North, James Christopher
Opinion
WR-84,239-01
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 12/7/2015 3:43:45 PM Accepted 12/7/2015 3:53:36 PM ABEL ACOSTA
WRIT NO. WR-84,239-01 CLERK
EX PARTE § IN THE TEXAS RECEIVED COURT OF CRIMINAL APPEALS § 12/7/2015 ABEL ACOSTA, CLERK
§ COURT OF
JAMES CHRISTOPHER § NORTH § CRIMINAL APPEALS
TRIAL COURT NO. 9790-D
EX PARTE § IN THE 350TH DISTRICT §
§ COURT OF
JAMES CHRISTOPHER § NORTH § TAYLOR COUNTY, TX
OBJECTIONS TO TRIAL COURT’S “RESPONSE” ON APPLICATION FOR A WRIT OF HABEAS CORPUS
On November 6, 2015, James Christopher North filed in Taylor County’s 350th District Court an Application for a Writ of Habeas Corpus. He raised four grounds of ineffective assistance of his trial counsel, sup- porting those grounds with a detailed 41-page memorandum. Addition- ally, linked with his third ground, North filed a motion for forensic test- ing of the complainant’s clothing.
15 days later, without the benefit of any response from North’s trial counsel or the State—let alone a hearing on the application—the district court filed its own “response.” Cf. TEX. CODE CRIM. PROC. art. 11.07 § 3(c)
(directing State to file answer within 15 days of filing). In two pages— and with every bit as little analysis as that indicates—the court con- cluded that each of North’s claims was facially meritless and thus re- quired no development of unresolved facts. Or the first three claims, an- yway. The court did not bother to “respond” to North’s fourth ground.
The court was wrong. And if it would actually consider North’s ap-
plication, it would recognize that. Accordingly, North objects to the trial court’s summary rejection of his application for a writ of habeas corpus.
I. Trial counsel was ineffective in failing to present North’s most viable defense
In North’s first ground, he argued his trial attorneys performed ob-
jectively unreasonably in failing to present at the guilt phase of trial crit- ical evidence of North’s diminished mental capacity. That diminished ca- pacity caused North to be incapable of forming a culpable mental state. Because his attorneys were consequently unable and unprepared to chal- lenge North’s guilt, North respectfully urged the court that, because he was prejudiced by his attorneys’ failure, their performance was ineffec- tive and he is entitled to a new trial.
In response, the court rejected North’s claim because it found that counsel had no “reason to question [North’s] mental state.” (Resp. at 1).
This reflects a remarkable ignorance of the trial record. The defensive presentation at punishment clearly shows that counsel were aware of North’s diminished mental capacity. Indeed, the defense called a neuro- psychologist at the punishment phase, Dr. Brinkman, who testified that North’s brain injury “affects things like judgments, making decisions, be- havioral control, emotional control.” (RR20: 84, 89). The defense just failed to do so at the guilt phase of trial, thus foregoing the only viable defense to the indictment. Moreover, North’s family repeatedly made his counsel aware of his mental limitations. See, e.g., Attachment 1.
Perhaps, then, that’s why, seemingly paradoxically, the court fur-
ther rejected North’s first ground on the additional basis that North’s mental state was placed before the jury. (Resp. at 2). But, again, North complained of counsel’s failure to enter such evidence at the guilt phase, not punishment.
The court’s rejection of North’s first ground on these bases is en-
tirely unreasonable. If nothing else, the writ application requires some response from North’s trial counsel. Unfortunately, the court’s summary dismissal of this ground is indicative of the remainder of the court’s re- sponses. North thus objects to the court’s findings and conclusion as to
ground one.
II. Trial counsel was ineffective in failing to object to the trial court’s instruction to the alternate juror to be present during the jury’s deliberation
In North’s second ground, he complained of his counsel’s failure to to object to the trial court’s instruction to the alternate juror to be in the jury room during deliberations. In response, the court contended the “presence of the alternate juror in the jury room during jury deliberations was not subject to lawful objection in 2011,” and that, regardless, there is no evidence the alternate juror “had any material effect on the jury’s decision.” (Resp. at 2).
As explained in detail in North’s original memorandum, however, the San Antonio Court of Appeals in 2008 twice held that permitting al- ternate jurors to be present during deliberations violates article 36.22 of the Code of Criminal Procedure’s prohibition against outside influence. See Adams v. State, 275 S.W.3d 61 (Tex. App.--San Antonio 2008), rev’d on other grounds, 312 S.W.3d 23 (Tex. Crim. App. 2010); Trinidad v. State, 275 S.W.3d 52 (Tex. App.-San Antonio 2008), rev’d on other grounds, 312 S.W.3d 23 (Tex. Crim. App. 2010). And as made clear in the affidavit attached to North’s original memorandum, the alternate juror
explicitly expressed during deliberations her opinion that North was guilty. The court’s summary rejection of North’s second ground, then, is every bit as inappropriate as its first. Accordingly, North again objects.
III. Trial counsel was ineffective in failing to investigate and present crucial evidence in support of the alternative defense advanced
In North’s third ground, he complained of his trial counsel’s failure to adequately investigate the case before trial. Indeed, there was evi- dence that supported North’s claim of self-defense. But defense counsel failed to submit for forensic testing for gunshot residue what might have been the most powerful evidence of all: the complainant’s clothing. This evidence would have furthered North’s defense by establishing that the complainant fired his gun at North and may have made the difference between a non-defense and a defense. Concurrent with this ground, North filed a motion to allow for forensic testing now.
The court rejected this ground first because North cannot show what the testing would reveal. But the court’s principal concern in decid- ing whether North’s attorneys exercised “reasonable professional judg- ment” in this instance is whether the investigation supporting their deci- sion not to introduce such evidence was itself reasonable. Wiggins v.
Smith, 539 U.S. 510, 514, 522-23 (2003). And as to that question, “Strick- land does not establish that a cursory investigation automatically justi- fies a tactical decision with respect to sentencing strategy. Rather, a re- viewing court must consider the reasonableness of the investigation said to support that strategy.” Id. at 527 (citing Strickland, 466 U.S. at 691). In this case, where North’s trial attorneys already chose to assert a de- fense of self-defense rather than the more promising mental-state de- fense, their failure to then investigate self-defense was unreasonable.
The court further rejected this ground because several witnesses provided evidence relating to whether the complainant fired his weapon. But “[n]one testified that [the complainant] fired his handgun.” North v. State, No. 11-11-00338-CR, 2014 WL 272455, *3 (Tex. App.—Eastland 2014, pet. ref’d). Were the trial court rejecting this ground on the theory that any evidence revealed by testing would be cumulative, then—the court does not explain itself, so this is North’s best guess—the court is again woefully incorrect. Thus, the entirety of the court’s summary re- sponses to ground three being absurd, North again objects.
IV. Trial counsel was ineffective in failing to prepare witnesses to testify
As noted above, as to this final ground—which itself included three sub-allegations—the court lodged no response at all. Accordingly, North, of course, objects to the trial court’s rejection of his writ without even considering its grounds. V. Conclusion The trial court’s disregard for North’s right to pursue a writ of ha-
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