MacOn, Bruce William

• Court: Texas Supreme Court
• Decided: February 5, 2015
• Docket: WR-76,956-08
• Status: Published

Opinion

~’lw,QELp ~Og

February ll 2015

Court Of-Criminal Appeals`

Clerk, Abel Acosta

P.O. Box 12308, Capital Station_

Austin, Texas 78711

RE: Ex Parte Bruce William Macon wrri£ _Nos. w09-00206-H(D`) and wo9-0©207-H(D) Trial Court Nos. FO9-00206 and F09-00207

Dear Clerk/

Enclosed you Will 'find "Applicant's+Traverse To The Trial Court's Findings of Fact And Conclusion Of Law" in the above styled and numbered cause. Please file-stamp

said instrument and brinq it to the attention of the court in your usual fashion.

Thank you for your time and cooperation.l

Respeotfully Submitted:

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Bruce William Macon No.156833l coffield Unit

2661 F.M. 2054

Tennessee Colony, Texas 75884 -

CC: Christine S. Ou v ' . ; RECE[VED m Asslstant Dlstrlct Attorney , CO'uRT oF cR:MlNALAPPEALS

Frank Crowley Courts BLDG. 133 N. Riverfront Blvd..LB-l9 Dallas, Texas 75207-4399

FEB 05 2915

Abei Acosia, Cher§<_

writ No. wO9-00207-H(D)

Ex Parte _ § In The Criminal-

§

§ District Court Bruce Macon § Applicant § Dallas County, Texas

Applicant's Traverse To The Trial Court's Findings Of Fact ' ,And Conclusion Of Law

To The Honorable Court Of Criminal Appeals:

Now Comes, Bruce Macon, Applicant, Pro se, and files this "Applicant's Traverse to The Trial Court's Findings Of Fact And Conclusion Of Law" asking the habeas court to grant this foregoing state post conviction writ of habeas corpus. And, in

support thereof will show this Court the following:

I

On' November 31 2014, Applicant filed this foregoing writ of habeas corpus alleging that he was deprived effective assistance of counsel in violation of the Six and Fourteenth Amendment when his trial counsel failed to inform him that the

state had offered him six months in State Jail on both offenses.

II

On December 17, 2014, Applicant‘s appointed trial attorney, Roger Lenox filed a second affidavit addressing applicant's claim that he was denied effective assis- tance of counsel when Mr. Lenox failed to inform applicant of the six month state . jail offer made by the state. In Mr. Lenox's decond (supplemental) affidavit he

stated in pertinent part:

"This affidavit supplements my affidavit dated on or about October 24, 20l3. I was appointed by the Court to represent Mr. Bruce Macon on or about December Ol, 2009. Mr. Macon was charged with Unlawful Restraint Under 17 in cause nos. F08-63532 and F08-63533i both state jail felonies. The 180 day state »jail plea offer\was communicated to Mr. Macon as a temporary offer. l recall it was a "today only" offer. Mr. Macon rejected the offer straightwas and without

hesitation.

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Mr.l moon was emphatic in his reject1on of the often I returned to the prosecuer ' and communicated Mr. nac¢n's rejection er the state jail plea orrer. 1 remember it well as it was a most generous offer in light of the charges» evidence and potential range of .punisrunent» The entire exchangs, offer and rejection¢ began and aided within a matter of ia few minutes~" (See: Second affidavit of Roget~nenox. nared assesses 17. 2014). ' '

4 ‘_ . on `January 5, 2015¢ the criminal District Court No._ 1, of dallas s¢\.in»l ty, Tezas made ,1t's ”Fi'nding's _Of Faot And Conclusion of Law" finding that:

' "'lhe Gourt has reviewed the district attorney' s file for any mention of the

- 180 day plea bargain offer. No such offer ms ever written on the orig1nal _ d refiled or on the re-indictmsnt files. Lenox states that the 180 day offer was a-"tempora_ry offer" and a "today only" offer. Applicant rejected the offer ` 7 ~ "straightway and w1thout heaitation" and Applicant was "emphat1oe_” in his 1 j _ rejection of the effer. taxes rscalls the offer because 1t was "most generous” in light of the charges¢ evidaiee and potential range of punishment. The entirev offer and rejection "began and ended with1n a matter of a few' minutes.“ (Seea F.Findings 01 E'act, pp.3) ' ~ ' '

clThe trial court then concluded that:

"Applicant has faiied to prove that he received ineffective assistance of counsel.

Applic_ant did not prove that but for the ineffective advise o£ counsel them 4

is a reasonadie probability that Applicsnt would have adoept-sd the plea offer.

Applioant has not been denied any of the rights guaranteed him by the United

states constitution or eha cease oonsti:uz;¢n. .Apprianu is legally sentined~and 4 ‘ restrained." (See: ’donolnsion 0£ Law¢ pp.~$") 7

U

Applieant now contends that the £mdings of test and conclusion of Law reoom~ ~by \' the trial court should de overruled because the trial oourt's findings and mission is contradicted by the record for three reasons &&&&& Firsti the trial oourt'a findings that he reviewed the district attorneys file for any insertion of the 180 day plea bargain offer,. but "no such offer was

\`\ ever written on the original files or on the `r»e-indicted filea" is contradicted by the record¢ because a review of the district coort’ s findings of sect to applicant's third writ of habeas oorpus, ert no. 76,956-05 and No 76,956~06 shows that the

trial court found thatz

"Applicant was initially charged with two state jail felony offenses o£ unlawful _restraint. de was o££_e;red the minimum period of confinement-180 days- in both casa-fane the sentence vance be cancur_rent§witn credit for tashima Applicant rejected the plea bargain offer and insisted on a jury trial.“(see: E'indings

_ of sect And conclusion of raw on amand.pp_.i-w:it no.woe-¢oozo$-a(c} eng woa~ 00206~3(¢) mere£ore¢ the trial oourt' s finding that "No such offer was ever written on the original files" must be overrulod, because such a finding has resulted in an unreasonable determination of the facts in light off the evidence "»contained within the record. l

second ' the trial cantt's finding ‘ ' nat the'lso any offer was a memory

" offers ana `a " "today aniy" often should nine at overruled becath trial concern n_. ssca_id affidavit dated December 171 201_4¢ contradicts his first affidavit dated ' October 241 2013¢ thereby making both affidavits inadmissible. E_‘urt?hermor_s, the fact that trial counsel has given two conflicting statements while ` under ` oath,' shows that trial counsel has admitted perjury in violation of Seotion 37. 031(1\)(1)¢ Texas Penal edge subjecting him to criminal prooecution. A review of both af£1davits are as follows:"""

_ Triol comoo.l's First hf£_i&vit

In trial coansel'sn first - affidavit dated October 241 2013,»while addressing the issuelof` the 180 day state jail often hr._ Lenox stated in pertinent part thats

1 '"! promptly met with Mr. Macon and determined that he wanted a jury trials I 'met with the prosecution m. C'resta match and discussed the caoo. hs. temaster made a plea offer within the state jail range. 1 believe the offer

‘ was 130 days in the state jail on both cascs¢ to be run concurrently and~cre,dit for any 'backtime~ m3 down was insistent on-mainta;ining his innocence and insistedon a apeedy:'trual.'gs. mata and l mt several time ll¥`¢ m and xmuvmluwenvwmmtesmmmuemwwecm Mr. hamm would not accept the plea often within the state jail range of simms mmwemwiwvtrmonmao. 2009.-v

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norm ' in Mr- Lonox s first affidavit the record shows titan Mr. Lenox never stated that __the 180 day stats jail offer was a "today only" offer as stated in second ezclaevl; saved ~`seeeeser 17, 2014. so me merery. nr. sense scenes le me fmc affidavit that-‘.B mm wllht$¢mltw nfomw¥_l$t mw tim she would mmmwesorre&lcatemlldmmm Br.nssc'nwald _notaoceptthepleaef£mwirninrhestatejallrmsee£puniohmont

In salutary, the record shows that trial cowael’s first affidavit states that the State' s offer lasted for at least two months, while trial counsel's b second ' affidavit states that the State’ s offer was a "today only" offer "which began and

t ended within a matter of a few minutes" . (See: Flrst A££ldavit of Roger Lo_nox¢ :_"_.oeeea oeeeser 24. 2013) cotteer re (seeen¢l saleem er Roger renew races seeemsee, l?, 2014) ' ~ ' ~

' Trial mael'saeooudatfldavir

_ fn trial ooujnsol's sesend affidavit dated weather 17, 2014.~ while addressing the issue of the 160 day state jail often Mr. Lener made conflicting statements when he stated them ’ _ , _- ‘

-"The lBO day state jail plea offer was communicated to Mr. Mac_cn ss a_ smcrary

__ offer. I recall it was a “today only" e££er. Mr. Mason rejected the offer

l l \ eeeelghlwey ` eha eleven hesitation me seem wee scheme annie eejeenlee

013-the offer, I returned to the prosecutor and cottrnunicated Mr. Macon~'s rejectlon

of the state jail plea offer.`l remember it well as it was a most generous offer in light of the charges¢ evidence and potential rarth of punis?uuent. The

entire exchange¢ offer and rejection¢ began and ended within a matter of a

few stinutes."' ' ‘ `

ne¢e. le se.» resale seemed affidavit eve record shows chen sr. sense gave conflicting statements when he stated --"I recall it was s "today only“ offer--afr.er totalling that--"Ms meter and I met several times Mr. nelson and I met severaltimas She would mt dismiss the case or reduce to misdenoa_nor. Mr. moon would not accept the plea offer 'withln.'the state jail range of punls!'mtent"-in his'£lrst` affidavlt.

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Furt_:hermore¢ the two a££lchvit-s also shows that Mr. honor made conflicting statements in his second affidavit when he seated stat -~"'l‘he entire exchange¢ offer and rejectiom began and ended within ja matter of a few minutes"-- after stating that--"Ms. Lemaster and I met several times.' Mr. moon and I met several times. Sne

`would not diemiee»vthe` cases or reduce to miademeanore~ Ht. Maconfvoulé not accept 'fthe plea offeta within the state jail range of pdnishment"-in_hia firat»a£fidavit.?

Appl1cant maintains that triai counsel never informed h1m of the 180 day atate ` jail offer and statée that Mr. Lenox 1a lying to cover up his deficient performance` in £a111ng to 1n£orm h1m of that offer. (See: Aff1dav1t of Bruce Macon, Exhibit No 3) And the fact that Mr. benox hae g1ven two conflict1ng statements regard1ng the plea 1,of£er supports applicant'e c1a1m that Mr. tenox never informed h1m of the 180 day ` state ja11 offer. Appl1cant further mainta1na that he would have accepted the 180 . v day state jail offer had he been informed of the offer~ Applicant maintains that he knew the seriousness of the charges against him because he has four prior felony canvict;ons.\ Therefore, he knew that the charges would not be dismissed under any _ " circumstances. Appiicant maintains that considering the fact that he was already@Y » , a four time iooeer, 1t should~be ovious to the court that he would have taken the: 180 day offer 1£ he had been g1ven the opportunity to do eo. ' "' '

Furtherm6re, the fact that Mr. Lenox has g1ven two conflicting statements in 1 his affidavits supports applicant‘e elaine because the record shows that Mr.uLenox ‘ has committed perjury in violation of 3ect1on 37.¢2¢ Texaa Pena1 Code¢ mak1ng both§." affidavits inadmissible in any cr1m1nal or civil proceed1ng\ Hardy v. State, 213 S.W. 3d 916,919(Tex.w1m. App 2007). a@,~:»»~ntly, the trial court'e fin§ings of Facte stating that-”Lenox states that the 186 day offer was a “tenporary oifer" and a

"today only” offer which began and ended within a matter of a few minutes“*~ehould be overruled based upon Mr Lenox' s conflicting af£idavite, because trial counsel'a 2 cannot ,change their statements at will¢ inorder to hide the fact that they failed to provide reasonably effective assistance of counsel. Texaa Penal code § 37 92(vernon supp 2005_) way 213 s.w. ad 916. alarm crim. App. 2007). ` '

'?

Coneequently, the trial court's conclusion of law holding that-"Applicant’“ bee faile§ 'to prove that he received ineffective assistance of counsel. Applicant did not prove that but for the ineffective advice of counsel there is a reasonable probability that Applicant would have accepted the plea offer. Applicant `has not been denied any of the rights guarantee€ him by the United Stataa Gonatitution or the~' Texas~h¢onstitution. Applicant is legally confined and reatrained" ’ -ahould be over~ ruled because thel trial court'a decision ia baae& upon false “‘fidavita made by ‘71 ;~ Mr¢ Lenox, and has resulted in an unreasonable application of clearly established federal law au determined by me supreme court us me united suauuu ‘

‘5

mird, we trial mm findings of smthe mcmann of law should be over- ruled because the trial court failed to investigate or consider applicant‘a witness - affidavits from Jeanette Dixon¢ Applicant's girlfriend (Exhibit'No. l), and Michell Lankford, Applicant'e eieter (Exhibit No. 2). Both of these witnesses stayed in con- stant contact with Mr. Lenox from the first week that Mr. Lenox was appointed to represent applicant until applicant was tried and convicted by the cour§..The fact vthat Mr. -Lenox informed applicant'e family :of all plea bargains is supported by a letter from Mr. Lenox_etating that he communicated to Mr. Macon through his family. |(See: better from Mr. Lenox stating that he communicated to applicant through his family, Jeanette Dixon and Michelle Lank£ord, Exhibit No 4). `

_ The evidence preeented in these affidavits were vital to applicant' s naboee corpus preceeding¢ because both of these witnesses were in constant contact with Mr.4 Lenox during the plea bargain process and both of these witnesses had given 1 sworn affidavits stating that Mr. Lenox never informed them of the 180 day state jail offer¢ but that he did inform them of the twenty year plea offer. (See: Exhib1t No. 1, Affidavit of Jeanette Dixon, and Exhibit No. 2, Affidavit of nicholle Lankfordl

However¢ the record shows that the trial court failed to consider applicant' s '.witnees affidavit while addressing his claim of ineffective assistance of counsel, v thereby denying applicant due process of law in violation of the fifth and fourteenth '~amendment. For this reason and the reasons stated above¢ the “Findings of Fact And Concluaion of Law" of the trial court is unreliable, because it is not euppo§tf '|, by the record F._x nerve arenaley, 781 s. w.zd sae. aav(oex. c¢w. App. 1939). rn conc1u-» eion¢ the recommendation of the trial court mud:be overruled and applicant's habeas corpus petition should be grented¢ reversing his conviction and tenanding his cauee

back to the point of the State prosecutor offering him six months in state jaila Applicant So Movee The Court. '

Reepectfully Submitted:

amos nason no. 1568331 ° Coffield Unit 2661 F.n. 2054 Tennessee Colony¢,Texae 75884 Applicant;j?ro se

I, Br`uce 'Ma¢om Apg_>].icanl:; Pr<> am do hereby certify that a true and correct; ~ haley uf this foregoing instrument has been served upon Christine S. Ou, miatant

' . Distric:t At;torney, E'rank crowley Cour'ta BL;JG.', 133 N. River:£ront `BLVD~¢ LB-1_9¢

. Dallaa, Texas 75207~4399. sxe¢utee on this man day of sébruary, 2015.

l Sign: /BM M 4_/-

ounce Ma¢on, mo. 1558331 Applicant ¢ -Pro se

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E_xhibit maher One (A£fidavit c>f Jaanett;e Dixon}

State Of Texas

Sworn Affidavit

CO?¢O’J&O?¢O'J

County Of Dallas v"""’A`ff:`L"dL’=i'v`it`'O`f"J'ear"ré.>t`;te*D'i'xon`"""""

Before me/ the undersigned authority, personally appeared Jeanette Dixon and

after being duly sworn stated the following:

My name is Jeanette Dixon, and I am over 18 years of age and competent to make this affidavit. I am the Mother of Bruce Macon's children. Prior to Bruce Macon's trial, I talked to Mr. Roger Lenox on many accasions-and even filed a “Non~Prosecu-. tion form" stating that I was not being held against my will on the day of this incident. While talking to Mr. Lenox he would always tell me that the State£sfr.: attorney was offering Bruce twenty (20) years if he plead guilty to both offenses.

But Mr. Lenox never inform= me nor Bruce Macon that the State's attorney had offered Bruce six (6) months in state jail. Had I been informed of a six month state jail offer l would have insured that Bruce would have excepted the offer rather

than go to trial knowing that he could receive twenty-five years to life in prison.

I further state that I have not been threatened or coerced to make this statement, nor have I received or been promised anything of value to make this affidavit. l have signed this affidavit knowingly/ freely, voluntarily and because

the statements made herein are true and correct.

M Q§:;:>

anette Dixon

SubScribed And Sworn To Before Me, the undersigned authorit;, on thiséh§§£ day

Of OCtObEr/ 2014. Z…M wide ~

ota y Public, State of Texas

Qu\NN ‘PONDE)

Nolary Pul)|ic State 01 Taxas

Exhibit Nuuber '.£‘wo (Affidavit of M.ichelle Lankford)

¢O'>¢O'?¢O‘#¢O?W?

County Of Dallas

Affidavit Of Michelle Lankford

Before Me, the undersigned authority, personally appeared Michelle Lankford

and after being duly sworn stated the following:

My name is Michelle Lankford, and I`am over 18 years of age and competent to make this affidavit. I am the sister of Bruce Macon and I have testimony supporting my brother's claim that'Mr. Lenox never informed Bruce of a six month state jail offer.v Prior _to my brother‘s` trial I called and talked to Mr. Roger Lenox on many accasions. I specifically asked Mr. Lenox what was the State trying to offer Bruce? Mr. Lenox told me that the State was offering Bruce twenty (20) years in prison if Bruce plead guilty to both offenses. Mr. Lenox never informed me nor

'Bruce mex\ drm»de£ia&¥s nattorney had offered him six (6) months in state jail. If Mr. Lenox would have informed me or my brother of a six month state jail offer' l would have insured that Bruce Macon would have excepted the offer rather than go to trial knowing that he could.receive twenty+five years to life in prison. I

will testify to this in a court of law.

- I further state that l have not been threatened or coerced to make this statement, nor have l received or been promised anything of value to make this

affidavit. I have signed this affidavit knowingly, eely, voluntarily and

because the statements made herein/are true and correct

oftOctober/'2014.

otgry P blic, State of Texas

%;a\ x \asz_;\x l 3a1 aax.x_z.zaxl_x_xua

§o?“ "1/(,6 QU|NN PONDEXTEH

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z `¢¢ State 01 Taxas , 'l'or\¢ MyComm. [xplros 11 12 2016

Exhib;i_t Nunioer Three (A££iaavir. of Bruce Macon)

601¢0-)¢0)¢0>¢0=¢0:

County Of Anderson

Affidavit Of Bruce William Macon

Before me, the undersigned authority, personally appeared Bruce William Macon

My name is Bruce William Macon, and I am over 18 years of age and competent to make this affidavit. My trial counsel, Mr. Roger Lenox stated in his affidavit that he notified me that there was a plea offer of ,as he stated--"I believe the offer was 180 days" ~-in state jail on both cases, but I insisted on maintaining my innocence and insisted on a speedy trial. This is a false statement. Mr. Lenox did not inform me of the offer of 180 days in state jail made by the State. Had I been informed of this six month_plea offer I would have accepted this offer and taken the 180 days rather than proceed to trial knowing that I could receive 25 years to life in proson if found guilty.

l

When I first got indicted in cause numbers F08-63532 and F08-63533, I was informed by my trial counsel that I was charged with third degree felonies with two enhancement paragraphs on each charge(See: Indictment No.F08-63532 and F08-63533), but that the D.A. would drop one enhancement paragraph and offer me 20 years on both offenses if I plead guilty- Mr. Lenox never informed me of a six month state jail offer. To my knowledge based on information from my trial counsel and the indi- ctments, l was charged with 3RD degree felonies (See:Indictment No. F08-63532 and l F08-63533), because the top right hand corner of each indictment reads: "UNL Restraint U/l7/3RD". This is proof that Mr. Lenox never informed me that I was charged with a state jail offense- This is why I wanted to go to trial, because I would not accept

the first offer of 20 years offered by my trial counsel,

Sign:{B/\/ M@/`

Bruce William Macon

lof 2

I, Bruce William Macon, TDCJ-ID No.l56833l, being presently incarcerated in the Coffield Unit of the Texas Department of Criminal Justice, Institutional Divi- sion in Anderson County, Texas verify and declare under penalty of perjury, that

the foregoing statements are true and correct.

sign: (B/L_/ ML/

Subscribed And Sworn To Before Me, the undersigned authority, on this of July, 2014.

day

Notary Public, State of Texas

2 of 2

inhibit uncover Fout 4 (Letcer aran 'rrial counsel, Roger Lem>c)

Attomey and Counsclor_a! Lzl W

` L/‘\_) LA W OFFICE OF RoGER S. LENOX Ai‘

Thursday, Juiy 26, 2012

Mr- Bennie Ramirez _ \_/IA Eax# 51.2- 427-4122

“"'Posox12487 ' ' "` QMY/@ og%/

Capital Station A"ustin, TX 78711-2487

Re: State of Texas v. Bruce Macon Dear Mr. Ramirez:

As |\communicated to Mr. N|acon through his fami|y, l do not have a file regarding his c`ase. The relevant documents are maintained by the Court.

Therefore, | have no information to mail to him.

Do not hesitate to let me know_ if you have questions or comments

CC:

Mr. Bruce l\/|acon ' ` ‘, #1568331 _

Coffie|d Unit

2661 FM 2054

Tennessee Co|ony, TX 75884

v P.0.Box222128 -DALLA§,_`?;EM§ 75222§`2128 j‘isir?¢}é}vfiéi?jjji}@&b:Fh`€§/Mii§$'éi?i'}jj3_0'§§""'"`_

E-MAIL: .&aaa&zw@aa£c_wrz