Montgomery, Shelton Wade

• Court: Court of Appeals of Texas
• Decided: June 5, 2015
• Docket: WR-83,375-01
• Status: Published

Opinion

WR-83,375-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/4/2015 4:53:30 PM Accepted 6/5/2015 8:58:45 AM ABEL ACOSTA WR-83,375-01 CLERK

IN THE TEXAS COURT OF CRIMINAL APPEALS RECEIVED COURT OF CRIMINAL APPEALS Writ No. 4762-A 6/5/2015 ABEL ACOSTA, CLERK EXPARTE IN THE DISTRICT COURT

OF CARSON COUNTY, TEXAS

SHELTON WADE MONTGOMERY 100™ JUDICIAL DISTRICT

APPLICANT'S OBJECTIONS TO LACK OF FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

NOW COMES Applicant, SHELTON WADE MONTGOMERY, and

files these objections to the lack of Findings of Fact and Conclusions of Law

entered in the cause and would respectfully show the court as follows :

I.

Procedural History of the Case

Shelton Wade Montgomery was charged with two counts of aggravated

sexual assault of a child. On his plea of not guilty a jury trial was held.

Montgomery was convicted and given a sentence of 20 years on count 1 and 25

years on count 2 of the aggravated sexual assault charges on February 1, 2012. An

appeal to the Court of Appeals for the Seventh District in Amarillo was affirmed

on October 27, 2013, cause number 07-12-00070-CR. Montgomery filed a petition for discretionary review in the cause which was refused on February 5,

2014. On May 8,2015, Montgomery filed an application pursuant to Tex. Code

Crim. Proc art 11.07. In the application and memorandum of law, Montgomery

raised substantive grounds of error that merited an evidentiary hearing and review.

An Order Designating Issues and appointing a writ master was submitted

but apparently never signed.

On June 4, 2015, the District Court submitted the application, without

Findings of Fact and Conclusions of Law, to the Court of Criminal Appeals.

Counsel for Montgomery was not provided a copy of the District Court's action.

II.

No Findings have been made

Montgomery timely objects to the trial court's gross breach of procedure

and, requests that the Court of Criminal Appeals remand the case back to the

District Court for proper Findings of Fact and Conclusions of Law based on

evidence gathered by the District Court.

Montgomery has raised a claim of ineffective assistance of counsel at the

sentencing phase of his trial which, if true, would merit relief.

WHEREFORE, PREMISES CONSIDERED, Applicant prays that this court

will remand this case for an evidentiary hearing wherein the live testimony of the

witnesses may be presented, or, alternatively, that this Court find that Applicant has established that his trial attorney rendered ineffective assistance of counsel

and that this Court then vacate Applicant's conviction.

Respectfully submitted,

BRUCE ANTON State Bar No. 01274700

SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 7520 1 214-468-8100 214-468-8104 fax ba@sualaw.com Attorney for Applicant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Objections to Findings of Fact and Conclusions of Law has been served by U.S. mail on the Carson County District Attorney's Office, 800 West Avenue, Box 1. Wellington, Texas 79095, on the 5th day of June, 2015.

BRUCE ANTON