Nash, Dwayne Edward

Opinion

WR-83,578-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/28/2015 5:25:10 PM Accepted 7/29/2015 8:11:48 AM ABEL ACOSTA No. WR-83,578-01 CLERK

IN THE RECEIVED COURT OF CRIMINAL APPEALS Court of Criminal Appeals of Texas 7/29/2015 ABEL ACOSTA, CLERK

EX PARTE DWAYNE EDWARD NASH, Applicant,

STATE’S RESPONSE TO APPLICANT’S OBJECTION AND REQUEST FOR REMAND

On Application for Writ of Habeas Corpus from the 33rd Judicial District Court, Burnet County, Texas

MATTHEW OTTOWAY Assistant Attorney General/ District Attorney Pro Tem Burnet County, Texas Counsel of Record Texas Bar No. 24047707

Post Office Box 12548, Capitol Station Austin, Texas 78711 Tel.: (512) 936-1400 Fax: (512) 320-8132 Email: matthew.ottoway@texasattorney general.gov

Counsel for the State STATE’S RESPONSE

Applicant Dwayne Edward Nash, convicted of murder and

sentenced to seventy-five years’ imprisonment, filed an application for

state habeas relief in the convicting court. See generally Tex. Code Crim.

Proc. art. 11.07. After the State answered, the record was forwarded to

this Court, and the case remains pending.

Applicant now asks this Court to disregard the State’s answer

because, according to him, it was filed untimely. Appl. Objection & Mot.

Remand 2. Applicant also seeks remand to the convicting court for

further factual development. Id. at 2–4. The State opposes Applicant’s

requests for the reasons that follow.

ARGUMENT

I. The State’s Answer Was Not Untimely and, Alternatively, Should Be Considered Even If It Was.

After a state-habeas application has been filed, a district clerk is

required to forward a copy “to the attorney representing the state . . . who

shall answer the application not later than the 15th day after the date

the copy of the application is received.” Tex. Code Crim. Proc. art. 11.07

§ 3(b).

1 Applicant filed his state habeas application on June 3, 2015.1

SHCR.6.2 He contends that the district clerk then forwarded a copy of

his application to “the State” on June 4, 2015, though Applicant does not

provide any proof of this event. Appl. Objection & Mot. Remand 2. The

State does not disagree with Applicant’s contention that, on June 4, 2015,

the district clerk forwarded a copy of his state-habeas application to a

prosecuting entity, just not “the attorney representing the state.” Tex.

Code Crim. Proc. art. 11.07 § 3(b).

The State’s disagreement stems from the specific facts in this case.

Normally, the prosecuting entity practicing in the 33rd Judicial District

Court is the District Attorney for the 33rd and 424th Judicial Districts

and his or her assistants (hereinafter “the District Attorney”). Tex. Gov’t

Code § 43.119. Here, however, the District Attorney recused his office

from Applicant’s case—because the victim’s sister worked for the District

Attorney—and the Office of the Attorney General was appointed in its

1 Applicant claims he filed his application on June 2, 2015. Appl. Objection & Mot. Remand 2. The one-day difference between Applicant’s assertion and the record makes no difference for purposes of the current dispute. 2 “SHCR” refers to the documents and pleadings filed in Applicant’s state- habeas proceeding, or state habeas clerk’s record, followed by page numbers.

2 place. CR.37–39.3 Thus, it is not contested that the district clerk

forwarded a copy of the application to the District Attorney on June 4,

2015, but, in this case, that is not the same thing as “the attorney

representing the state.” Tex. Code Crim. Proc. art. 11.07 § 3(b).

Indeed, the State (Office of the Attorney General) filed a receipt-of-

application letter dated June 17, 2015, acknowledging email acceptance

of Applicant’s state-habeas application from the district clerk on June 16,

2015. SHCR.117. Immediately following the aforementioned letter in

the state-habeas clerk’s record is a certified-mail receipt showing

shipping of Applicant’s state-habeas application on June 19, 2015, to the

State (Office of the Attorney General). SHCR.118. Surely, the district

clerk would not have emailed and mailed the State (Office of the Attorney

General) on June 16 and June 19, respectively, had it already done so on

June 4, 2015.

Thus, it is apparent that the district clerk did not serve a copy of

Applicant’s state-habeas application on “the attorney representing the

state,” Tex. Code Crim. Proc. art. 11.07 § 3(b), until June 16, 2015.

3 “CR” refers to the documents and pleadings filed in the convicting court, or clerk’s record, followed by page numbers.

3 SHCR.117. And it is clear that the answer deadline begins to run when

the state-habeas application “is received” by “the attorney representing the

state.” Tex. Code Crim. Proc. art. 11.07 § 3(b) (emphasis added). Fifteen

days following June 16, 2015, is July 1, 2015, which is the date the State’s

answer was filed. SHCR.119. Accordingly, the State’s answer was timely

filed, Applicant’s assertion of dilatoriness is without merit, and the

State’s answer is properly before the Court.

Alternatively, even if the State’s answer was late, it should still be

considered. Applicant provides no support for his untimeliness-equals-

stricken argument, which, in essence, boils down to an assertion that he

is entitled to default judgment because of the State’s supposedly untimely

response. But Applicant should not reap any benefit (in whatever form

that it may take—remand, a hearing, or conviction or sentence relief)

even if the State did not timely respond to his collateral-attack

allegations, see, e.g., Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994)

(“Releasing a properly convicted prisoner or imposing on the state the

costs and uncertainties of retrying him, perhaps many years after the

offense, is apt to be a disproportionate sanction for the wrong of failing to

file a timely [answer].”); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th

4 Cir. 1981) (“[T]he district court could not and should not have visited

upon the community the consequences of the Government’s relatively

brief delay in responding to a court order.”), because the only issue in

habeas is whether there are jurisdictional defects, or fundamental or

constitutional violations in any particular case, see Ex parte Graves, 70

S.W.3d 103, 109 (Tex. Crim. App. 2002), all of which an applicant bears

the burden of proving, see Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.

Crim. App. 2002). As the State’s answer and attached evidence makes

clear, Applicant fails in his burden of proof, and this should not be

ignored simply because of an alleged collateral-review procedural defect.

Moreover, the effective striking of the State’s answer would simply

create make-work. Should the Court remand this proceeding to the

convicting court and order factual development, the State would simply

re-submit the evidence attached to its answer and file proposed findings

utilizing the same legal framework found in its answer. At bottom,

Applicant is seeking a windfall from a claimed dilatory filing by delaying

the conclusion of this proceeding and preventing the State from

submitting what is undoubtedly highly relevant evidence (for example,

the State documented and attached to its answer proof of the delivery of

5 every piece of supposedly suppressed evidence). The Court should not

countenance such tactics.

II. There Is No Need To Remand This Proceeding.

Applicant’s primary argument for remand is predicated on the

State’s allegedly untimely answer—that a general instead of specific

denial was entered upon expiration of the answer deadline. Appl.

Objection & Mot. Remand 3. As explained above, see supra Argument I,

the tardy-filing allegation holds no water. But, even if it did, the State’s

answer should be considered nonetheless, as also explained above. See

supra Argument I. Thus, the factual and legal bases for Applicant’s

primary-remand argument are without merit and remand should not be

predicated on them.

Applicant’s secondary-remand argument is that further factual

development should occur even if the State’s answer is properly before

the Court. Appl. Objection & Mot. Remand 4. As to Applicant’s

suppression-of-evidence claims, the State uncontestably proved that

there was no suppression—trial counsel verbally and/or documentarily

accepted receipt of the supposedly suppressed items (interviews with Dee

Nan Post and Stoney Cox), or the evidence was within Applicant’s

6 knowledge (jail documentation of his physical injuries following a

confrontation with the victim). SHCR.136–42, 190–204. It is hard to

imagine what the purpose of remand would be for such matters.

Moreover, because the supposedly-suppressed evidence is not

material under Brady v. Maryland, 373 U.S. 83, 87 (1963), there are no

“unresolved facts material to the legality of the applicant’s confinement”

Tex. Code Crim. Proc. art. 11.07 § 3(c), requiring resolution. Stated

another way, even if it is assumed that the challenged evidence was

suppressed (a fact issue), Applicant is not entitled to relief under Brady

because he fails to prove a reasonable probability of a different result (a

legal issue). That is because the impeachment value of Dee Nan’s

interview was minimal as it was cumulative of her trial testimony and

alleviated by a prior consistent statement, SHCR.137–38, Cox’s interview

provided nothing that was unknown to the jury and it did not have much

import when viewed in context, SHCR.138–39, and the jail document was

redundant of Applicant’s testimony and suffered from several evidentiary

deficiencies (its timing, generality, and Applicant’s contrary testimony),

SHCR.139–42. There is no reason to remand for factual development

when, legally, Applicant cannot obtain relief.

7 Concerning Applicant’s ineffective-assistance-of-trial-counsel

claims, Applicant was required to overcome a legal presumption of

attorney competence. Strickland v. Washington, 466 U.S. 668, 689

(1984). But the State provided multiple reasons why Applicant’s trial

attorney did not act in the manner Applicant alleges he should have at

the guilt-innocence stage of trial. SHCR.146–63. This includes not

discovering or calling: (1) witnesses that could not link their personal

knowledge to the victim; (2) a child witness; (3) a witness who had spoken

with the victim twice in his entire life; (4) redundant witnesses; (5)

witnesses with little or no personal knowledge; (6) witnesses who would

have been open to devastating cross-examination; (7) witnesses who

would have triggered an overwhelming rebuttal; and (8) an expert

witness whose testimony was most likely inadmissible and unnecessary

if admissible. SHCR.146–63. Remand for trial counsel to reiterate what

is already apparent from the record is needless.

Further, like with the suppression-of-evidence claims, Applicant

cannot demonstrate entitlement to relief even assuming all facts in his

favor—he cannot meet Strickland’s prejudice prong on his guilt-

innocence stage ineffective-assistance claims. The reasons for this

8 largely track the above discussion about counsel’s performance—some

witnesses’ testimony (1) would have been inadmissible on relevance,

personal-knowledge, or hearsay grounds; (2) would have been

significantly impeached; (3) was cumulative of evidence already before

the jury; (4) would have provoked a staggering rebuttal case from the

State; (5) or would have been so broad, non-specific, and unhelpful to the

jury as to have no effect. SHCR.163–74. Additional factual development

is futile when Applicant cannot meet a legal requirement for relief.

The foregoing analysis applies to Applicant’s punishment-stage

ineffective-assistance claims as well. The State offered multiple,

reasonable justifications for trial counsel’s actions—it was sound not to

(1) attack the victim’s sister on cross-examination; (2) call witnesses that

would have opened the door to, or reiterated, severely-damaging evidence

to Applicant’s case; (3) call witnesses who had little actual knowledge; or

(4) call unnecessary and undetailed expert witness. SHCR.177–82. And

these reasons largely prove why Strickland prejudice is lacking—weak,

inadmissible, impeachable, and general evidence does not demonstrate a

reasonable probability of a different result. SHCR.183–86. Once again,

remand is unnecessary where the facts, if assumed true, could not garner

9 relief. As such, and for the reasons above, the Court should deny

Applicant all the relief he has requested. See Tex. Code Crim. Proc. art.

11.07 § 5; Tex. R. App. P. 73.4.

III. Alternatively, If Remand Is Ordered, It Should Be Limited to Applicant’s Ineffective-Assistance Claims.

Should the Court, in its discretion, determine that additional fact-

finding is appropriate, the State would respectfully suggest that the

Court only remand the ineffective-assistance-of-trial-counsel claims. As

is patent from the State’s answer, all of the supposedly-suppressed

evidence was provided to Applicant and such delivery was documented,

or was within Applicant’s personal knowledge such that suppression is

inapplicable. See supra Argument II. There is simply nothing more for

the State to say.

At most, on this record, trial counsel could make explicit what is

already implicit from the record—that he undertook a reasonable

investigation and made professionally-acceptable evidence-presentation

calls (even then, Applicant still cannot prove Strickland prejudice,

however). Thus, if the Court chooses to remand, it should remand only

the ineffective-assistance claims. See SHCR.281–83 (State’s proposed

order designating only Applicant’s ineffective-assistance claims).

10 CONCLUSION

The State respectfully requests that the Court consider its timely

answer, reject Applicant’s request for remand, and deny Applicant all

relief. Alternatively, the State respectfully suggests that remand, if

ordered, should be limited to Applicant’s ineffective-assistance-of-trial-

counsel claims.

/s/ Matthew Ottoway MATTHEW OTTOWAY Assistant Attorney General/ District Attorney Pro Tem Burnet County, Texas Counsel of Record Texas Bar No. 24047707

Post Office Box 12548, Capitol Station Austin, Texas 78711 Tel.: (512) 936-1400 Fax: (512) 320-8132 Email: matthew.ottoway@texasattorney general.gov

Counsel for the State

11 CERTIFICATE OF SERVICE

I do hereby certify that on July 28, 2015, I electronically filed the foregoing document with the Clerk of the Court for the Court of Criminal Appeals of Texas, using the Electronic Filing Manager of the Court. The Electronic Filing Manager electronically transmitted a “Notification of Service” of the foregoing document to the following counsel of record, who consented in writing to accept electronic service of this document:

John G. Jasuta David A. Schulman ATTORNEYS AT LAW 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 zdrdavida@davidschulman.com lawyer1@johnjasuta.com

/s/ Matthew Ottoway MATTHEW OTTOWAY Assistant Attorney General/ District Attorney Pro Tem Burnet County, Texas