32,778101
coURT oF cRIMINAL APPEALS wRIT No. wR-82,778-01 E:X PARTE § y § IN THE coURT oF cRIMINAL APP©EEQ§M§DW § TEXAS, IN AUSTIN, TX COURTOFCR|M|NALAPPEALS DESMOND LEDET §
FEB 24 2015
OBJECTION #4& THE TRIAL COURT'S FACT FINDINGS AND LEGAL CONCLU~ SIONS CONCERNING GROUNDS #5-19, & #22- 23 ARE:~(l) MISL@MN§Q@O H@lwc THIS COURT; (2)1INACCURATE: (3) INCOMPLETE; (4) IN CONFLICT WITH COURT'OF`CRIMINAL`APPEALSHAND SUPREME COURT PRECEDENT REGARDING THE PREJUDICE PRONG OF STRICKLAND; (5) AND BASED IN RELIANCE ON DEFENSE COUNSEL' S NON- CREDIBLE APFIDAVIT ASSERTION OF STRATEGY, WHEN THAT ALLEGED STRATEGY IS IN FACT OUTRAGEOUS AND UNREASONABLE.
TO THE HONORABLE JUDGES CF THE COURT OF CRIMINAL APPEALS:
The Applicant, Desmond Ledet, respectfully objects to the ha- beas trial court's adoption of the State's proposed findings of fact and conclusions of law presented to this honorable Court as stated above in the heading. This objection has 2 exhibits at- tached to it that are now incorporated into this objection that were objections filed in the trial court to defense counselis affidavit concerning the above said grounds. Though the Appli: has previously filed objections to this Court, prison mail rec- ords will show that he did not obtain the Customary notice from your Court that his ll.O7 was received in this Court until Feb. lO, 2015. This objection is being filed(Prison Mailbox Rule) on Feb._ig!ZOlS. This objection is brief and the majority of it is the exhibits that are already part of the habeas record, incorpv orated nov herein. Im support the Applicant presents:
l: The trial court's factual findings MISLEAD this Court to believe that the Second District Court appeals opinion on direct appeal was the product of a prejudice analysis un- der Strickland that took into account all of the unfairly prejudicial evidence contained in the inadmissible part
(p.8-20 are two seperate p-l of 20 attachments
of State's Exhibit 27 now raised in the writ of habeas corpus that Hon. Fortinberry failed to object to being presented to the jury because it caused the Applicant un- fair prejudice as defined by Old Chief v- United States; 519 U.S. l72, 180(1997); Tex.R.Evid. 403; Hardie v. State, 807 S.W. 26 319, 322(Tex.Crim.App.l991). See "Stater. Proposed...Findings...Conclusions" at p.5, IlG-p. 6, UlQ.
2: The opinion handed down on direct appeal NEVER ANALYZED ALL OF THE EVIDENCE THAT REPEATEDLY CAUSED THE APPLICANT UNFAIR PREJUDICE RAISED IN GROUNDS #5~19, &22 UNDER THE PREJUDICE PRONG OF ”STRICKLAND'. Compare present above said grounds never raised on direct appeal or addressed by Court of Appeals with the opinion on direct appeal.
3: The opinion handed down on direct appeal also NEVER en- gaged in a harm analysis under "Strickland"tto determine whether the Applicant was prejudiced by the numerous in- dividual parts of State‘s Exhibit 27 raised in Ground # 23 of the present writ that violated Applicant's MIRANDA RIGHTS, DUE PROCESS OF LAW(l4th Amend.), & THE FUNDAMEN- TAL RIGHT TO A FAIR TRIAL.
4: In fact the opinion from the Second District Court of Ap- peals did not consider any harm arising from unfair pre- judice and only made mention of ONE invocation made by the Applicant to terminate the interview. See Ledet v. §tate, No.OZ-lO-OOZBl-CR, 2013{WL,1830801,*4~6(Tex.App.- Fortworth .May 2, 2013, pet.ref'd)(not designated for publication).
5: The opinion on direct appeal NEVER ANALYZED OR CONSIDERH ED THE SECOND PRONG OF STRICKLAND BASED ON THE COLLECTIVE UNFAIR PREJUDICE AND PREJUDICE THE APPLICANT SUFFERED DUE TO THE JURY'S VERDICT BEING ENFLUENCED WITH THE EWIDENCE IN THE ABOVE SAID GROUNDS verses THE REASONABLE PROBABILI- TY THE OUTCOME WOULD HAVE BEEN DIFFERENT ASIDE FROM HON. FORTINBERRY'S FAILURE TO SEEK THE EXCLUSION OF IT ALL.
6: The opinion on direct appeal was formed based on an imr'~ proper analysis. specifically only addressing Applicant's invocation to terminate the interview that;he made DIRECT~ LY AFTER INTERVIEW BECAHE ACCUSATIONAL.(OHC€ detective in~ formed Applicant his DNA was in the complainant). Id. at * 4-7. Applicant has raised multiple other invocations in his present writ as causing him unfair prejudice,F
7: The majority on direct appeal came to the conclusion the 'jury hearing the Applicant's first invocation to terminate the interview(all the others raised on ll.O7 were not ana~ layzed) was justified and not prejudicial under Strickland based on a misapplication of Ezkins v. State, 784 S.W. 26
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32, 34-36(Tex-Crim.App.1989) Id.
8: In short the majority opinion on direct appeal, citing Lykins, concluded that "the inadmissible part of the in~, terview" which was played to the_jury before the Appli~ cant ever took the stand to testify "in which Appellant invoked his right to terminate it", COULD BE USED TO IM- PEACH HIM. See Ledet v. State,.supra *4-7.
9: This Court in Hardie v. State, supra, and the Supreme Cou- rt in Qoyle v. Ohio, 426 U.S. 610, 618-19(1976) & Wainwri- ght v. creenfieia; 474'0.$. 284, 291(1986) h駧"méde it well established that a Constitutionally protected right/ privilege , invoked in the face of accusation, post MIRAN- DA warnings, made in connection with a custodial interro-
gation,is not admissible for impeachment purposes.
lO: The Grounds now raised(#5-19, &.#22 & 23)complain of evi; presented to the jury that led the jury to convict the Applicant on an "unfair" basis that had nothing to do wi- th thézelements of the alleged eisense.
ll: Aside from defense counsel's failure to object to the y presentation of all of the unfairly prejudicial evidence raised in the above said grounds there does exist a rea- sonable probability the outcome of the trial would have been different, had that evidence been excluded.
12: The jury rejected the the alleged victims story that she was in the process of exiting the Applicant's vehicle when suddenly:(l) the Applicant pulled a gun, (2) point- ed it at her} (3) commanded she get back in car, (4) and caused her to submit to non-consensual sex under the threat of being shot and killed with the alleged gun. See WState's Proposed...Findings...Conclusions" at p.3, “27 See also alleged victims testimony that was rejected by the Jury. v.5 RR, p.26-p;32; relevant also,va4 RR, p. 18-19, State's opening argument rejected by the jury.
l3: The Applicant testified that the sex was consensual and that he never had a gun, and never threatened the com- plainant with a gun. v.5, RR, p.llO-13l.
14: The Sexual Assault Nurse who examined the alleged vict- im testified that she had based her findings in large part only upon what the alleged victim had told her. v. 4_ RR, p.72, lines 2-8.
15: Detective T.S. O'brien who(along with his partner) con- ducted the custodial interrogation(State's Exhibit 27) testified that other than the complainant telling him she was sexually assaulted there was no evidence that the alleged assault occured. When asked if all he had
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was her word, he testified "YES”. v.5 RR, p.lOO lines 16~ 22.
18.16: As emphasized by the Applicant in the writ, the Second Di- strict Court of appeals, while analyzing only the Appli* cant's first invocation to terminate the interview, never addressing the evidence now raised, expressed that the outcome of this trial was based on who the jury chose to believe, Applicant or the alleged victim. See Ledet v. State, supra at*p;4-7.` And that DNA evidence merely con- firmed that sex did occur. Id. `
l7: So why would a jury who rejected the complainant's story that she consented to a nonconsensual sexual assault un- der the threat of being killed with a gun that was pointed at her, and rejected her story that she had her foot out of Applicant's vehicle exiting,until Applicant pulled a, gun and commanded her to get back in,still return a guil- ty verdict??? '
18: Surely it was not based on her story that the jury reject- ed. l \ ,
19: It is logical that the inadmissible evidence the;jury heard raised in the above said grounds,counsel failed to contest the admission of,is the answer to the above question, and a reasonable probability exist that aside from counsel's deficient performance in failing to object to the admission of said evidence the outcome would have been different.
20: That evidence was never analyzed under the prejudice prong of Strickland on direct appeal and includes but is not li- mited to:
a: the jury hearing the detective in the inadmissible rea COrding: "WHEN YOU'RE TRYING TO COME IN HITH A CLEAN SLATE...LIKE A MAN OF GOD YOU SAY YOU ARE...THEN WHY DON'T YOU TALK TO US." See Application, Ground #14. (p.l4 l`sel§ l);Memorandum, p.33-45
b: the jury hearing the Applicant invoke his right to ' w counsel 7 different times. See Application, Ground #7, #lB¥-#l§(p.l4 § -15 §; & 14 § -l5 £;) Memorandum, Id
c: the jury hearing the Applicant say "I CANCEL THIS IN- TERVIEW" WhiCh was the L A S T TIME OF SEVERAL TIMES THE JURY HEARD THE APPLICANT TERMINATE THE INTERVIEW. ON DIRECT APPEAL THE COURT OF APPEALS ONLY ADDRESSED THE FIRST TIME.(and not under the prejudice prong,in- volving "unfair prejudice"¥-Tex.R.Evid. 403). See Ap- plication, Ground #8(p.l4 Q-l5 §): Memorandum, Id.
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21:
22:
23:
24:
26:
27:
d: etc. See Application Grounds #5-19, &~W22-23.
All of the inadmissible evidence in the above said Grou- nds was offered by the State as substantive evidence of
vApplicant's guilt, to show the jury that the Applicant
had to be guilty, not credible, etcv because he stood on his rights, after receiving MIRANDA warnings_
Invoking MIRANDA rights is not an element of the offense the Applicant was on trial for.
All of the complained of evidence gave the jury numerous amounts of "unfairly prejudicial" evidence to convict the AppliCant On BESIDES THE COMPLAINANT'S STORY THAT WAS RE- JECTED BY THE JURY.
The Funfairly prejudicial“ evidence was emphasized by the State during it's arguments after the close of the eviden- ce. See Application, Ground #21.
Because the jury rejected the complainant's story of being threatened with a gun, and consenting to non-consensual sex under that alleged threat, there exist a reasonable probability aside from all of the complained of error that caused the Applicant unfair prejudice, which denied him a fair trial,the outcome would have been different.
See Passmore v. Estelle, 607 F.2d 662(5th Cir. l979)(Re~§ lief Granted for ineffective assistance when entire pro- ceeding as a whole was fundamentally unfair.) See Memoran- dum, p.40. ' .
Respectfully stated, this honorable Court of Criminal Ap- peals of Texas should reject the State's misleading find- ings and conclusions concerning the prejudice prong of Strickland, ingrelation to above said grounds. This Cou- rt should do a de novo review of harm that is all inclusi- ve of an analysis of the prejudice prong of Strickland in~ volving each individual ground raised seperately and col- lectively. See Applicant's Ground #34, also.
Please see both motions/objections attached and now incor- porated into this objection. A copy of them should have been forwarded to this honorable Court along with the writ , etc. ’
In objection to the the trial Court'S adopti¢n and pres sentation to this Court of the State's proposed findings/ legal conclusions, BOTH ATTACHED OBJECTIONS ARE NOW RE- SPECTFULLY RB-URGED IN THIS HONORABLE COURT. See thiS Ob~ jection, p. 8 -s 10 ¢ & p.l£;- 20
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30:
32:
34:
35:
36:
37:
For what ever reason Hon, Fortinberry failed to object to all of the evidence that the Applicant invoked his constitutional rights, it was not a reasonable trial strategy in light of this Court's precedent, and the Supreme Court precedent that makes it clear that evi- dence of a defendant invoking his rights, post MIRANDA, in the face of accusation, will more than likely give rise to an inference of guilt. See legal citations in Memorandum, p.37-44; See State's proposed Findings... conclusions, at'p.€# UZO
The evidence the Applicant invoked his constitutional rights did not reinforce the defense the Applicant was innocent and the sex was consensual. Such a finding is highly unreasonable in light of the law.
See Profitt v. WaldronL 831 F.2d 1245, 1249(5th Cir. l987)(refusing to indulge a presumption of reasonable- ness as to "tactical" decision that afforded no advan- tage to defense).
See the 5th Cir. asserting: "The Court is, therefore, not required to condone unreasonable decisions parad+ ing under the unmbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strateg gic decision at all." Moore v. Johnson, 194 F.3d 5861 604(5th Cir. 1999).
"The reasonableness of a particular strategic or tacti¥ cal decision is a question of law, entitled to de novo review.' Id.
The evidence the Applicant invoked his constitutional rights reinforced the State's theory that the the Apri plicant was guilty and that the sex was nonconsensual. See State's Proposed...Findings...Conclusions, p.6, m HZO,
The Court of Criminal Appeals held over 20 years ago it is deficient performance for a lawyer to fail to object to a comment on postuarrest silence. McFarland v. State , 845 S.W; 2d824, 844(Tex.Crim.App.l992).
For the foregoing reasons the Applicant objects entire- ly to the fact findings, legal conclusionsl and recomm' mendation of the trial court concerning Applicant's Grounds #5-19, &22 & 23. See State's Proposed...Find- ings...Conclusions, p.l6, U24.
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PRAYER The Applicant, Desmond Ledet, humbly and respectfully prays this honorable Court will acknowledge these objections and enter alternative facts and legal conclusions that are trully support- ed by the record and the law. Ultimately please GRANT the Ap-
plicant the relief he is so desperately seeking. THANKYOU.
Respectfully Submitted
Desmond Ledet #01651095 Telford Unit
3899 State Hwy.98
New Boston, TX 75570
CERTIFICATE OF SERVICE
A true copy of this objection has been placed in the prison mailbox at 3:00 AM, on Feb.l9th, 2015 to be mailed to the Tar- rant Countyl TX. Criminal District Attorney's Office located at
401 West Belknap, Fort Worth, TX, 76196..
DESMOND LEDET
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FLED
"'l~iOMAs A TARRANj".V(‘:;gSH,TH DssT cLERK UEC l 0 2qu No-c-396-010272-1152016-A nME _4L13q>
EX PARTE
in THE 396th JUD§UL#E:::;ISZ::-_~_ DEPu'rv
§ § § DISTRICT coURT oF § §
DESMOND LEEET TARRANT COUNTY, TX
APPLICANT'S OBJECTION TO ATT. CURTIS FORTINBERRY'S AFFIDAVIT AT- TEHPT TO'RECONSTRUCT HIS GROUNDS #5-19, &23(into l ground that he 'was ineffective for not objecting to the police interview) BE~ CAUSE APPLICANT CLEARLY STATED IN THE WRIT APPLICATIQN THAT HE WAS'NOT NOW RAISING A COMPLAINT THAT FORTINBERRY SHOULD HAVE MADE AN OBJECTION TO THE ENTIRE RECORDING,- BUT INSTEAD, THAT HE WAS IN-- EFFECTIVE FOR NOT OBJECTING TO, SUPPRESSING { OR H§VING REDACTED ONLY CERTAIN EXCERPTS FOUND WITHIN THE AUDIO INTERYIEW
TO THE HONORABLE JUDGE OF THE ABOYE SAID COURT:
The Applicant, Desmond Ledet, objecting as stated in the above heading presents the following, after first notifying this Court that this objection was pdaced in the prison mailbox on 12-4-20+ l4(filed under prison mailbox rule). Applicant received Att; Fov-
tinberry's Affidavit on ll-25-2014, 2 days before mail stopped for Thanksgiving.l Applicant humbly presents:
l: See Writ Application(hereinafter "Appli.")at p.14 which is Ground #5, in which the Applicant made it clear that he was in no way complaining about Att. Fortinberry's failure to ob- ject to the entire inadmissible police interview.
2: Specifically on p 14 Applicant stated: "...the 2nd Distri- 'ict Court Of Appeals holding the entire section of the audio tape that this unfairly prejudicial statement was contained in to be inadmissible in the first place on other grounds/
'NOT RAISED NOW"
3: See Appli. at p.15 : "Defense counsel Should have object- ed to this EXCERPT under Tex.R.Evid. 403, but he did not. " 42 Appli. at 14A : "...THIS GROUND AND ALL THESE GROUNDS THAT
DEFENSE COUNSEL, CURTIS FORTINBERRY WAS INEFFECTIVE FOR NOT OBJECTING TO THE CITED EXCERPTS UNDER TEX. R. EVID. 403(un- fair prejudice)"
5:See OXFORD, American Dictionary defining "EXCERPT' as: a short extract from a book, motion picture, peice of music/cv etc." Thus, it is impossible to fairly say Applicant com~ plains counsel should have objected to the police interview,. or that all of grounds #5+19, & 23 are "essentially” that.
p.l Of 3 p.B Of 20
61 Appli. at l§§ b "DEFENSE COUNSEL DID NOT REQUEST THAT THE COURT PERFORM THE BALANCING TEST UNDER TEX. R. EVID- 403. DE- FENSE COUNSEL DID NOT SEEK TO EXCLUDE THIS UNFAIRLY PREJUDI- CIAL EVIDENCE IN ANY MANNER. NOT BY OBJECTION, MOTION TO SUP- PRESS, AT ALL. NOT BEFORE TRlAL OR BEFORE IT'S PRESENTATION.
7: All of grpunds #5-19, & 23 continue in being raised in the writ Application in the same manners cited above. Each grous nd is specific that it is only the specific excerpt, part, or portion that was in itself unfairly prejudicial that Att. Fortinberry was ineffective for not objecting to the presen#v tationwof being raised in these grounds. .
8: Appli. at l4R : "Defense counsel also failed to object to this particular excerpt found within the inadmissible_ part of the statement under Tex§RrEvid. 403”*"5*¥57»**d:' ~“ §" 9: Appli. at l4R : See heading of Ground #23: “...COUNSEL WAS INEFFECTIVE UNDER THE 6th & 14th AMEND. U.S. CONST. FOR FAIL- ING TO OBJECT'TO THE STATE PRESENTING THESE NUMEROUS INDIVI-
DUAL PARTS TO THE JURY;”
lO: also at 153 : "Defense counsel did nothing_to stop these parts of the recording from improperly influencing the jury that Applicant was guilty on an improper basis other than the elements of the charge.
ll: SeehApplicant's Memorandum odilaw from page 33-45.
'12: The determination of Applicant's guilt rested entirely on the credibility of the witnesses and Att. Fortinberry's deficient performance undermined applicant's credibility which was at the very heart of his defense, the implication that Applicant was guilty and uncredible simply because he _n invoked his rights did not come before the jury once, BUT'A MULTITUDE OF TIMES. Att. Fortinberry entirely failed to pro- vide a reasonable trial strategy in his Affidavit for not ob- jecting to the excerpts cited in grounds #5-19, 23 being pre- sented to the jury. rInstead he tried to artfully.sidestep" addressing those grounds by reconstructing them into a single
'Wground"that*hecthought@mightwfitwinbowhislalleged…strategy-, FOR FOREGOING REASONS l OBJECT TO HIS RECONSTRUCTION OF MY( the Applicant) GROUNDS.. Indeed,his reconstructive tactic,
vand his need to attempt such reconstruction in order to try to defeat the individual grounds emphasizes the fact that there was no reasonable trial strategy.
l3: The only significance that the 2nd District Court Of Ap- peals held on direct Appeal that the actual entire part of
the recording these excerpts are found in was inadmissible in the first placellies in the fact that: Lyons v. McCotter. 770 F.Qd 529, 534(5th Cir.l985)(holding that permitting the admis- sion of prejudicial and inadmissible evidence has no strate- gic value)., Fortinberry has proven that.
Respectfully Submitted
v p.2 of 3 p.9$ Of 20
Desmond Ledet # l Telford Unit 3899 State Hwy.98 New Boston, TX 75570
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing object- ion has been sent by U.S. mail to the Tarrant County Criminal Di-
strict Attorney' s 0ffice(Appelate section) located at 401 W.
Belknap, Fort Worth, TX. It was placed in the prison mailbox
under the "PRisoN MAIL BoxRULE" an 12-04-2014.
Desmond Ledet
UNSWORN DECLARATION I, Desmond Ledet, #01651095, am presently incarcerated at the
Telford Unit in Bowie County, TX. I declare under penalty of perjury that the facts stated in this document are true and cor-
rect.
Executed on 12-4-2014
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No. c-396-1152016-A WME
IN THE 396tdngg§::::::::::§§§d§u
Ex PARTE § § § DISTRICT COURT oF § §
DESMOND LEDET TARRANT COUNTY, TX
APPLICANT O B J E C T S TO CURTIS FORTINBERRY'S AFFIDAVIT; SPE- CIFICALLY IN THIS OBJECTION CONCERNING GROUNDS #5-19,& #23; AP- PLICANT OBJECTS TO HIS IMPERMISSIBLE ATTEUPT TO CENTRALIZE HIS GROUNDS #5-191& #23 INTO ONE CONGLAHORATED GROUND RAISING A GROU-
ND APPLICANT NEVER RAISED IN HIS WRIT; AMONGST OTHER OBJECTIONS TO THE HONORABLE JUDGE OF THE ABOVE SAID COURT:
Applicant, Desmond Ledet, respectfully presents this honorable Court with the foQowing OBJECTIONS to Curtis Fortinberry's Affi~ davit which fails to even address Applicant's Grounds #5-19, in the manner that he raised them in his writ. lnstead Fortin- berry has craftily reduced #5-19, into one Ground that Appli~ cant NENER RAISED IN HIS WRIT. Amongst other objections, Appli-
cant respectfully presents the following:
l: The Applicant strongly objects to Defense Counsel's at- tempt to centralize his Grounds #5-19, & #23 into essentially one Ground, asserting in his Affidavit that all of those grou- nds are, as he put it(”essentially the same thing, that I was ineffective for not objecting to the police interview").
2: If these grounds that Fortinberry attempts to reduce into
one ground were "essentially" all the- same, and contending he was ineffective for not objecting to the State:¥ s presentation of the ENTIRE audio interrogation being presented to the jury , then the Applicant would have simply raised one_ground on
that singular issue entitled: DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE PRESENTATION OF THE POLICE INTERVIEW
3: There is no need for that. The State already conceeded that only the first 25 pages were admissible. And on direct appeal the Court of Appeals agreed that after Applicant ter- minated the interview it was inadmissible.
Applicant's grounds are much deeper than that and complain .n only that regardless of Fortinberry's alleged strategies for not contesting the inadmissible recordings admittance before the jury, he was ineffective for not objecting to,seeking rea
d p,i 'of- "',8.; h on grounds #5-19, 23 C?\ ;"`q€}€ EXi’l»i'.‘i-r ~ , mfhzrin€d
9_11 of 20
daction, or suppression of, the individual distinct and se- perate portions that pop up here and there throughout the inadmissible recording that feature on one line or two/here
and there:
a) The Applicant invoking his 5th Amend. right to silence.
b) The Applicant on 7 seperate and distinct occasions in~ voking his right to counsel.
c) The Applicant repeatedly invoking his right to terminate the interview.
d) The detectives blatantly verbally expressing to the Ap- plicant that he had to be guilty since he chose to stand on the above said rights, instead of talking to them and explaining to them how his DNA got in the alleged victim ,even after he had already terminated the interview.(See Ground #14, &23)
e) The detectives repeating Applicant's actual invocations
and emphasizing the fact that he made them as if he was
a bad guy for doing so. Or guilty for doing so. Or not
coming in with a "clean.slatel., ' 4: As will be shown below and proven by an attachment to this ob- jection of pages from the original unredacted transcript of the audio interrogation, portions of the recording were in fact re- dacted prior to it being played to the jury at trial. It was not necessary to suppress the entire recording in order to redact tho- se portions in which the Applicant mentioned his criminal histe ory. Nor did Applicant at any time contend'that counsel should have made an attempt to redact, suppress, or object to the entire recording in order to prevent the jury from hearing the individu- al portions he was ineffective for not protesting the admission of before the jury in Grounds #5-19, & #23.
In support of this objection Applicant points the Tribunal to Lajoie v. State, 237 3d 345(2007)§ In "Lajoie' at 352 the Court said: "Lajoie argues that the court's refusal to suppress the portions of the video in which he requests and mentions an attor- ney was error. We agree" Att. Fortinberry alleges that he had a strategy behind not objecting to the audiopolice hiterview. He
.. d n p;2'of.8_on grounds-F5:19.23j- p.12 of 20
claims he wanted the jury to hear how Applicant: "continued to maintain in innocence...in spite of the persistence of the detec- tives". The inadmissible recording does feature certain parts in which in spite of relentless interrogation Applicant says: You got the wrong dude(or something similar to that in one way or a~ nOther) . BUT THE APPLICANT HAS MOT EVEN ONE TIHE§ EVER ACCUSED DEFENSE COUNSEL FOR BEING INEFFECTIVE FOR NOT OBJECTIMG TO THOSE PORTIONS OF THE RECORDING NOT iBEING REDACTED FROH THE RECORDING. Applicant repeatedly cited "Lajoie"'in the memorandum of law vattached to his writ in support of his Grounds #5-19, &23. See the index of authorities in the memorandum on p.X, and p.36, 37 and 42 where Applicant argues VLajoie" in support ofhhis grounds. In WLajoie" at 353 the Court said: "we cannot say that the State had a distinct need for this ev~ idence in light of other portions of the video which offer gust as much probative evidence of Lajoie's speech pattern. Defense counsel alleges(however falsely) that he had a strategy in not objecting to the portions in which Applicant maintained his innocence. Those portions and that alleged strategy is ir- relevant in light of the fact that he had no Vdistinct need" for the evidence he is ineffective for not objecting to the presenta- tion of before the jury raised in Grounds #5-19, &23. Because "Lajoie" was only complaining about the portions he "requests and mentions an attorney", and not the "other portions" (eguivalent to the portions Applicant is not complaining about in
which he maintains innocence in the face of police badgering) the
Court reversed "Lajoie's" conviction holding that:
p.3 of 8 on grounds #5-19,23 p.l3 of 20
"Furthermore, we believe that presenting the jury with this evidence"(referring only to the portions where Lajoie reque: sted a lawyer)"certainly could»lead to a decision on an im- proper basis, i.e. anyone who immediately and repeatedly
ask for an attorney must be guilty. As such, this evidence has a tendency to be given undue weight by the jury in de- ciding Lajoie's guilt. Therefore we hold that the evidence of Lajoie mentioning an attorney was inadmissible because the probative value was substantially outweighed by the danger of unfair prejudice. See Tex.R.EVID. 403"
"Lajoie", at 353.
THE ONLY DIFFERENCE BETWEEN "LAJOIE's" grounds and Applicant's is that the Applicant raises his in the context of ineffective assistance of counsel,.and the amount of times this type of er~ ror occured do to Fortinberry's deficient performance far exce- eds the_few times it prejudiced "Lajoie". Even in "Lajoie" the Court found the few times the evidence went before the jury to be "multiple" times which definately prejudiced him.
In objection to Fortinberry's alleged strategy presented in his Affidavit, the Applicant heavily emphasizes that the "Lajoie" Court emphasized, referring to the portions of the video "Lajoie" did not raise in hisgrounds,that :'”Morever, there was adequate dialog by Lajoie throughout the video that did not involve him asking for an attorney from which the jury could have observed his speech pattern." Id., at 353. That same reasoning equally Applies here. A simple reading of the Transcription of State's Exhibit 27 reveals that it would have logically flowed well still allowing the jury to repeatedly hear Applicant proclaim he was innocent,or he did not do it, or they had the wrong dude, had thenmultiple portions that caused Applicant unfair prejudice been redacted. Had that been done defense counsel's alleged strategy
p.4 of § on grounds #5-19, 23
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i
would not have been interrupted.
Indeed, the portions of the recording in which Applicant men- tioned his criminal history was redacted and it still flowed wes ll without interrupting the understanding of what was being said at all. The Transcription of State's Exhibit 27 is the redacted version, that was presented by the jury at the trial. State's Exhibit 27A is the original version prior to redaction. In the original version(27A) which is now attached to this_objection motion labeled "PROOF OF REDACTION,EXHIBIT A", on page lB,lstart- ing at the second § of line 7 until line 17, the Applicant exs plained to his interrogator's that he was in jail at 18 and he .found Christ at that time while locked up for aburglary and for trying to sell some dope. That portion is redacted. Please com- pare that page of the original with p.lS of the Transcription of States Exhibit 27.~ The Applicant provided the entire State's Ex- hibit 27(redacted version played at trial) as "EXHIBIT G" in the 'Appendix of the memorandum of law filed attached to his ll.07 Application. Also on the next page of the original also attach- ed tonthis objection as p.2 of"PROOF OF REDACTION, EXHIBIT A" , at p. 19 linesB-lZ_ Applicant says: "I skipped out of community service, man.$" That is also redacted out of Trans.S.Ex.27(play- ed at trial) between line between the second half of line 21 &li- ne 22, on page 18. Please seeit and compare.
BY ALLEGING THAT APPLICANT raised a ground that he did not, presenting an alleged strategy to justify that unraised ground, DEFENSE COUNSEL HAS ENTIRELY FAILED TOVPRESENT TO THIS COURT A
REASONABLE TRIAL STRATEGY TO JUSTIFY NOT OBJECTING TO THE ADMIS-
p.5 of 3 on grounds #5-19,23
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SION/PRESENTATION='BEFORE THE JURY OF THE EWIDE!NICE COHPLAINED A- BOUT IN GROUNDS #5-19, & 23. FOR THAT REASON ALSO APPLICANT A'GAIN GBJECTS. 55 Each ground is seperate and distinct and must be reviewed in- dividually not conglamorated into one ground as Fortinberry sug¢_ gest. applicant o b j e c t s to Fortinberry's artful &fcrafty- insinuation that these grounds be reduced to one ground. One of Applicant's 7 invocations to counsel, is entirely distinct from ground #14 for example when that portion features the detectives alleging Applicant must be guilty (not coming in with a "clean slate") for refusing to talk or give an explaination, etc. 6: Also: a) Fortinberry never argued durihggopening or closing argu- ments that Applicant had to be innocent simply because he maintained his innocence during that interrogation. b) On the other hand the State made heavy argument to the fact Applicant invoked his rights and refused to give an ex- planation of why his DNA was in the alleged victim after he
invoked his rights to terminate the interview. See Applicant€ 's Ground #Zl(emphasizing the error in Grounds #5-19, #23)
c) Fortinberry's allegations that the Applicant knew he would use the audio recording before trial to let the jury hear him maintain his innocence is false.n$uch an erroneous strategy was never discussed with the Applicant.
d) Fortinberry did not present the recording, it was the State. Fortinberry told the Applicant at trial that he had never listened to it prior to hearing for the first time at trial. See Ground 33. v
APPLICANT OBJECTS FOR THOSE REASONS.ALSO TO FORTINBERRY'S EN- TIRE AFFIDAVIT RESPONSE T0 GROUNDS #5-19, &23. Thevsame goes for his Affidavit concerning Grounds #20-26. He has not been honest.
7: The CCA un McFarland v. State, held over 20 years ago, it is p;6 of § on grounds #5-19, 23
p.lG of 20
deficient performance for a lawyer to fail to object to a commes nt on silence.845 S.W. 2d 824,844(TexrCrim.App.l992). In Winn v. Statei the Court said: "we can not understand how that video ta- pe could possibly assist appellant or fit into a sound trial stra- tegy." 871 S.W. 2d 756,764(Tex.App.-Corpus Christi 1993)tfinding- a defense attorney ineffective for introducing a video that con- tained defendant invoking his right to counsel and refusing to n answer questions). See Alston v. Garrison. "Few mistakes by a criminal defense counsel are so grave as the failure to protest
evidence that a defendant excercised his right to remain silent.
See Moore v. Johnson, 194 F.3d 586, 804(5th Cir.1999) "The Cou- rt is not required to condone unreasonable decisions parading un- der the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all:‘ See Profitt v. Waldron, 831 F.3d 2d 1245, l248(5th Cir.l987)(Strickland's mea- sure of deference "must not be watered down into a disguised fo+ rm of acquiescence."); id. at 1249(refusing to indulge presumpt- ion of reasonableness as to "tactical" decision that afforded no advantage to the defense) As far as an advantageous tactical de- cision for not contesting the evidence presented-in Grounds #5-
19, &23) defense counsel has entirely failed to present one.
FOR THE FOREGOING REASONS APPLICANT OBJECTS TO HIS AFFIDAVIT.
Respectfully szb:?tted,! ijn/Ww/l/l/U t M x Desmond Ledet #0&€5§095 ' 3899 State Hwy.98
New Boston, TX 75570 p.7 of 8 on grounds #5-19, 23
p.l7 of 20
CERTIFICATE OF SERVICE I, Desmond Ledet, certify that the original and two copies of
this objection¢have been hand delivered to the Tar rant County, TX, Criminal District Clerks Office with instructions for the Clerk to file original with the 396th Judicial District Court
of Tarrant County,mTX; and to file one copy with the appellate
section of the District Attorney's Office in Tarrant County, TX.
Desmond Ledet
UYNSWORN DECLARATION I, Desmond Ledet, #01651095, mugresentlyincarcerated at the Telfordb Unit‘in Bowie County, TX. I declare under: penalty of
perjury that the facts stated in:this document are true and cor-
rect s
Desmond Ledet‘ ` \
Applicant received Fortinberry's Affidavit on Nov.25th,_2014, \ 2 day's prior to Thanksgiving. Mail did not run onThanksgiving.
Prison mail also does not run on Saturday's
p.8 of 8 on grounds #5-19, 23
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Were you doing that back in West Virginia? No.
What did you --
Y K) Y C>
No,'no. I've been a Christian for quite some
time; but I hadn't -- I hadn't came all the way full --
full -- the Lord Jesus Christ called me out a long time ago when I '- I was 18 years old. I was j- l was in jail --
Q vOkay.
A -- when 1 found Christ.
Q And 1 didn't believe in (unintelligible) at that time.
A Way back -- this is burglary, manr
Q Yeah. l
.A - But-this was some stupid kiddie stuff. Burglary
and trying to sell some dope. l mean, but, I mean, you can check my record. Check it out.
H1 aid not come full-fiedge with christ until -- the Bible Says that he's just and faithful to finish the work that he began within you.
Q That's right.{
A So it was over time that he began that work in me. I been walking clean and straight with the Lord for quite some time. l
Q How long is quite some time?
J, f p.19 of 20 /
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15 16 17 18 19 20 21
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A Quite some time, 1'd say probably about --
20052- 2006?
rO
A No. 1 been walking perfectly, perfectly clean and straight with the hord probably for about two years.
Q Two years. Man, 1 tell you right now 1 applaud you for that. 1 mean, because, man, it takes a lot -- a
lot of people don't understand about religion.
A 1 skipped out of community service, man. 1 got (unintelligible). Q *And we got all day to talk -- (Indistinguishable) A That's what 1'm getting in for right now. Q` And, you know, here's the (unintelligible). 1
really applaud you for that because the fact about religion is people go for religion and they think it' s -- they expect it to be easy. vYou know what, and the thing is __ . . b
A 1 can do all things through Christ. 1 tried to do it on my own. v
Q -- struggle. 4
A 1 tried to -- 1 tried to walk with Christ by my own will, by my own power. 1 have desire in my heart to serve the Lord correctly, but 1 tried to do it on my own
strength. And 1 had to learn that 1 had to humble myself
. in the sight of the living God and allow him to possess
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