- attention and neglect this Cpurt concludes that considering the totality of the circumstances, the decision not to ob- ject fell beneath an objective standard of reasonabdeness. (§trickland, 466 U.S. at 687-88).

------------- FURTHER EVIDENCE OF DEFICIENT PERFORMANCE

Both the performance Component and the prejudice prong of Strickland are mixed questions of law and fact. Id. at 698.

Based on the following this Court concludes that Attorney Fortinberry's performance was deficient as a matter of law in regards to Ground #2:

"The right to the effective assistance of counsel is recog- nized not for it's own sake, but because of the effect ithas` on the ability of the accused to receive a fair trial" United States v. Cronic, 466 U.S. 648, 658(1984).

Strickland established that r"Most important, in adjudicat- ing a claim of actual ineffectiveness of counsel...the ulti- mate focus of inquiry must be on the fundamental fairness of. the proceeding whose result is being challengedf"ld'at 696.

The United States Supreme Court has repeatedly emphasized that the right to a public trial ensures fairness, discour- agespmmjury etc. See these findings p.l4-l5, & 18-19.

Recently the Texas Court of Criminal Appeals handed down it'- s opinion in Cameron v. State¢ again emphasizing the cri- tical relationship between the fairness of a trial and the might to a public trial. 2014 Tex. Crim.App. LEXIS 1536, *13. (handed down October 8, 2014). `

,p.28 of 42

6.

In Cameron *13 the CCA(quoting Waller, 467 U.S.., at 46, & Press-Enterprise, 464 U.S. at 5105stated: "The requirements of

a public trial is for the benifit of the accused:" (emphasis

added)` "that the public may see he is fairly dealt with and not unjustly condemned...a public trial encourages witnesses to come forward and discourages perjury...Openness thus enhan- ces bbth the basic fairness of the criminal trial and the ap- pearance of fairness.” _______________

The Supreme Court has repeatedly emphasized that; "it is v through counsel that the accused secures his other rights." Kimmelman v. Morrison! 477 U.S. 365, 377(1986)(citingiMain v.

Moulten, 474 U.S. 444, 446(1940); Chronic, 466 U.S. at 653 )

"An accused is entitled to be assisted by an attorney, wheth~ er retained or appointedy who plays the role necessary to en- sure that the trial is fair." Strickland, 466 U.S. at 685

Based on the foregoing law this Court concludes that the Ap- plicant's lawyer was deficient and the Applicant had consti- tutionally ineffective assistance of counsel. His lawyer was not effective at securing his right to a public trial. En turn

7his lawyer failed to secure his right to;a fair trial by not se-

securing the public trial right,or at least attempting to do so. Had an objection to the closure been overruled by the trial court, it would have constituted reversible error. The Applicant pointed this Court to sufficient State and Federal precedent in his Memorandum of law attached to his writ Ap- plication to establish by the preponderance of the evidence that had Attorney Fortinberry lodged a proper objection, the trial court would have committed reversible errork§)overruling that objection. (Memorandum of Law at p.20-23,& 26-27).

------------- LACK oF KNowLEDGE oF~ApPLIcABLE tAw

Although this Court,concludes that the above legal and factu- ual'findings and conclusions are sufficient to establish that

fdefense counsel was ineffective in this.matter,this Court

further concludes that Attorney Fortinberry's Affidavit re- veals that his failure to object,.was) inter alia; based on a lack of knowledge of the applicable law. ,This Court has al- ready concluded that the failure to object was not tactical.

"A criminal defense attorney must have a firm command of the ...governing law before the lawyer can render reasonably ef- fective assistance." Ex parte Welborn, 785 S.W. 2d 391, 393 (Tex.Crim.App.l990).

"Ignorance of well-defined general laws, statutes , f.»

and legal propositions is not excusable and such ignorance may lead to a finding of constitutionally deficient assistan- ce of counsel, but the specific legal proposition must be well considered and clearly defined." Ex parte Chandler, 182

p.29 of 42

l9

S.W, 3d 350, 358(Tex¢Crim.App.2005).

"Counsel's performance will be measured against the state of the law in effect during the time of the trial..? Id. at 359

Based on the following this Court concludes that at the time defense counsel failed to object to the violation of Appli- cant's public trials-the unconstitutional exclusion of his parents from voir dire proceedings-the law was well settled that the 6th & 14th Amendment right to a public trial ex- tends to jury voir dire and that closure during that stage must meet the standards provided in WALLER.:

lt was on the morning of June 22l 2010 when defense counsell Curtis Fortinberry, failed to object to thevviolation of the Applicant's right to a public trial during voir dire.

A little over 5 months earlier,on Jan 19, 2010, the United States Supreme Court held in a per curium opinion, that the law was already well settled that the Sixth Amendment right to a public trial extends to jury voir dire and that closure during that very critical stage must meet the standards pro- vided in Waller. Presley v. Georgia, 131 S-Ct. 721(2010).

The Supreme Court granted Certiorari in Presley in regards

to the question of "whether it is so well settled that a de- fendant's Sixth Amendment right" to a public trial "extends

to voir dire that this Court may proceed by summary disposi- tion." The Court affirmed that Waller and Press-Enterprise I' "settle the point”. Presley[ 130 S.Ct. at 723-24.

Applicant relied heavily on Owens.supra (Attorney failed to

object to violation of public trial during voir dire(2007 o- pinion». On remand,granting Owens a new trial, the Court held "h..failure to object was not tactical, but based ona lack of knowledgeof the applicable law...counsel should have knoe:

`wn the applicable law, and should have objected." Owens v.U-A

nited States(Owens IV), 517 F. Supp. 2d 570, 574-77(2007).

This Court concludes that because the Supreme Court held in Presley that the above said question was well settled by Wal- ler and Press- Enterprise I, S Ct opinions well known since " 1984, then at the time of Applicant's trial, based upon Su- preme Court precedent, the fact that the public trial right extends to voir dire had been r'wel]'_..s'>ettled" for over 25 years¢

In 2007, several years before Applicant' s triall in Owens IV, the court speaking of Owens trial in 1997/ citing Waller and

Press- -Enterprise I, stated: :"Reasonable counsel with requi~

site knowledge of the law would have objected]..the important Supreme Court precedents had existed for more than a dedade." :Owens IV, 517 F. Supp. at 576.

P.30 of 42

z

21. This Court concludes that Applicant's defense attorney, Curt- is Fortinberry also should have been aware of the applicable law 13 years after Owens trial, over 25 years after the Su- preme Court decided Waller and Press-Enterprise I/ and over 5 months after the Supreme Court reiterated that the applicable law was already very well established in Presley .

22. "access to counsels skill and knowledge is necessary to ac- cord“defendant's the ample opportunity.to meet the case of the prosecution' to which they are entitled." Strickland, 466

U.S. at 685 .

23. "Counsel;..has a duty to bring to bear.such skill and knowle- dge as will render the trial a reliable adversarial testing process," Id. at 688 »

A COPY OF ATTORNEY FORTINBERRY' S AFFIDAVIT IS ATTACHED TO THESE PROPOSED FINDINGS AND CONCLUSIONS.

___________-________________________________-_____________________\_ ______

24. Attorney Fortinberry stated in his Affidavit that: "Because the gallery was full, Petitioner's parents assumed they were not allowed in." (His Affidavit response to Ground #2). And . "I do not believe that his parents not being in the court- room during voir dire constitutes a violation of his sixth and fourteenth amendment rights to a public trial." (His Af- fidavit response to Ground #4).

25. In his Affidavit he also stated: ”I cannot speak for the tri- al judge as to why he did not perform a 'sua sponte 'Waller' test, NOR DID IVSEE THE NEED FOR ONE.” HiS Affidavit respOn-

se to Ground #3)

26. Based upon Attorney Fortinberry's own perspective reasoning at the time he failed to object this Court concludes that:

a) Attorney Fortinberry believed that the trial court's pub- lic trial right offending action of: (l) filling the en- tire gallery(public seating area) with prospective jurorsf (2)_resulting in no accommodations being left inthecourt- room to accommodate the public, or Applicant's parents who he(defense counsel) had already spoken with out in the ha- ll, that he,had personally informed that they would have a problem being seated once voir dire began(based upon eith- er his version-or Applicant' s parent' s version, of what he said to them out in thelhall) (3) before and without ever performing the Supreme Court mandated ”Waller Test'( considering reasonable alternatives to closure, etc.), and (4) without ever even attempting to fulfill the court's obligation to ”take every reasonable measure to accommoda- te public~attendance at criminal trials”, did not, as he put it, :. constitute "a violation of" Applicant's "sixth and fourteenth amendment rights to a public trial."(His Af-

.....

p.31 of 42

fidavit response to Grounds 41-#4).

b) Attorney Fortinberry was unable to recognize the fact that he was a personal witness to all of the required ele+ ments that constitute an actual violation of the sixth and fourteenth amendment right to a public trial during 'voir dire. ~

c) Attorney Fortinberry's inability, inferred from his own words in the Affidavit, to recognize that his clients ri- ght to a public trial was being violated before his very own eyes, indicates that he too had a lack of understand- `ing of the well settled applicable law.

d) Attorney Fortinberry was deficient for being ignorant of the applicable law in affect at the time of trial.

e) Considering the totality of the circumstances, Attorney Fortinberry's Affidavit statement that he did not see a need for the trial Court to perform the Waller test("he did not perform a‘sua sponte 'Waller' test, NOR DID I SEE THE NEED FOR ONE") further indicates that he did not un- derstand the applicable law- This Court concludes his failure to object was unreasonable in light of the facts.

1) besides contending that Attorney Fortinberry "should have objected under the Sixth and Fourteenth Amend.... right to a public trial[ the Applicant also contended "He should have objected to the Waller Test Require-~ ments not being met.” See these findings p.21-23.

27. Finally, after having all the facts before him(Attorney»For-

28.

tinberry) that constitute closure(knowledge that Applicant's parents were in the hall and had come to see the.trial) and (2) personal visual first hand knowledge that the trial court brought in a large panel of jurors who took up all of the a- vailable seats in the gallery(public seating area), (3) lea- ving no accommodations for the public(Applicant's parents/ etc.,), Attorney Fortinberry still said in his Affidavit: I was never asked to see if there was somewhere else they _ could sit during voir dire." (His Affidavit response to Grour nd #2)__and "to my knowledge the courtroom was not closed to the public."(His Affidavit response to Ground #4).

This Court concludes that the above responses further indica- te that defense counsel erroneously believed, contrary to the applicable law, that Applicant's parents, or the Applicant( neither of which he had ever informed of the public trial ri- ght), had a responsibility to request of him that he find them(Applicant's parents)somewhere else to sit in the court- room since the public seating area was full with prospective jurors; in order to alert him that Applicant's public trial right was being violated so he could secure it-

p.32 of 42

(a) Attorney Fortinberry has failed to point this Court to any case law or provision in the United States Constitu-l tion that holds that before he renders reasonably effect- ive counsel, by securing, or atleast attempting to secu- re, Applicant's fundamental right to a public trial, a right for Applicant's own benifit'and a safeguard for a fair trial, that the Applicant, or a member of the public was required to request him(Attorney; Fortinberry) to do so.( See Kimmelman, 477 U.S. at 377("it is through coune sel that the accused secures his other rights.")

(b) This Court concludes that "Where the assistance of coun- ~sel is a constitutional requisite, the-right to be furni- shed counsel does not depend upon a request."(Carnley v. Cochran, 369 U.S. 506l 513(1962). And likewise once the Sixth Amendment right to counsel has attached,and during a critical stage of trial such as voir dire, the right to the effective assistance of counsel, including coun- 'sel$s duty to secure the accused ”other rights” does not "depend upon a request.“

;§ (c) "The initiation of judicial criminal proceedings...marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Kirby v. Ill., 406 U.S. 682, 689-90(1962). The commencement of the criminal prosecution alone a- gainst the Applicant marked the point at which time the.u. guarantee of the effective assistance of counsel became applicable to the Applicant, McMann v. Richardsonv 397 y U.S. 759, 771 n.14(1970). That guarantee entails defense counsel playing "the role necessary to ensure that the trial is fair." Strickland, 466 U.S. at 685. In order to play that role it was necessary that Attorney Fortinberry secured, or atleast attempted to secure, Applicant's "o- ther rights” that are safeguards to the fundamental right to a fair trial..Kimmelman, 477 U.S. atq377§“The right-to public`trial is that type of "other'r-ight"v Cameron v. state, 2014 Tex.crim.App. LEXIS 1536, *14-*15.

@d) Again, based upon Attorney Fortinberry's admitted sub~ jective reasoning from his personal perspective at the time of trial, his performance was deficient and based on a¢multidimensional misunderstanding or lack of knowledge of the applicable law. and inattention and neglect.

29. This Court further concludes that Attorney Fortinberry's sta- tement "to my knowledge the courtroom was not closed to the4 the public."(His Affidavit response to Ground-#4) indicates that his knowledge of the applicable law was so deficient that he was entirely unable to recognize that a closure had taken place before his very eyes in the samef or a similar ‘way,the trial judge in Cameron v. State, Id. thought that he; had not closed the voir proceedingsieven though he had.

p.33 of 42

3©.

31.

32.

This Court has already concluded that the voir dire proceed~ ing was closed. See these findings p.6-10.

In Cameron, 2014 Tex.Crim.App. LEXIS 1536, *3-*8, the Court of Criminal Appeals noted that a trial judge who filled up the entire gallery with prospective jurors(as in Applicant's trial) did not believe that he had actually closed the voir dire proceeding to the public. That judge even said repeat-1 edly,after Cameron's attorney objected under the 6th Amend.- right to a public trial,to her familly and friends being put in the hall,so he could use the entire gallery to seat pro- pective jurors:

"We recognize the right to be present during voir dire...

I don't seeany room where anybody else would be able to sit and observe...There is no way this courtroom can acco- mmodate them...It's an open trial. Certainly people have the opportunity to observe. We just`don't know WEERE to put themr...l'm not ruling. I'm just telling you,WHERE

can we put them?...l'm not over ruling you. WHERE are we going to put them?. .I've never ruled,that the public has been excluded. All I'm saying is WHERE do you suggest we put them?...You want to open up those doors and have them all stand in that little hallway there so they can observe the whole thing? Maybe we could do that. Would that satis% fy you?...l'm giving you alternatives...lf you want to o- pen those doors and put chairs and have people--have the public sit there, that's fine with me...The courtroom's _going to be absolutely stuffed with venire panel members. ...I am telling you that you can have people in this court- room...I just don't know WHERE to put them. So I'm not .ruling that anybody's excluded...I haven't told you that you cannot have people in the courtroom. Tell me WHERE to put them and we'll put members of her familly...The Court did not close the proceeding by any means..."

Attorney Fortinberry's Affidavit echoes the same subjective

'reasoning,-or similar reasoning, relied on#by:the trial judge

in Cameron for erroneously believing that the closed voir di- re proceeding, was not a closed voir dire proceeding.

a) Specifically Attorney Fortinberry alleges in his Affida-i vit that in the hallway: "I did tell them I did not know WHERE" Applicant's parents "would sit during voir dire." (His Affidavit response for Ground #1).

After that, similar to the trial judge in'Cameron, he`r'~'l then states: "..-the gallery was full.;.Petitioner's par- ents were present for his trial and were not excluded...

I do not believe that his parents not being in the court-_ room during voir dire constitutes a violation of his sixth and fourteenth amendment rights to a public trial...to my knowledge the courtroom was not closed to the public."

p.34 of 42

e)

(His Affidavit response for Grounds #l~#4)

In both cases,both Cameron's judge and Attorney Fortinber- ry(Applicant's trial lawyer),acknowledge that: (1) the gallery is full or about to be full with prospective jur- rors, (2) while having knowledge of the presence of fam- illy members,who represent the public,being present,yet '… having no seats available for them in the gallery. And (3) based on~Attorney Fortinberry's version offwhat he said to Applicant's parents in the hall(regardless of the fact it conflicts slightly with what Applicant's parents contend he said), he too, claims that just like Cameron's judge, that he made it known that he did not know WHERE the re- presentitives of the public would sit during voir dire. Cameron's judge communicated that: "I just don't know WHEF

~RE to put them" to Cameron's defense attorney who was ob- 'jecting to closure. Attorney Fortinberry alleges that he

personally communicated to Applicant's parents that he did not know WHERE they would sit during voir dire.

In both cases, neither(Attorney Fortinberry or Cameron's judge) was able to recognize that the existence of circum- stances that led each of them to conclude that they did

`not know WHERE the public would sit,indicated that an in-

fringement on the Sixth Amendment right to a public trial had occurred, or was about to occur.

Neither of them acknowledged:that before such an infringe~` ment on the right to a public trial‘could be constitution- ally justified, that the trial court was obligated to: "take every reasonable measure to accommodate public at- tendance at criminal trials.“ Lilly, 365 S.W. 3d at 331( quoting Presley, 130 S.Ct. at 725).(& PerfornlWaller Test)

Attorney Fortinberry's Affidavit alleges that after he ma- de Applicant's parents aware that he did not know WHERE that they would sit during voir dire, that instead of ob- jecting based on Applicant's right to a public trial, as he put it in his own words, he became: "busy getting ready vfor jury selection so I did not make an attempt to see to it they(Applicant's parents)had accommodations in the »courtroom during voir'dire."(His Affidavit Ground #l).

Attorney Fortinberry,-failed to object to closure, based on inattention, neglect, and a lack of knowledge of the applicable law,that disabled his ability, just like Camer- on's trial judge, to know when,based on the totality of the circumstances,the voir dire was closed to the public.

\Even after voir dire began, and there was no room in the

gallery for the public, Attorney Fortinberry did notunder- stand that a closure had taken place, based on his own words.("to my knowledge the courtroom was not closed").

p.35 of 42

'This Court recognizes that the Applicant has made several ob-

jections to Attorney Fortinberry' s Affidavit regarding his response to Grounds #1- #4. .

There exist different versions between Fortinberry and the Ap- plicant and his parent's version/of what Fortinberry said to each of them,verbally at the time he failed to object to clo-, sure. ' '

Nevertheless what is desirable for this Court,i in order to ma- ke a decision judging whether or not Fortinberry was deficie- nt for not objecting to the unconstitutional closure,is evi- dence based upon his subjective reasoning at the time,and

`whether or not his failure to object was based on strategy, or

lack of knowledge of the applicable law, and inattention and neglect.

Fortinberry has provided enough of the desired evidence need- ed to conclude that his performance was deficient, and his failure to object to closure,both before and after voir dire began,was in fact,based upon inattention and neglect, as well as a lack of understanding of the Applicable law.

This Court concludes that, as to counsel's performance, "the Federal Constitution imposes one general requirement: that counsel make objectively reasonably choices” Bobby v. Hook, 130 S.Ct. 13, 17(2009), that being the law, based upon the record facts, and counsel's own Affidavit, failure to objectl

~underthe circumstances of this case,was and is objectively

unreasonable.

This Court has judged "the reasonableness of counsel' s con- duct on the facts of the particular case, viewed as of the time of counsel' s conduct." Roe v_ Flores- Ortega, 528 U. S. 470 , 477(2000).

This Court concludes that the Applicant had Constitutionally ineffective assistance of counsel.

Both prongs of Strickland are satisfied»

"From the very beginning, our state and national constitu- tions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials..." Gideon v. Wainwright, 372 U.S. 335, 344(1963). That great - emphasis includes both the right to a public trial and the right to the effective assistance of counsel‘

The combined violations of the right to a public trial and

»the effective assistance of counsel, in this particular case,

amount to structural error: a Fdefect affecting the frame~ work within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante/

p.36 of 42

F499 U.S. 2791 310(1991)

U. Conclusions of Law and Recommendation Concerning Ground #2:

1. This Court, after weighing the evidence of Attorney Fortinber- 4ry‘s own subjective reasoning at the time of trial presented in his own words in his Affidavit, the evidence in the Repor- ter's Record, the Application filed, the supporting documenta- in the Application, etc., as well as the foregoing factual and legal conclusions for this ground, as well as ground one, three, and four} etc. concludes by the preponderance of the evidence and the Applicable law that:

a) Attorney Fortinberry was Constitutionally ineffective in regards to Applicant's Ground #2.

b) Applicant has satisfied the prejudice prong of Strickland under structural error/attributable to the trial court,> and not simply defense counsel,explained by the Texas Cou- rt of Criminal Appeals in Johnson v. State, 169 S.W. 3d 223, 228-30(Tex.Crim.App.ZOOS). '

b) The only remedy is to vacate Applicant's conviction and GRANT HIM A NEW TRIAL.

2. This Court recommends GRANTING the relief sought by the Ap- plicant, Desmond Ledet.

bd (D

Signed on this the Day of

The Honorable Judge Presiding

p.37 of 42 1 “

Respectf uly;gybmitted, CIjM lb?{%£

DESMOND LEDET #016\1095 3899 State Hwy 98 New Boston, TX. 75570

CERTIFICATE OF SERVICE

I, Desmond Ledet, certify that the original and two copies of these proposed findings of fact and conclusions of law have been hand delivered to the Tarrant County, TX. Criminal District Clerks: Office with instructions for the Clerk to file the ori- ginalf`with the 396th Judicial District Court of Tarrant County, TX; and to file one copy with the appellate section of the

District Attorney's Office in Tarrant County, TX.

umwle

ATTORNEY FORTINBERRY'S AFFIDAVIT

The following four pages attached to these conclusion after this page is a true copy of Attorney Curtis L. Fortinberry's Affida-

vit filed in response to Applicant's Grounds.

p.38 or 42

l u~ N€)V 2 0 2014 _ ` - No. c'-396-1152016-A BT;ME\\ sTATE oF TExAs § m THE DlsTRlcT coul;T""""’" vs. ‘ ’ § 396TH Juch_lAL DlsTRlcT DEslvloND LEDET § TARRANT couNTY, TExAs

AFF|DAV|T OF ATTORNEY CURT|S L. FORT|NBERRY

BEFORE l\/|E, then undersigned au-thorlty, personally appeared Curtis L.

Fortinberry, who being duly sworn, deposes as follows:

“l\/|y name is Curtis L. Fortinberry. | am at least 18`years of age and of sound

. mind. The facts stated in this affidavit are within my personal knowledge and are true

and correct."

“l was appointed this case on September 14, 2009 and will address all 34 of Petitioner’s polnts. ‘

Ground 1:

Although the courtroom was full, there was space for Petitionerfs parents y Petitioner's claims that l refused to allow his parents in are false. l did tell them l did not know where the would sit during voir dire. l never said they were not allowed in the courtroom. | was busy getting ready forjury selection so | did not make an attempt to see to lt that they had accommodations in the courtroom during voir dire. Ground 2:

` l fall tc- see how Petitioner “suffered a sf;gctural defect” due to defense counsel not objecting to Petitioner’s parents not"pelng in the courtroom during voir dire. Because the gallery was full, Petitioner's parents assumed they were not allowed in. l was never asked to see if there was somewhere else they could sit during voir dire.

Ground 3: l cannot speak for the trial judge as to why he did not perform a “sua sponte

“VVa||er” test, nor did l see the need for one. Petitioners parents were present for his trial and were not excluded from the voir dire portion.

p.39 Of 42 .(DEFENSE COUNSEL'S AFFIDAVIT p.l)

Ground 4:

j l do not believe that his parents not being in the courtroom during voir dire constitutes a violation of his sixth and fourteenth amendment rights to a public trial. As stated in ground 1, to my knowledge the courtroom was not closed to the public.

Grounds 5-19:

(l did not answer each separately as each ground states essentially the same thing, that l was ineffective for not objecting to the police interview)

_ lt was my trial strategy to not object to the interview as, in my opinion, reinforced our contention that petitioner was innocent A|though pressured by the police detectives Petitioner continued to maintainl in innocence l Wanted the jury to see that he never wavered in spite of the persistence of the detectives Petitioner knew this prior to trial and never questioned me regarding this. `

Ground 20:

Our defense was not that Petitioner never had sex with the victim, but that it was consensual. Defendant admitted this. So l do not see how it was ineffective for me to object to this line of questioning

Ground 21:

, In addition to my answer to ground 20, Petitioner admitted to having sex with the victim in a letter he wrote to the district attorney.

Ground 22:

l don’t understand this ground. VVhat he did not say, nor did he ever say, was that he raped the victim. That was the entire defense in-this case, that it was

consensual.

Ground 23:

This goes back to my answer in grounds 5-19. `

Ground 241 ,

The State explained in voir dire, that if a defendant chose to testify, they had no special protection, that the jury did not have to believe them and presume what that

person testified.to was true. _At no time did the State allude that if a person testified that they lost the presumption of i`nnocence. ' `

p.40 of 42 (DEFENSE COUNSEL'S AFFIDAVIT p._Z)

Ground 25:

This is simply not true. l did not ever,tel| Petitioner that he lost the- presumption of innocence just because he testified

Ground 26:

The State asserts in closing argument that he knew what he Was doing, that he . knew the neighborhood He knew where to go to have undetected sex. The fact that,he went to a location and did in fact have undetected sex indicates he knew where he was 'going. This is not outside the scope of the evidence presented

Grounds 27, 28 & 29:

Petitioner asserts that t'ne victim had “muitipie convictions” l saw no evidence of this. There are two offense reports in which the victim is the complainant but none where she is the suspect The State produced no criminal histories of the victim even after a motion to do so was fled The ocher also denied the existence of a criminal

history for the victim under oath.

Grounds 30, 31 & 32:

This ground alleges impeachment evidence regarding two offense reports in which the victim was the injured party. |n one case, after making the deadly~c`onduct - family member report, she refused to cooperate in the investigation and the detective wasn’t convinced complainant -did not embellish the story. The other offense report was another assault family violence. The police interviewed both her and the suspect and the detective determined that the complainant really didn’t care about the case so he cleared it and said that all the elements of assault were not met.

| do not believe this is impeachment evidence as she was not questioned about it so she did not deny anything regarding these reports Furthermore the mere fact that the police did not file a case against the two suspects does not mean the assaults did nothappen

Ground 33:

Petitioner is simply not telling the truth. As stated earlier in this response, the interview was not objected to because Petitioner steadfastly protested his innocence despite vigorous interrogation. The intent was to show the jury that if he was guilty he would not have maintained his innocence even when the detectives came at him from

many different angles .

Ground 34:

This ground states no “ground” except for grounds 1-33

p.4l of 42 (DEFENSE COUNSEL'S AFFIDAVIT p.3)

le. Gil|iland and l worked many hours on Petitioner's case. We read all of Petitioner’s letters (approximately 20) which included areas of questioning for trial. Petitioner was very engaged in the defense of his case. We discussed the strategy and theme of his case. He knew what we were attempting and was in full agreement Many of the grounds alleged are either false statements, or taken out of context A|though the jury ultimately did not believe it was consensual sex, they did believe him when he said ' he did not use a weapon, convicting him of a second degree felony rather than a first

degree felony.

We werenot ineffective in the defense of Petitioner and request that the Court

deny his habeas corpus relief. f‘jz{

citrus L. Fortian

SUBSCR|BED AND S_WORN T BEFORE ME On Octobe

Fortinberry.

~Najette ll/lartinez LANETTE A. MAR?!NEZ otary Public, State of Texas

2014 by Curtis L.

\\um, \\\ vs 'l ¢` ‘.‘.'.£/),»",

Notary Public, State ot Texas My Commission Expires June 08. 2015

¥

;p.42 of 42 (DEFENSE CoUNsEL's AFFIDAVIT p‘4)