WR-71,258-03,04 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/5/2015 5:00:00 PM Nos. WR-71,258-03 & WR-71,258-04 Accepted 6/8/2015 8:16:08 AM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK
OF TEXAS, AT AUSTIN RECEIVED COURT OF CRIMINAL APPEALS 6/8/2015 ABEL ACOSTA, CLERK Ex parte Daniel Edward Murray Applicant Habeas Corpus Proceeding under Article 11.07, et seq., C.Cr.P., in Case Numbers W366-80173-06-HC2, and W366-80248-05-HC2, from the 366th District Court of Collin County
Motion for Stay of Proceedings And Remand for Evidentiary Hearing
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Daniel Edward Murray, Applicant in the above
styled and numbered cause, by and through his undersigned lead
counsel, John G. Jasuta, and respectfully files this “Motion for
Stay of Proceedings And Remand for Evidentiary Hearing,” and
would show the Court that on May 12, 2015, the habeas court
entered its findings of fact and conclusions of law, which were
subsequently forwarded to this Court by the District Clerk of
Collin County and received by the Clerk of this Court on May 28,
2015. I
Applicant asserts that the findings and conclusions entered
by the trial court demonstrate the need for confrontation and cross
examination and a rejection of reliance on prior testimony and
affidavits, alone. Examples are found throughout:
A
As to Findings 1 through 10, they are incomplete and ignore
much of the proffered evidence. The trial court finds that attorney
John Hardin’s prior testimony was credible and that it shows that
he advised his client to seek alcohol counseling prior to trial and
that Applicant was at fault for failing to follow this advice. The
series of findings related to this incident are flawed because they
fail to take into account or explain in any manner that counsel
admitted that he did not investigate the facility and did not know
what was offered. Additionally, those findings fail to take into
account the fact that Hardin in no manner assisted his client in
this endeavor from investigating the facility prior to making the
blind recommendation to advising his client of the strictures of the
statutes relating to treatment and the privileges involved.
The findings fail to explain how sending ones client blindly
into a treatment module deemed inappropriate by an expert in the area of the charged offenses constitute anything but deficient
conduct.
B
Findings 15-22 also illustrate the flawed nature of the
findings and the requirement for a hearing. Once again, in
Finding 17, reliance is had on the testimony of attorney Hardin
who is quoted as stating that he made a decision to forego the
services of a psychologist due to his “view” that the Sante
treatment program would fill that role. This is so despite the
uncontradicted evidence that Hardin did nothing to investigate the
facility and its offerings prior to making the, frankly uninformed,
recommendation that Applicant seek treatment at it, and then
made the appropriate recommendation too late to be of any use.
In Finding 21 the habeas court states that Applicant has not
explained how the outcome would have been different all while
quoting the Finstein affidavit as to one point but failing to
recognize that Finstein also swore that Applicant would have been
an ideal candidate for probation. Applicant would submit that the
habeas court failed to give due consideration to the Finstein
affidavit, without rejecting its credibility, demonstrating a need for actual testimony and credibility choices made upon actual
courtroom evidence.
C
Those findings regarding the plea bargain, numbered 27
through 41 are also flawed and demonstrate a need for an
evidentiary hearing. The structure of the plea bargain as it was
explained by counsel prior to entry of the pleas is an important
fact which is unanswered and which is important to complete
resolution. Applicant’s statement that he had, indeed, been
sentenced to thirty and twenty years does not resolve the issue.
D
Findings numbered 42 through 52, relating to the allegation
of ineffective assistance of counsel for failure to prepare for a
punishment hearing, are particularly flawed because they
bootstrap and justify counsel’s failure with his failure. Applicant
had a right to a timely investigation and preparation of a defense,
including as to punishment issues. Finding 49, that counsel’s
failure to call punishment witnesses was not surprising given the
entry into the plea bargain ignores the underlying allegation, that
counsel’s deficient conduct in failing to prepare in advance for a
punishment hearing by speaking with potential witnesses and then evaluating the strength of any potential punishment case
prior to counseling his client to accept the plea bargain offered. In
so ignoring the underlying allegation the particular finding is
typical of all of the findings relating to this issue.
Each of the persons who could have testified for Applicant
were never contacted by defense counsel, despite counsel’s
investigator’s statement that he called the names provided. The
habeas court’s finding that the investigator was credible ignores
the overwhelming evidence that the “investigation” as to
punishment was woefully inadequate. The habeas court does not
find Applicant’s proffered evidence incredible, it simply ignores it.
The duty to investigate does not fall on the client, as the
habeas court would have it, but on the lawyer, who did not make
any effort beyond having his office manager make a few phone
calls. This failure to take into account the underlying allegation
of ineffective assistance of counsel in failing to be adequately
prepared to truly represent his client in deciding whether to plead
guilty or not informs the entry of all of the findings relating to the
plea bargain and demonstrates the need for an evidentiary hearing
in which counsel can detail his investigative actions. II
Applicant asserts that the Findings entered by the trial court,
along with the State’s Answers upon which they were based,
demonstrate the presence of “controverted, previously unresolved
facts material to the legality of the applicant’s confinement.”
Applicant is entitled to resolution of the issue through one of the
several methods mentioned in Article 11.07, § 3(d), C.Cr.P. The
only appropriate and effective manner of resolution is an
evidentiary hearing.
III
Much has been written about the necessity of confrontation
in the search for truth, with a recognition that the courtroom is
that place where that search is conducted. The courtroom is the crucible of the law, where the fire of litigation tests the intellectual and political forces that inform social policy. Discovery - the process by which litigants identify and assemble their evidence - provides the fuel for the fire.
James Gibson, A Topic Both Timely and Timeless, 10 RICH. J.L.
& TECH. 49 (2004). Our literature and case law are replete with
references to the “crucible” of the courtroom.
Members of the Supreme Court of the United States use it
often. Regarding the Confrontation Clause, for example, the Court
Free access — add to your briefcase to read the full text and ask questions with AI
WR-71,258-03,04 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/5/2015 5:00:00 PM Nos. WR-71,258-03 & WR-71,258-04 Accepted 6/8/2015 8:16:08 AM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK
OF TEXAS, AT AUSTIN RECEIVED COURT OF CRIMINAL APPEALS 6/8/2015 ABEL ACOSTA, CLERK Ex parte Daniel Edward Murray Applicant Habeas Corpus Proceeding under Article 11.07, et seq., C.Cr.P., in Case Numbers W366-80173-06-HC2, and W366-80248-05-HC2, from the 366th District Court of Collin County
Motion for Stay of Proceedings And Remand for Evidentiary Hearing
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Daniel Edward Murray, Applicant in the above
styled and numbered cause, by and through his undersigned lead
counsel, John G. Jasuta, and respectfully files this “Motion for
Stay of Proceedings And Remand for Evidentiary Hearing,” and
would show the Court that on May 12, 2015, the habeas court
entered its findings of fact and conclusions of law, which were
subsequently forwarded to this Court by the District Clerk of
Collin County and received by the Clerk of this Court on May 28,
2015. I
Applicant asserts that the findings and conclusions entered
by the trial court demonstrate the need for confrontation and cross
examination and a rejection of reliance on prior testimony and
affidavits, alone. Examples are found throughout:
A
As to Findings 1 through 10, they are incomplete and ignore
much of the proffered evidence. The trial court finds that attorney
John Hardin’s prior testimony was credible and that it shows that
he advised his client to seek alcohol counseling prior to trial and
that Applicant was at fault for failing to follow this advice. The
series of findings related to this incident are flawed because they
fail to take into account or explain in any manner that counsel
admitted that he did not investigate the facility and did not know
what was offered. Additionally, those findings fail to take into
account the fact that Hardin in no manner assisted his client in
this endeavor from investigating the facility prior to making the
blind recommendation to advising his client of the strictures of the
statutes relating to treatment and the privileges involved.
The findings fail to explain how sending ones client blindly
into a treatment module deemed inappropriate by an expert in the area of the charged offenses constitute anything but deficient
conduct.
B
Findings 15-22 also illustrate the flawed nature of the
findings and the requirement for a hearing. Once again, in
Finding 17, reliance is had on the testimony of attorney Hardin
who is quoted as stating that he made a decision to forego the
services of a psychologist due to his “view” that the Sante
treatment program would fill that role. This is so despite the
uncontradicted evidence that Hardin did nothing to investigate the
facility and its offerings prior to making the, frankly uninformed,
recommendation that Applicant seek treatment at it, and then
made the appropriate recommendation too late to be of any use.
In Finding 21 the habeas court states that Applicant has not
explained how the outcome would have been different all while
quoting the Finstein affidavit as to one point but failing to
recognize that Finstein also swore that Applicant would have been
an ideal candidate for probation. Applicant would submit that the
habeas court failed to give due consideration to the Finstein
affidavit, without rejecting its credibility, demonstrating a need for actual testimony and credibility choices made upon actual
courtroom evidence.
C
Those findings regarding the plea bargain, numbered 27
through 41 are also flawed and demonstrate a need for an
evidentiary hearing. The structure of the plea bargain as it was
explained by counsel prior to entry of the pleas is an important
fact which is unanswered and which is important to complete
resolution. Applicant’s statement that he had, indeed, been
sentenced to thirty and twenty years does not resolve the issue.
D
Findings numbered 42 through 52, relating to the allegation
of ineffective assistance of counsel for failure to prepare for a
punishment hearing, are particularly flawed because they
bootstrap and justify counsel’s failure with his failure. Applicant
had a right to a timely investigation and preparation of a defense,
including as to punishment issues. Finding 49, that counsel’s
failure to call punishment witnesses was not surprising given the
entry into the plea bargain ignores the underlying allegation, that
counsel’s deficient conduct in failing to prepare in advance for a
punishment hearing by speaking with potential witnesses and then evaluating the strength of any potential punishment case
prior to counseling his client to accept the plea bargain offered. In
so ignoring the underlying allegation the particular finding is
typical of all of the findings relating to this issue.
Each of the persons who could have testified for Applicant
were never contacted by defense counsel, despite counsel’s
investigator’s statement that he called the names provided. The
habeas court’s finding that the investigator was credible ignores
the overwhelming evidence that the “investigation” as to
punishment was woefully inadequate. The habeas court does not
find Applicant’s proffered evidence incredible, it simply ignores it.
The duty to investigate does not fall on the client, as the
habeas court would have it, but on the lawyer, who did not make
any effort beyond having his office manager make a few phone
calls. This failure to take into account the underlying allegation
of ineffective assistance of counsel in failing to be adequately
prepared to truly represent his client in deciding whether to plead
guilty or not informs the entry of all of the findings relating to the
plea bargain and demonstrates the need for an evidentiary hearing
in which counsel can detail his investigative actions. II
Applicant asserts that the Findings entered by the trial court,
along with the State’s Answers upon which they were based,
demonstrate the presence of “controverted, previously unresolved
facts material to the legality of the applicant’s confinement.”
Applicant is entitled to resolution of the issue through one of the
several methods mentioned in Article 11.07, § 3(d), C.Cr.P. The
only appropriate and effective manner of resolution is an
evidentiary hearing.
III
Much has been written about the necessity of confrontation
in the search for truth, with a recognition that the courtroom is
that place where that search is conducted. The courtroom is the crucible of the law, where the fire of litigation tests the intellectual and political forces that inform social policy. Discovery - the process by which litigants identify and assemble their evidence - provides the fuel for the fire.
James Gibson, A Topic Both Timely and Timeless, 10 RICH. J.L.
& TECH. 49 (2004). Our literature and case law are replete with
references to the “crucible” of the courtroom.
Members of the Supreme Court of the United States use it
often. Regarding the Confrontation Clause, for example, the Court
recently wrote: To be sure, the [Confrontation] Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 (2009).
Along that line, in one its most landscape-changing Confrontation
Clause cases, the Court wrote:
Where testimonial statements are involved, we do not think
the Framers meant to leave the Sixth Amendment’s protection to
the vagaries of the rules of evidence, much less to amorphous
notions of “reliability.” Certainly none of the authorities discussed
above acknowledges any general reliability exception to the
common-law rule.
Admitting statements deemed reliable by a judge is
fundamentally at odds with the right of confrontation. To be sure,
the Clause’s ultimate goal is to ensure reliability of evidence, but
it is a procedural rather than a substantive guarantee. It
commands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the crucible of
cross-examination. The Clause thus reflects a judgment, not only
about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be
determined. Cf. 3 Blackstone, Commentaries, at 373 (“This open
examination of witnesses . . . is much more conducive to the
clearing up of truth”); M. Hale, History and Analysis of the
Common Law of England 258 (1713) (adversarial testing “beats
and bolts out the Truth much better”). Crawford v. Washington,
541 U.S. 36, 61-62 (2004).
Similarly, more than forty years ago, Justice Marshall, joined
by Justices Douglas and Brennan, wrote, albeit in dissent, that “In
our system of justice, the right of confrontation provides the
crucible for testing the truth of accusations . . ..” Arnett v.
Kennedy, 416 U.S. 134, 214-215 (1974)(Marshall, J., dissenting).
Also, seventy years ago, Justice Murphy, defending the right of the
Associated Press to disseminate the news, wrote generally that
evidence, unless undisputed, “should be thoroughly tested in the
crucible of cross-examination and counter-evidence.” Associated
Press v. United States, 326 U.S. 1, 57-58 (1945)(Murphy, J.,
dissenting).
IV
The role of the trial court in habeas corpus matters brought
pursuant to Art. 11.07, § 3, is that of the fact-finder. The ultimate decision is to be made by the Court of Criminal Appeals, guided by
the informed findings and recommendation of the trial court.
Applicant asserts that the only way the Court can properly assist
the Court of Criminal Appeals in its investigation and truly resolve
the question of whether Applicant is able to show counsel’s
ineffective representation and an entitlement to relief is to
schedule a live evidentiary hearing, at which time Applicant would
be able to introduce live testimony supporting his claims.
V
Applicant would suggest that, due to the time required to
obtain witnesses and ensure their presence, as well as to prepare
for a full and complete hearing, the hearing be scheduled no less
than sixty (60) days from the date of the setting of the hearing.
Prayer
WHEREFORE PREMISES CONSIDERED, Appellant prays this
Honorable Court to grant this motion in all things and remand the
cause to the habeas court with instructions to hold an evidentiary
hearing. Respectfully submitted,
_______________________________ John G. Jasuta Attorney at Law 1801 East 51st Street, Suite 365474 Austin, Texas 78723 eMail: lawyer1@johngjasuta.com Tel. 512-474-4747 Fax: 512-532-6282 State Bar No. 10592300 Attorney for Applicant Daniel Edward Murray Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains 1,710 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on June 5, 2015, a true and correct copy of the above and foregoing “Motion for Stay of Proceedings And Remand for Evidentiary Hearing” was transmitted via the eService function on the State’s eFiling portal, to Amy Sue Melo Murphy (asmurphy@co.collin.tx.us), counsel for the State of Texas.
______________________________________ John G. Jasuta