Sixta, Daniel James

I 1

WRIT NUMBER: WR-60-547-13

IN THE

COURT OF CRIMINAL APPEALS

AUSTIN,TEXAS COURT OF CRIMINAL APPEAL*

FEB 23 2015

EX PARTE Alb8lAoos£a8CI@irk

DANIEL JAMES SIXTA

APPLICANT.

APPLICANT'S SUGGESTION FOR

RECONSIDERATION ON THE COURT'S

OWN INITATIVEo TRAP 79.2(D).

Trial Court Cause Number:923949, from the

351st District Court of Harris County, Texas

Daniel James Sista

Applicant- pro se

TDCJ #:1143232

H.H. Coffield Unit

2661 F.M. 2054

Tennessee Colony,TX 75884

ORAL ARGUMENT REQUESTED.

WRIT NUMBER: WR-60-547-13

IN THE

COURT OF" CRIMINAL APPEALS"

AUSTIN,TEXAS

EX PARTE

DANIEL JAMES SIXTA

APPLICANT.

APPLICANT'S SUGGESTION FOR

RECONSIDERATION ON -THE COURT' S

OWN INITATIVE. TRAP 79.2(D).

Trial Court Cause Number:923949, from the

351st District Court of Harris County, Texas

Daniel James Sixta

Applicant- pro se

TDCJ #:1143232

H.H. Coffield Unit

2661 F.M. 2054

Tennessee Colony,TX 75884

ORAL ARGUMENT REQUESTED,

WRIT NUMBER: WR-60-547-13

EX PARTE

DANIEL JAMES SIXTA

APPLICANT

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

Applicant suggests tbf- the'-Court it should on its own motion

or its own initative, pursuant to ". Texas Rules of Appellate

Procedure 79.2(d), reconsider the denial of his application

for a writ of habeas corpus.

A. INTRODUCTION

The Applicant is Daniel James Sixta; the respondent is

the State of Texas by and through the Harris County District

Attorney.

Applicant suggests , on its own initative, the Court.recon

sider the denial of Applicant's application for a writ of habeas

corpus.

B.w FACTS

On December 12, 2002, Applicant was convicted of the offense

EX PARTE SIXTA-MOTION 79.2(d) PAGE.1

of Intoxication Manslaughter and sentenced to 20 years confine

ment in the Texas Department of Criminal Justice, with a 5,000

dollar fine.

Applicant entered a Plea; of NOT-Gulity. His trial was

before a jury for the guilt-innocence and the punishment. App

licant testified only at the punishment phase of the trial.

Applicant's conviction was affirmed by the First Court

of Appeals on December 18, 2003./ The Appellate cause number

is: 01-02-01316-CR. Applicant filed a Petition for Discretionary

Review (NO. 032804) which was denied in 2004.

Applicant's first application for a writ of habeas corpus

under art. 11.07 was denied on July 26, 2006. His second applic

ation seeking relief from the final judgment was dismissed for

non-compliance, on May 23,v2012.

Importantly, before the filing of his third application

for writ of habeas corpus, the legislative enactment of Article

11.073, went into effect. Applicant alleged in his third writ

application that this new law, and new scientific evidence,

unavailable prior to October 1, 2013, entitled him to pass•thro

ugh the gate-keeping provision of Section 4 of art. 11.07.

This court denied his third application on:

C. ARGUMENT & AUTHORITIES

a. Texas Rules of Appellate procedure,,79.2(d)

Texas Rules of Appellate procedure,Rule 79.2 provides "A

motion for rehearing on order that denies habeas corpus relief

EX PARTE SIXTA-MOTION 79.2(d) PAGE,2

under Code of Criminal Procedure, articles 11.07..., may not

be filed. The Court may on its own initative reconsider the

Case." Tex.R.App. P'roc. Ann. 79.2(d) (Vernon's 2013). See, Ex

parte Moussazadeh,(Tex.Crim.App. 2012, 2012 WL 468518)(Moussaza-

deh's suggestion that the Court reconsider the denial of his

previous application for writ of habeas corpus, on its own mot

ion .)

b. Texas Code of Criminal Procedure, art. 11.073.

This past legislative session, Senate Bill 344 was passed

and was codified as Article 11.073 of the Code of Criminal Proc

edure to create an avenue for relief for people who were wrong-

fuly convicted as a result of unavailable or erroneous scientific

evidence. This statute, which took effect on September 1, 2013,

allows for a writ of successive writ of habeas corpus to be

brought concerning relevant scientific evidence that: "(1) was

not available to be offered in evidence by a convicted person

at the convicted person's trial; or (2) contradicts scientific

evidence relied on by the State at trial." Act of June 14,

2013, 83rd Leg., R.S., Ch. 412 2013, Tex.Sess.Law Serv. 1197

(West 2013) (codified at Tex.Code Crim. Proc. Ann, art. 11.073).

Additionally, in order to consider new advances in science,

the statute directs the trial court to make a finding to [c]on-

whether the scientific knowledge or method on which the relevant

scientific evidence is based has changed since "the trial date

or the date that the original" or previously-considered applic-

EX PARTE SIXTA-MOTION 79.2(d) ~~ PAGE.3

ion for writ of habeas corpus was filed." Id.

Prior to the passage of this bill, under the strict limit

ations of the Code of Criminal Procedure, the convicted were

only allowed to advance one writ of habeas corpus, absent strict

procedural hurdles.(See Tex.Code.Crim.Proc. Art. 11.07 §4.) The

result was that when scientific principles were undermined by

advancing science, those convictions could not be challenged.

The rationale in the passage of this statute was most likely

the procedurally-complex case of Neal Hampton Robbins.

In Ex parte Robbins, 360 S.W. 3d 446, 448 (Tex.Crim.App.

2011), Mr. Robbins sought relief from his 1999 Montgomery County

capital murder conviction, which had been based largely upon

testimony of the medical examiner. The medical examiner testif-

ifed that the death of the complainant child was the result

of asphyxia from compression. Id. at 460- Years after her test

imony, the medical examiner stated that she could no longer

stand by her prior testimony that the death was a homicide.

Id. at 499. The Examiner claimed she "[c]ould no longer testify

within a reasonable of medical certainty that the complainant's

death in this case was the result of compression asphyxia" or

"[t]hat the [manner] of death in this case was homicide." Id.-at

460. After hearing from numerous experts and witnesses, the

Trial court recommended that Mr. Robbins be granted a new trial

"[bjcause his due process and :due course of law rights were

violated, as was his right to an impartial jury." Id. at 457.

EX PARTE SIXTA-MOTION 79.2(d) PAGE,4

Despite the typical deference given to Trial court's" findings,

the Court of Criminal Appeals denied relief, determining that

at the time the medical examiner gave her testimony it was not

"false." Id at 463. The rationale was based largely on the fact

that Robbins had not unquestionably established his innocence.

In dissent, Judge Cochran expressed the difficulties with the

case as follows:

When scientific experts honestly and sincerely thought

"X" was true at the time they testified, but the sci

ence has changed or the experts' understanding of

of the science has changed and their opinions have

changed, what cognizance of the change should the

the criminal justice system take long after a person

has been convicted? Id. 469 (Cochran, J., dissenting).

To put Robbins in context, a review of Ex parte Henderson

384 S.W. 833 (Tex.Crim.App. 2012) is helpful. In Henderson,

a child's death was again the offense, but the crucial issue

was whether the short-distance fall that resulted in the death

'could' have been an accident. The single contested issue

in the 1995 capital-murder trial was whether applicant intended

to kill [the complainant] or whether she recklessly, negligently,

or accidentally caused his death." Id. at 838. At the original

trial, the medical examiner "[t]estified that it was 'impossible'

for the [complainant's] extensive brain injuries to have occurred

in the way that applicant stated. He testified that her story

was false and incredible.'" Ex parte Henderson,246 S.W. 3d 690,

691 (Tex.Crim.App. 2007). The medical examiner opined it was

an "intentional murder," and further declared, "[I] would

EX PARTE SIXTA-MOTION 79.2(d) PAGE,5

say the baby was caught up with the. hands by the arms along

the body and then swung and slammed very hard against a flat

surface." Id at 691.

However, the science of biomechanics had advanced rapidly

between Henderson's trial and 2007, when she sought a stay of

execution. At that time, and after considering the new scient

ific reports, the medical examiner stated:

Since 1995, when I testified..., the medical profession

has gained a greater understanding of pediatric head

trauma and the extent of injuries that can occur in

...relatively short distance falls, based in part

on the applicantion of .principles of phyiscs and bio

mechanics.... If this new scientific information

had been available to me in 1995, I would have taken

it into account before attemption to formulate an

opinion about the circumstances leading to the injury.

Henderson, 383 S.W.3d at 839

While the Henderson Court in a per curiam, one-page opinion,

did "[n]ot accept the trial court's conclusions concerning actual

innocence," but accepted "[t]he court's recommendation to

grant relief and remand for a new trial." id at 834. And while

opinion did not distinguish Robbins, Judge Cochran concurred

in the granting of the new trial, but noted that "[t]his case

raises the same novel and difficult issue for the criminal-

justice system that this court faced, and , I maintain, fumbled

in Ex parte Robbins." Id. at 837 (Cochran, J. Concurring) In

trying to explain the distinction between the two cases, Judge

Alcala wrote in a concurring opinion that "[t]his trial court

finds that new scientific evidence is the basis for ordering

a new trial." Id. at 851(Alcala, J. concurring).

EX PARTE SIXTA-MOTION 79.2(d) PAGE,6

A""distinction; without a difference could best describe

the disparate results between the two cases. Robbins has now

filed an original application for habeas corpus relief under

Article 11.073,° and it has been filed and set for consideration.

This case will probably be the seminal decision addressing the

statute, and may well be applicable to this applicant's convic-

tdon.

c. Applicant's claims were cognizable under 11.073.

Applicant's claim is cognizable pursuant to Article 11.073,

(a)(1) and (2). There is little doubt that some convictions

result from testimony or other evidence that is based upon dub

ious scientific principles. Article 11.073 gives those convicted

under scientific principles that are no longer valid a proper

vehicle to obtain post conviction relief, and the Legislature

has passed this new law to authorize judicial review of convict

ions based on faulty scientific principles.

On November 27, 2013,. this: Court, entered,;*the following order: The parties shall brief the

the following issues: (1) whether Article 11.073 is a new legal or factual basis under Article

11.07, :4(a); (2) whether an "original application or a previously considered application,"

as set out in Article 11.073(c),(d)(2), means an application filed on or after September 1,

2013, (3) whether " the scientific knowledge or method on which the relevant scientific evid

ence is based," as set out in article 11.073(d), applies to an individual expert's knowledge

and method; (4) whether relevant scientific evidence is "currently available and was not avail

able and was not available at the time of the convicted person's trial because the evidence

was not ascertainable through the exercise of due diligence," as,set out in Article 11.073(b)(1)-

(A), if an experts witness for the State no longer stands by his opinion testimony at trial

andand the jury heard testimony (from the defense that is consistent with the State's expert's

new, post-trial opinion; (5) whether "changed," as set out in Article 11.073(d), applies to

cases in which an expert witness changes his opinion after trial; and (6) whether Applicant

is entitled to relief under Article 11.073 (b). The parties shall brief these issues. The

parties may also brief any other issue they deem relevant to the construction of Article 11.03.

Esc parte Robbins, No. WR-7384-02, 2013 WL 6212218 ,at *1 (Tex.Crim.App. Nov 27, 2013, order)

(not designated for publication).

EX PARTE SIXTA-MOTION 79.2(d) PAGE,?

In Applicant's C-Writ, on page four (4) of the application

where he is required to provide "the reason that the current

claims were not presented and could not have been presented

on [his] previous application." He makes clear the C-Writ is

being brought under the provisions of the new law: Art.11.073.

[Texas Code of Criminal Procedure].

That Applicant explained in his First Ground offered for

for review that he was actually innocent, and that based on

on the newly dicovered evidence which should have been considered

under Art. 11.073 that:

There was a collision between applicant's vehicle

and another vehicle, the passenger in the other vehicle

[was] killed. it was vital to the State's case to

prove the collision was applicant's fault. It was also

vital for 'indigent' applicant, charged with intoxication

manslaughter, to prove the driver of the other vehicle

(Alford) was at fault. He was assured by counsel he'd

have an expert to combat the State's version of the

of the collision. The court and counsel agreed that

applicant needed to opinion of an expert to reconstruct

the collision. The court allowed court-appointed counsel

$750 for that purpose, yet failed to obtain the defense

witness, a witmess crucial to Applicant's defense.

The money was not used for that purpose, and counsel

made no attempt to get additional funds. Applicant

was left without his defense.

After Applicant filed his first pro se application

his counsel was ordered to submit his affidavit explain

ing his actions. He stated in his affidavit that the

money allowed was not enough to hire an expert, and

EX PARTE SIXTA-MOTION 79.2(d) ~ PAGE,8

"that a defense witness would not have testified differ

ently as to the evidence presented by the state." (exhi

bit four [in the C-Writ]) Later/ after Applicant had

filed his first pro se application the defense evidence

was "newly discovered" by Applicant himself/ he being

unable to secure it sooner. He was denied his defense

at trial and left to discover it for himself after trial,

he didn't have funds/ counsel or training to "discover"

the vital evidence any sooner. Finally/ a family member

provided funds in 2007 (exhibit seven [in the C-Writ])

after Applicant had done all he could to secure the

evidence. (exhibit eight[in the C-Writ] the newly dis

covered evidence (the Cope Report) which could have/

and should have/ been presented for applicant at trial

would have included the following "findings and opin

ions" of the expert: the driver of the other vehicle

"failed to yield right of way" and "failed to keep a

proper lookout." The State's investigator "failed to

address the evasive action" taken by Applicant and failed

to include the fact that he [Applicant] "braked" prior

to impact. The weather and road conditions should have

been considered. The report also states, "it is also

my opinion that a jury trial without an accident recon

struction professional is highly unfair and would be

almost impossible for an accused driver to receive a

fair trial/" and that the "State would have provided

funds for accident reconstruction professional."

He also stated: "this expert has worked for the

plaintiff/ defense and procutors [sic]invarious cases, and

has the opinion that a reconstruction is important

as well as confident legal representation in any case

involving accidents." Exhibit ninefin the C-Writ]).

This claim and evidence presented (the Cope Report) was

EX PARTE SIXTA-MOTION 79.2(d) PAGE 9

sufficient to bring Applicant's C-Writ within the pale of the

newly enacted provision of Art. 11.073, Tex.Code Crim. Proc.

d. The trial court failed in its duty to applicant

On 2 May, 2014, .the State filed its proposed findings of

fact, conclusions of law and order. The Trial court adopted

these findings of fact, and conclusions of law on 1 July 2014.

Stating:

The Court has considered the application for writ

of habeas corpus, the State's answer, and official

court records in the above-captioned cause. The court

finds that the applicant has failed to include suffic

ient specific facts establishing that the current

claims could not have been presented previously because

the factual or legal basis for the claim was unavail

able; or that by a preponderance of the evidence,

but for a violation of the United States Constitution,

no rational juror could have found the applicant guilty

beyond a reasonable doubt. Tex.Code Crim.Proc.Ann.

art. 11.07 §4(a)(West 2013).

Importantly, the court failed to determine if the. C-Writ

contained specific facts indicating that:

(A) relevant scientific evidence is currently available

and was not available at the time of the convicted

person's trial because the evidence was not ascertain

able through the exercise of reasonable diligence

by the convicted person before the date of or during

the convicted person's trial; and

(B) the scientific evidence would be admissible under

the Texas Rules of Evidence at a trial held on the

date of the application;....

EX PARTE SIXTA-MOTION 79.2(d) PAGE,10

Applicant's newly discovered "scientific evidence," con

sisted of the true details, analysis and reconstruction of the

motor vehicle collision between the vehicle Applicant was driving

and another vehicle, the collision resulting in the death

of the passenger in the other vehicle. The record supports

that the scientific evidence was unavailable to the Applicant

before the date Applicant filed his first Application.

The new scientific evidence was derived using "Engineering

Dynamics Corporation (EDC) software, with the aid of an on-staff

engineer, which included, HVE, EDCRASH, EDSMAC and SIMON. The

new 3-D, 5.0 version was developed as a sophisticated, 3- dimen

sional user environment for setting up and executing simulations

involving humans and vehicles interacting with their environment.

This scientific evidence determined, among other things, that

the Applicant was traveling between 45-53 mph before braking,

that he braked before the collision, that the police investig

ation was incomplete, that the driver of the other vehicle failed

to yield right of way, and failed to keep a proper lookout.

(See 6.0- findings and opinions included in the C-Writ appendix

"Cope Report".)

C CONCLUSION

The Applicant filed his G-writ, including new scientific

evidence which calls into question the evidence used by the

State in convicting him of the offense of Intoxication manslau

ghter. That the new scientific evidence was not ascertainable

EX PARTE SIXTA-MOTION 79.2(d) PAGE, 11

through the exercise of reasonable diligence on or before

he filed his first writ application. And that the new scient

ific evidence and method on which it was ascertained changed

since the date of Applicant's trial.

D. PRAYER

For all of these reasons, Applicant prays that the court

on its own initative reconsider his C-Writ application.

Respectfully submitted,

Daniel Jame& Sixta'

Applicant-pro se

TDCJ # 1143232

2661 F.M. 2054

Tennessee Colony, Tx 75884

EX PARTE SIXTA-MOTION 79.2(d) PAGE,12

APPENDIX-APPENDIX-APPENDIX-APPENDIX

0

]

EX PARTE SIXTA-MOTION 79.2(b) APPENDIX

]

-7?-'

Case No.

(The Clerk ofthe convicting court will fill this line 'inJ

P IN THE COURT OF CRIMINAL APPEALS OF TEXAS

APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROMFTNAL FELONY CONVICTION

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME: DANIEL JAMES SIXTA

DATE OF BIRTH: SEPT. 9,1960

PLACE OF CONFINEMENT: COFFEELD UNIT, TENNESSEE COLONY, TX

TDCJ-CID NUMBER: 1143232 SID NUMBER:

(1) This application concerns (check all that apply):

S aconviction \J parole

U a sentence D mandatory supervision

LI time credit [] out-of-time appeal or petition for

discretionary review

(2) What district court entered the judgment of the conviction you want relieffrom'

(Include the court number and county.)

,ST

351ai DISTRICT COURT OF HARRIS COUNTY. TX

(3) What was the case numberin the trial court?

923949

(4) What was the name ofthe trial judge?

MARK KENT ELLIS

Effective: January 1, 2014

(5) Were you represented by counsel? If yes, provide the attorney's name:

_______ YES, MICHAEL BARROW

(6) What was the date that the judgment was entered?

DEC. 12, 2002

(7) For what offense were you convicted and what was the sentence?

INTOXICATION MANSLAUGHTER: 20 YRS. TDCJ-BD & 5000 FINE

(8) If you were sentenced on more,than one count of an indictment in the same court at

the same time, what counts were you convicted of and what was the sentence in each

count?

(9) What was the plea you entered? (Check one.)

guilty-open plea guilty-plea bargain

not guilty nolo contenderelno contest

If you entered different pleas to counts in a multi-count indictment, please explain:

(10) What kind of trial did you have?

D no jury Xj jury for guilt and punishment

jury for guilt, judge for punishment

(11) Did you testify at trial? If yes, at what phase of the trial did you testify?

YES: PUNISHMENT

(12) Did you appeal from the judgment of conviction?

__ yes [] no

If you did appeal, answer the following questions:

(A) What court of appeals did you appeal to? FIRST DIST. OF TX., HOUSTON

(B) What was the case number? 01-02-01316-CR

(C) Were you represented by counsel on appeal? If yes, provide the attorney's

name:

YES, LEPRA KAHN

(D) What was the decision and the date of the decision? AFFIRMED: 12-18-03

(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?

'__ yes [] no

If you did file a petition for discretionary review, answer the following questions:

(A) What was the case number? 0328-04

(B) What was the decision and the date of the decision? DENIED: 2004

(14) Have you previously filed an application for a writ of habeas corpus underArticle

11.07 of the Texas Code of Criminal Procedure challenging this conviction?

8 yes D no

If you answered yes, answer the following questions:

(A) What was the Court of Criminal Appeals' writ number? WR-60-547-03

WR-60-547-09

(B) What was the decision and the date of the decision? DENIED: JULY 26.2006

DISMISSED: MAY 23.2012

(C) Please identify the reason that the current claims were not presented and could

not have been presented on your previous application.

(1) Actual Innocence - Newly Discovered Evidence: Defense evidence re. true

cause of collision denied to innocent Applicant although discoverable by counsel.

Was not until after he was in TDCJ-ID and filed his 1st pro se application that he

was able to get his own expert's report, evidence newly discovered by him but not

heard by his jury. (2) Actual Innocence-Constitutional Error: Deprived of

defense—due process. Also, no help with writ-law. (3) New Law: Art 11.073. re.

scientific evidence, unavailable until 9-1-13 appears to elevate status of new evidence

claim. Also, Padilla v. Kentucky. S. Ct. (3-31-2010) shows collateral consequences of

conviction are inside scope of counsel's representation, not available when 1st

application filed. (Habeas action should be included as "collateral consequence of

conviction".)

(15) Do you currently have any petition or appeal pending in any other state or federal

court?

Dyes __ no

If you answered yes, please provide the name of the court and the case number:

(16) If you are presenting a claim for time credit, have you exhausted youradministrative

remedies by presenting your claim to the time credit resolution system of the Texas

Department of Criminal Justice? (This requirement applies to any final felony

conviction, including state jail felonies)

yes no

If you answered yes, answer the following questions:

(A) What date did you present the claim?

(B) Did you receive a decision and, if yes, what was the date of the decision?

If you answered no, please explain why you have not submitted your claim:

(17) Beginning on page 6, state concisely every legal ground for your claim that you are

being unlawfully restrained, and then briefly summarize the facts supporting each

ground. You must present each ground on the form application and a briefsummary

of the facts. Ifyourgrounds andbriefsummary ofthefacts have notbeenpresented on

theform application, the Court will notconsider your grounds.

If you have more than four grounds, use pages 14 and 15 of the form, which you may

copy as many times as needed to give you a separate page for each ground, with each

ground numbered in sequence. The recitation of the facts supporting each ground

must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law if youwant to present legal

authorities, but the Court will not consider grounds for relief set out in a

memorandum of lawthat were not raised on the form. The citations and argument

must be in a memorandum that complies with Texas Rule of Appellate Procedure 73

and does not exceed 15,000 words if computer-generated or 50 pages if not. If you

are challenging the validity of your conviction, please include a summary of the facts

pertaining to your offense and trial in your memorandum.

GROUND ONE:

ACTUAL INNOCENCE

(NEWLY DISCOVERED EVIDENCE)

FACTS SUPPORTING GROUND ONE:

THERE WAS A COLLISION BETWEEN APPLICANT'S VEHICLE AND

ANOTHER VEHICLE. TITF PASSENGER IN THE OTHER VEHICLE KTI LFTV TT

WAS VITAL TO THE STATE'S CASE TO PROVE THE COLLISION WAS

APPLICANT'S FAULT. IT WAS ALSO VITAL FOR "INDIGENT" APPLICANT.

CHARGED WITH INTOXICATION MANSLAUGHTER. TO PROVE THE DRIVER OF

THE OTHER VEHICLE (ALFORD) WAS AT FAULT. HE WAS ASSURED BY

COUNSEL HE'D HAVE AN EXPERT TO COMBAT THE STATE'S VERSION OF THE

COLLISION. THE COURT AND COUNSEL AGREED THAT APPLICANT NEEDED

THE OPINION OF AN EXPERT TO RECONSTRUCT THE COLLISION. THE

COURT ALLOWED COURT-APPOINTED COUNSEL $750 FOR THAT PURPOSE.

YET COUNSEL FAILED TO OBTAIN THE DEFENSE WITNESS. A WITNESS

CRUCIAL TO APPLICANT'S DEFENSE. THE MONEY WAS NOT USED FOR

THAT PURPOSE. AND COUNSEL MADE NO ATTEMPT TO GET ADDITIONAL

FUNDS. APPLICANT WAS LEFTWITHOUT HISDEFENSE.

AFTER APPLICANT FILED HIS FIRST PRO SE APPLICATION HIS COUNSEL

WAS ORDERED TO SUBMIT HIS AFFIDAVIT EXPLAINING HIS ACTIONS. HE

STATED IN HIS AFFIDAVIT THAT THE MONEY ALLOWED WAS NOT ENOUGH

TO ITTRF AN EXPERT. AND "THAT A DEFENSE WITNESS WOULD NOT HAVE

TESTIFIED DIFFERENTLY AS TO THE EVIDENCE PRESENTED BY THE STATE.''

(EXHIBIT FOUR) LATER. AFTER APPLICANT HAD FILED HIS FIRST PRO SE

6

APPLICATION THE DEFENSE EVIDENCE WAS "NEWLY DISCOVERED" BY

APPLICANT HIMSELF. HE BEING UNABLE TO SECURE IT SOONER. HE WAS

DENIED HIS DEFENSE AT TRIAL AND LEFT TO DISCOVER IT FOR HIMSELF

AFTER TRIAL. HE DIDN'T HAVE FUNDS. COUNSEL OR TRAINING TO

"DISCOVER" THE VITAL EVIDENCE ANY SOONER. FINALLY, A FAlun V

MEMBER PROVIDED FUNDS IN 2007 (EXHIBIT SEVEN) AFTER APPLICANT HAD

DONE ALL HE COULD TO SECURE THE EVIDENCE. (EXHIBIT EIGHT) THE

NEWLY DISCOVERED EVIDENCE (THE COPE REPORT) WHICH COULD HAVE.

AND SHOULD HAVE. BEEN PRESENTED FOR APPLICANT AT TRIAL WOULD

HAVE INCLUDED THE FOLLOWING "FINDINGS AND OPINIONS" OF THE

EXPERT: THE DRIVER OF THE OTHER VEHICLE "FAILED TO YIELD RIGHT OF

WAY" AND "FAILED TO KEEP A PROPER LOOKOUT." THE STATE'S

INVESTIGATOR "FAILED TO ADDRESS THE EVASIVE ACTION" TAKEN BY

APPLICANT. AND FAILED TO INCLUDE THE FACT THAT HE "BRAKED" PRIOR

TO IMPACT. THE WEATHER AND ROAD CONDITIONS SHOULD HAVE BEEN

CONSIDERED. THE REPORT ALSO STATES. "IT IS ALSO MY OPINION THAT A

JURY TRIAL WITHOUT AN ACCIDENT RECONSTRUCTION PROFESSIONAL IS

HIGHLY UNFAIR AND WOULD BE ALMOST IMPOSSD3LE FOR AN ACCUSED

DRIVER TO RECEIVE A FAIR TRIAL." AND THAT THE "STATE SHOULD HAVE

PROVIDED FUNDS FOR ACCIDENT RECONSTRUCTION PROFESSIONAL."

HE ALSO STATED: "THIS EXPERT HAS WORKED FOR THE PLAINTIFF.

DEFENSE AND PROCUTORS IN VARIOUS CASES. AND HAS THE OPINION THAT A

RECONSTRUCTION IS IMPORTANT AS WELL AS CONFIDENT LEGAL

REPRESENTATION IN ANY CASE INVOLVING ACCIDENTS." (EXHIBIT NINE)

GROUND TWO:

ACTUAL TNNOCENSE

("INTERTWINED" WITH CONSTITUTIONAL ERROR)

FACTS SUPPORTING GROUND TWO:

THE RECORD. ESPECIALLY THE COURT-ORDERED AFFIDAVIT OF HIS

TRIAL ATTORNEY. CONFIRMS THE FACT THAT APPLICANT WAS DENIED DUE

PROCESS OF LAW. DENIED THE OPINION OF HIS OWN EXPERT. EVEN THE

STATE'S RESPONSE IN ITS "RESPONDENT'S ORIGINAL ANSWER" TO

APPLICANT'S FIRST "11.07" LENDS CREDIBILITY TO APPLICANT'S CLAIM

THAT HIS TRIAL COUNSEL DP) NOT ADEQUATELY INVESTIGATE THE CAUSE

OF THE COLLISION. WHEN THE STATE ASSERTS THAT IN ORDER TO OBTAIN

HABEAS RELIEF THE APPLICANT "MUST SHOW WHAT A MORE IN-DEPTH

INVESTIGATION WOULD HAVE REVEALED." (EXHIBIT SIX) APPLICANT'S

NEWLY DISCOVERED EVIDENCE (THE COPE REPORT) SHOWS WHAT "A MORE

IN-DEPTH INVESTIGATION" WOULD HAVE REVEALED AT TRIAL.

THE OUTCOME OF THE CASE DEPENDED UPON THE ANSWER TO THIS

QUESTION: WHICH DRIVER CAUSED THE COLLISION WHICH RESULTED IN

THE DEATH? IN ORDER TO GET A CONVICTION THE STATE HAD TO PROVE

THAT APPLICANT WAS AT FAULT. TO BE ACQUITTED APPLICANT HAD TO

SHOW OTHERWISE.

THE STATE'S KEY WITNESS. ALFORD. WAS THE DRIVER OF THE

VEHICLE TN WHICH HER SISTER WAS RTDING AS A PASSENGER. HER SISTER

DIED AS A RESULT OF INJURIES RECEIVED TN THE COLLISION. THE RECORD

SHOWS THE FOLLOWING: (1) THE SISTERS WERE IN A RENTED CAR AND IT

8

WAS ALFQRD WHO UNDERTOOK TO DRTVE THE CAR. FOR THE FIRST TIME:

(PAGE 15 OF EXHTBTT TFN): (2) ALFQRD WAS FAMTJJAR WITH THE AREA

WHERE THE COLLISION OCCURRED: (PAGE 16 OF EXHTRTT TEN): (3) TT

WAS ABUSY INTERSECTION ON THAT NIGHT: fPAGE 19 OF EXHTBTT TEN), p)

IT WAS ALFORD'S SISTER WHO WAS WATCHING OUT: "MY SISTER

SCREAMED OUT. "WATCH OUT." AND I LOOKED AT HER ATNTO SAD) "WHAT?"

(PAGE 21, LINE 7OF EXHIBIT TEN): (5) ALFQRD HAD NOT EVEN LOOKED IN THE

DIRECTION OF APPLICANT'S VEHICLE TJNTTL AFTER HER VFHTCLE WAS

STRUCK. (PAGE 21. LTNE 21 OF EXHTBTT TEN) CLEARLY. ALFQRD FAH ED TO

KEEP APROPER LOOKOUT.

HAD APPLICANT BEEN PROVIDED WITH HTS OWN ACCTDFNT

RECONSTRUCTION EXPERT. ESPECIALLY WHEN COUPLED WTTTT THE ABOVE

EVIDENCE, THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DTFFFRFNT

NO REASONABLE OR RATIONAL JUROR WOULD HAVE FOUND APPLICANT

GUILTY BEYOND A REASONABLE DOUBT

GROUND THREE:

- — INEFFECTIVE ASSISTANCE OF COUNSEL

(FAILURE TO ADEQUATELY INVESTIGATE FACTS OF THE CASE)

FACTS SUPPORTING GROUND THREE:

A VERY CLEAR FACT IS THAT THE CAUSE OF THE COLLISION WHICH

RESULTED IN THE DEATH OF THE PASSENGER TN THE OTHER VEHICLE WAS A

VITAL PART OF THE STATE'S CASE. LIKEWISE. THIS ISSUE WAS IMPORTANT

TO APPLICANT'S DEFENSE. YET. APPLICANT'S COUNSEL FAILED TO

ADEQUATELY INVESTIGATE THIS CRUCIAL ASPECT OF THE CASE: HE FAn,FD

TO BE READY TO COMBAT THE STATE'S VERSION OF THE CAUSE OF THE

COLLISION.

THE TRIAL COURT. OBVIOUSLY CONCERNED AFTER APPLICANT HAD

FILED HIS FIRST PRO SE APPLICATION. ORDERED COUNSEL TO Fn.F AN

AFFIDAVIT STATING. AMONG OTHER THINGS. WHETHER HE HAD

"INVESTIGATED POTENTIAL WITNESSES WHO COULD HAVE REBUTTED THE

STATE'S PHYSICAL EVIDENCE." COUNSEL'S AFFIDAVIT REVEALS HOW

LAME HIS EFFORTS WERE. CONSISTING ONLY OF TALKING TO OTHER

ATTORNEYS AND REVIEWING THE "FACTS. FIGURES. AND COMPUTATIONS"

OF HIS OWN WITNESS. AND THEN CONCLUDING. "THAT A DEFENSE WITNESS

COULD NOT HAVE TESTIFIED DIFFERENTLY AS TO THE EVIDENCE

PRESENTED BY THE STATE" (EXHTBTT FOTTtt)

COUNSEL FAILED TO USE THE MONEY (ONLY $750) TO SECURE A

DEFENSE TO THE STATE'S VERSION OF THE CAUSE OF THE COLLISION. AND

FAILED TO ASK THE COURT FOR MORE FUNDS. HE DID NOT SEEK OUT AND

10

INTERVIEW POTENTIAL WITNESSES. FAniNG TO MAKE AN INDEPENDENT

INVESTIGATION OF THE FACTS OF THE CASE. IT WAS A MATTER OF

NEGLIGENCE AND MONEY. NOT AMATTER OF STRATEGY. •

A PROPER INVESTIGATION OF THE FACTS BY COUNSEL WOULD HAVE

RESULTED TN A DEFENSE AT LEAST AKIN TO THE DEFENSE APPLICANT WAS

LEFT TO DISCOVER FOR HIMSELF. (COPE REPORT-EXHTBIT NINE)

APPLICANT WAS HARMED BY COUNSEL'S FAILURE TO ADEQUATELY

INVESTIGATE THE FACTS OF THE CASE. AS SHOWN BY THE GUILTY VERDTCT

AND MAXIMUM TIME ASSESSED BY THE .HJRY: BUT FOR THTS FAILURE OF

DUTY. THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT. AS NO

REASONABLE OR RATIONAL JUROR WOULD HAVE CONVICTED APPLICANT.

FURTHER. APPLICANT'S ATTORNEY FAILED TO ASK FOR ANY KIND OF

HEARING TO EVALUATE THE TESTIMONY OF THE SHEREFF'S DEPARTMENT

EMPLOYEE WHO WAS TO GIVE HIS OPINIONS REGARDING THE COLLISION.

THE TRIAL JUDGE DID NOT REVIEW THE OPINIONS OF THE

WITNESS BEFORE THEY WERE ADMITTED INTO EVIDENCE. THERE WAS

NO TEST OF THE SOUNDNESS. BASIS. OR VALIDITY OF THE SO-TALL"

"SCIENTIFIC" OR "EXPERT" TESTIMONY TO BE PROFFERED BY THE STATE.

11

GROUND FOUR:

. INEFFECTIVE ASSISTANCE OF CONSEL

(FAILURE TO ASSERT AN AVAn.ABT E DEFENSE)

FACTS SUPPORTING GROUND FOUR:

APPLICANT'S COUNSEL FAILED TO ASSERT AN AVAILABLE DEFENSE A

DEFENSE WAS OUT THERE. WATTTNG. DISCOVERABLE BY COUNSEL HAD HE

DECIDED TO OBTAIN TT FOR APPLICANT'S DEFENSE. COUNSEL WAS

ILL-PREPARED FOR CROSS EXAMINATION OR FOR ADVANCING A DEFENSE

THE RECORD SHOWS TT WAS A MATTER OF NEGLIGENCE AND MONEY. NOT A

MATTER OF STRATEGY.

APPLICANT'S COUNSEL HAD BEEN ALLOWED FUNDS TO SECURF. AN

EXPERT TO ANALYZE AND RECONSTRUCT THE MOTOR VEHICLE COT TTSTON

IN ORDER TO COMBAT THE STATE'S VERSION OF THE COLLISION FIRST. HE

WHOLLY FAILED TO USE THE FUNDS FOR THAT PURPOSE. SECONDLY. HE

WHOLLY FAILED TO TRY TO OBTATN MORE FUNDS FOR THAT PURPOSE. THE

NET RESULT OF THESE FAILINGS WAS THAT APPLICANT WAS DENIED HTS

DEFENSE, A DEFENSE WHICH WOULD HAVE SHOWN THAT THE DRIVER OF

THE OTHER VEHICLE WAS AT FAULT. THEREBY CAUSING THE DEATH OF HER

PASSENGER. SUCH EVIDENCE ESSENTIALLY NEGATING THE STATE'S

VERSION OF THE CAUSE OF THE COLLISION. APPLICANT HAS SHOWN THAT

A DEFENSE TO THE STATE'S VERSION OF THE COLLISION WAS AVAH ART jr.,

DISCOVERABLE BY COUNSEL. YET HE FAn.FD, WITHOUT SUFFICIENT CAUSE-

TO PRESENT IT FOR APPLICANT. NO REASONABLE OR RATIONAL HTROR

WOULD HAVE CONVICTED APPLICANT HAD THE DEFENSE BEEN PRF.SF.NT~

12

13

GROUND FIVE:

INEFFECTIVE ASSISTANCE OF COUNSEL

(FAILURE TN PERFORMANCE)

FACTS SUPPORTING GROUND FIVE:

COUNSEL PRESSED APPLICANT TO TESTIFY AT PUNISHMENT PHASE OF

TRIAL. DISREGARDING HIS PHYSICAL AND MENTAL CONDITION. SHORTLY

BEFORE THE PUNISHMENT PHASE OF HIS TRIAL APPLICANT HAD TRUED TO

KILL HIMSELF. FAILING ONLY BECAUSE OF A BED CHECK THAT NIGHT.

OVER 100 STITCHES TAKEN IN HIS ARM. A FEW HOURS LATER HE WAS

TAKEN BACK TO THE COURTROOM FOR THE PUNISHMENT PHASE OF HIS

TRIAL. HE DIDN'T WANT TO GO THROUGH THE PAINFUL PROCESS OF

CHANGING BACK INTO HIS SUIT. BUT THE JUDGE SENT A DEPUTY TO

FORCIBLY MAKE HIM CHANGE FROM THE JAIL SUIT INTOHTS SUIT. YET.

THE BLOOD ON HIS SLEEVES COULD BE SEEN. AS THE BANDAGES WENT FROM

HIS KNUCKLES to TTTS ELBOWS. (HE HAD CUT THE VEINS ON HIS HANDS

BECAUSE HEWANTED TO "BLEED OUT" AS FAST AS POSSIBLE.)

APPLICANT'S PHYSICAL AND MENTAL CAPACITIES WERE CLEARLY

DIMINISHED. YET NEITHER HIS COUNSEL NOR THE COURT MADE ANY

ALLOWANCE FOR HIS CONDITION. HE WAS COMPEIT ED TO CONTINUE.

THE JUDGE ADMONISHED HIM NOT TO MENTION THE SUICIDE

ATTEMPT. HE WAS DENIED A RIGHT TO EXPLAIN HIS CONDITION OR THE

OUALITY OF HIS TESTIMONY TO THE JURY. THE JUDGE APPARENTLY FELT

APPLICANT WAS LUCKY TO BE ALIVE: HE SAID. "MR. SKTA. T'M

14

NOT—WHATEVER HAPPENED LAST NIGHT. OBVIOUSLY. I'M GLAD YOU'RE

ALIVE AND ALL THAT STUFF. BUT THAT'S NOT RELEVANT TO THIS HEARING

SO, YOU'RE NOT TO TALK ABOUT IT." (EXHIBIT ELEVEN) TT WAS NOT

UNTIL A FEW DAYS LATER THAT APPLICANT. BY READING A NEWSPAPER

ACCOUNT. REALIZED WHAT ALL HAD HAPPENED .

THE NET RESULTS OF APPLICANT'S CONDITION. AND THE RESPONSE OF

COUNSEL AND THE COURT TO IT. WAS THAT APPLICANT RECIEVED THE

MAXIMUM TIME OF TWENTY YEARS. _^^^

IN COUNSEL'S AFFIDAVIT HE WAS TOLD TO "STATE WHETHER

COUNSEL BELIEVED THAT APPLICANT HAD SUFFICIENT PRESENT ABILITY TO

CONSULT WITH COUNSEL WITH A REASONABLE DEGREE OF RATIONAL

UNDERSTANDING AND HAD A RATIONAL AND FACTUAL UNDERSTANDING OF

THE PROCEEDINGS AGAINST HIM ON THE DATE OF THE TRIAL." COUNSEL

GAVE APPLICANT A GLOWING REPORT. FACING TO MENTION APPLICANT'S

CONDITION. (PAGES " 82" &"83". EXHTBTT FOUR)

FORCING APPLICANT TO TESTIFY IN HIS CONDITION DEPRIVED HTM OF

THAT FAIR TRIAL AND THAT DUE PROCESS OF LAW TO WHICH HE WAS

ENTITLED. NO REASONABLE OR RATIONAL JUROR WOULD HAVE ASSESSED

THE MAXIMUM TIME OF 20 YEARS HAD APPLICANT NOT BEEN PHYICAT LY

AND MENTALLY IMPAIRED AT THE PUNISHMENT PHASE OF HIS TRIAL. YET

MADE TO TESTIFY WITHOUT EVEN THE BENEFIT OF MITIGATING EVIDENCE.

15

GROUND SIX:

INEFFECTIVE ASSISTANCE OF COUNSEL

(FAILURE IN PERFORMANCE)

FACTS SUPPORTING GROUND SIX:

COUNSEL FAILED TO PRESENT MITIGATING EVIDENCE AT THE

PUNISHMENT PHASE OF THE TRIAL.

HE. COULD HAVE SHOWN APPLICANT'S POSITIVE ACCOMPLISHMENTS.

STTCH AS HIS MILITARY EXPERIENCE. HIS EDUCATION. HIS POSITIVE CAREER

ACCOMPLISHMENTS. AND POSITIVE ASPECTS OF APPLICANT'S NATURE AND

CHARACTER. AND ALL OTHER MITIGATING EVIDENCE ALLOWED BY LAW.

THE DENIAL OF THE MITIGATING EVIDENCE RESULTED TN APPLICANT'S

RECEIVING THE MAXIMUM TWENTY YEAR SENTENCE. SOME EXAMPLES OF

THE MITIGATING EVIDENCE WHICH COULD HAVE BEEN SHOWN ARE:

EDUCATION: HIGH SCHOOL: CITY OF HOUSTON ELECTRICAL

APPRENTICE PROGRAM; UNIVERSITY OF HOUSTON STATIONARY

ENGINEERING PROGRAM; ADAMS SCHOOL OF ENGINEERING: STATIONARY

ENGINEERING PROGRAM; MILITARY SERVICE: RANK E4 CORPORAL:

HONORABLE DISCHARGE; MPS Mn.TTARY POLICE; THREE MERITORIOUS

PROMOTIONS; TWO MERITORIOUS MASS; DECORATIONS: MERITORIOUS

UNIT COMMENDATION; OVERSEAS COMMENDATION; GOOD CONDUCT

COMMENDATION: RIFLE MARKSMAN: PISTOL MARKSMAN. MILITARY

PERSONAL HIGHLIGHTS: CHOSEN TN 1980 TO COMPETE IN COMPETITION

CALLED "SUPER SQUAD" CONSIDERED TO BE ONLY FOR THE BEST OF THE

BEST OF THE ENTIRE MARINE CORP. EVENTUALLY FINISHED 4th PLACE.

16

RECEIVING A MERITORIOUS PROMOTION. E4 IN UNDER TWO YEARS. CAREER

PROGRESSION: 1981 -1983: OB GILBERT ELECTRIC - ELECTRICIAN. A

HIGHLY OIIAT TFTFD DEDICATED TECHNICALLY SKILLED ELECTRICIAN. 1983

- 1986: IJJNE INTEREST - LICENSED STATIONARY ENGINEER. SERVICING

WATER CHILLERS, BOILERS. GENERATORS. COOLING TOWERS. WATER

TREATMENT. ENERGY MANAGEMENT SYSTEMS. 1986 - 1990: STXTA GATE

(DBA) OWNER - INSTALLING AND SERVICING ALL TYPES OF ACCESS

CONTROL EQUIPMENT. PROVIDED COMPLETE SCOPE OF INFORMATION

FROM SCHEMATICS. BLUE PRINTS. ON-SITE TRAINING FOR PERSONNEL.

1990 -2002: G.F.A.C.. INC. CEO - FOUNDED RESEARCH AND DEVELOPED A

COMPANY TO CREATE THE STATE OF THE ART ACCESS CONTROL COMPANY

SPECIALIZING IN THE SERVICE AND INSTALLATION OF ALL TYPES OF ACCESS

CONTROL EQUIPMENT. VIDEO CAMERAS. TELEPHONE SYSTEMS. INTERCOMS.

UPS. GATE OPERATORS & SECURITY SYSTEM. KEY PADS. RETTNA SCANNERS.

PRINT SCANNERS. WAS LICENSED DISTRIBUTOR FOR NINE

MANUFACTURING COMPANIES. TEXAS STATE LICENSES: 3rd GRADE

STATIONARY ENGINEERING: BOILER OPERATOR: ELECTRICIAN:

VOLUNTEER HISTORY: 6 YEARS BRIGHT HORIZON DAY CARE PARENT

ADVISORY BOARD: 3 YEARS LITTLE LEAGUE COACH: 3 YEARS LITTLE

LEAGUE TEAM SUPPORTER: 5 YEARS PTO HAIR GROVE ELEMENTARY: 4

YEARS HABITAT FOR HUMANITY: 9 YEARS SAN JACINTO CORVETTE CLUB:

CHURCH: 11 YEARS MEMBER OF THE BREAD OF LTFF CHTTRCTT

NO REASONABLE OR RATIONAL JUROR WOULD HAVE ASSESSED SUCH A

SEVERE PUNISHMENT HAD THEY HEARD MITIGATING EVIDENCE.

17

GROUND SEVEN:

INEFFECTIVE ASSISTANCE OF COUNSEL

(FAILURE IN PERFORMANCE)

FACTS SUPPORTING GROUND SEVEN:

COUNSEL FAILED TO PRESERVE ERROR RE. EXHLBITNO. 54 (A TAPE). THE

DRIVER (ALFORD) OF THE OTHER VEHICLE TESTIFIED AS TO HER ACCOUNT

OF THE COLLISION WHICH RESULTED TN THE DEATH OF HER SISTER. ALSO.

AT THE PUNISHMENT PHASE. THE STATE INTRODUCED A TAPE RECORDING

(EXHIBIT NO. 54) OF HER ACCOUNT OF THE COLLISION. APPLICANT ASSERTS

THAT THE TAPE REVEALS THAT THIS WITNESS WAS LYING. HIS CONCERN

AND OBJECTION TO THIS TESTIMONY WAS MADE CLEAR BY HTM TO HTS

TRIAL COUNSEL. APPLICANT WAS CONVINCED THAT THE WITNESS SHOULD

BE CROSS-EXAMINED ON THIS ISSUE—I.E.. THAT ALFORD WAS CHANGING

HER ACCOUNT OF THE COLLISION. HIS COUNSEL WAVED HTM OFF. MAKING

NO EFFORT TO ATTACK THE CREDIBILITY OF THIS WITNESS. THIS WITNESS'S

TESTIMONY. WITH WHAT APPLICANT BELIEVES TO BE ITS CONTRADICTIONS.

WAS LEFT UNSCATHED. AND APPLICANT BELIEVES THE TAPE WOULD HELP

PROVE HISACTUAL INNOCENCE.

APPLICANT'S PERSONAL EFFORTS TO GAIN ACCESS TO THE TAPE WERE

EXERCISES IN FUTILITY. HOWEVER. THE HARRIS COUNTY OFFICIALS HAVE

TREATED APPLICANT'S UNDERSIGNED ATTORNEY WITH COURTESY. BUT

APPARENTLY WOULD NEED A COURT ORDER DIRECTED TO THE HARRIS

COUNTY DISTRICT CLERK TO PRODUCE THE TAPE. BY THIS APPLICATION.

18

APPLICANT NOW HAS AN ACTION BEFORE THE TRIAL COURT.

ACCORDINGLY. HE NOW ASKS THE TRIAL COURT AND THE TEXAS COURT OF

CRIMINAL APPEALS TO ORDER THE PRODUCTION OF THE EXHIBIT (EXHIBIT

NO. 54. A TAPE IN CAUSE NO. 923949) AS A PART OF APPLICANT'S HABEAS

ACTION.

19

GROUND EIGHT:

DENIAL OF DUE PROCESS OF LAW

(FAn.URE OF COUNSEL & COURT TO GIVE NOTICE RE. HABEAS RIGHTS)

FACTS SUPPORTING GROUND EIGHT:

APPLICANT RECEIVED NO NOTICE OR ADVICE OF ANY KIND FROM HIS

COUNSEL OR THE TRIAL COURT REGARDING HIS HABEAS CORPUS RIGHTS.

ALTHOUGH HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES

MARINE CORPS HE'S HAD NO LEGAL TRAINING TN THE LAW. AFTER HIS

CONVICTION AND FIRST ITER EFFORTS TO OVERTURN HIS CONVTCTTON, HE.

WAS n.T^EQUIPPED TO DEAL WITH HABEAS LAW. HAVING RECEIVED NO

ASSISTANCE OF ANY KIND FROM HIS COUNSEL OR THE JUDGE. HE WAS LEFT

TO FEND FOR HTMSELF IN TRYING TO PREPARE HIS PREVIOUS APPLICATIONS.

HE HAD TO COPE WITH VERY LIMITED ACCESS TO HIS UNIT'S LD3RARY. HAD

TO DEAL WITH OUTDATED MATERIALS. AND HAD NO ACCESS TO MODERN

TECHNOLOGY. AFTF.R TTF. HAD WORKED TEN HOURS A DAY. FIVE DAYS A

WEEK. THERE WAS LITTLE TIME OR ENERGY LEFT TO DEAL WITH

WRIT-LAW. HE. WAS SURROUNDED BY "PRETEND LAWYERS". OTHERS WHO

WERE INCARCERATED, OFFERING TO HELP FOR SOME KIND OF "FEE."

APPLICANT'S ATTEMPTS TO DEAL WITH PREPARATION OF HIS

APPLICATIONS HAVE BEEN INSUFFICIENT. ESPECIALLY WITH REGARD TO

HIS SECOND ATTEMPT WHICH WAS DISMISSED FOR NON-COMPLIANCE. THE

MERITS OF HIS CASE NOT HAVING BEEN CONSIDERED.

APPLICANT'S SECOND APPLICATION SPEAKS FOR ITSELF ON THIS

ISSUE. AS FT CLEARLY DEMONSTRATES THAT HE WAS UNABLE EVEN TO

20

NEGOTIATE THE REQUIREMENTS OF THE WRIT FORM. UNABLE TO FULLY

COMPREHEND THE INSTRUCTIONS. YET DOING THE BEST HE COULD WITH

HIS MEMORANDUM OF LAW.

FACT IS. THE ONLY WRIT "TOOLS" AVAILABLE TO HTM AT HIS TTNTT

WERE OUTDATED AND INCOMPLETE. BUT EVEN IF PERFECT. WOULD NOT BE

ADEQUATELY UNDERSTOOD AND IMPLEMENTED BYAPPLICANT.

HAD APPLICANT BEEN GIVEN SOME KIND OF NOTICE OR "HEADS UP" BY

HIS COUNSEL OR TRIAL COURT REGARDING THE NATURE, OR EVEN THE

AVAn.ARnjTY OF THE HABEAS LAW. HE COULD HAVE STARTED MUCH

EARLIER TRYING TO PREPARE FOR THAT JOURNEY. INCLUDING TRYING TO

SECURE FINANCES, AND THE PROBABILITY IS THAT HE WOULD HAVE BEEN

SUCCESSFUL AND WOULD NOT PRESENTLY BE INCARCERATED. IT IS A FACT.

OF WHICH THIS COURT HAS JUDICIAL KNOWLEDGE. THAT AN APPLICANT

HAS A BETTER CHANCE OF SUCCESS. ESPECIALLY WITH HIS FTRST

APPLICATION. WHEN HE'S HAD THE BENEFIT OF ADVICE, OR ASSISTANCE OF

SOME KIND. FROMA TRUE LEGAL COUNSEL.

APPLICANT WAS ILL-EQUIPPED TO NEGOTIATE THIS PROCESS

WITHOUT SOME KIND OF GUIDANCE OR ADVICE FROM HIS COUNSEL OR THE

COURT. (THE COURT'S STATISTICS - EXHTBTT 13-SUPPORT THIS)

21

GROUND NINE:

OUR WRIT OF HABEAS CORPUS LAW IS UNCONSTITUTIONAL

(SECTION 4(aWc). ARTICLE 11.07. TEX. CODE CRIM. PROC )

FACTS SUPPORTING GROUND NINE:

THE TEXAS LAW REGARDING SUBSEQUENT WRTT APPLICATIONS WAS

TOO STRINGENT. DIFFICULT. AND COMPLEX FOR APPLICANT TO

SUCCESSFULLY NEGOTIATE WITHOUT TRUE LEGAL COUNSEL. APPLICANT

PERSONALLY WANTED THE BENEFITS OF THTS LAW. AND HE STILL DOES

HE HAS BEENDENIED HIS RIGHT TO SEEK REDRESS VTA "THE GREAT WRTT OF

LIBERTY." (BLACKSTONFl. SECTION 4 (a)-(c). THOUGH WELL-TNTENDET^ TS

PROHIBITIVE.

APPLICANT KNOWS THAT MOST APPLICANTS "FLUNK" THIS LAW TTF

KNOWS THAT ARTICLE 11.07 HAS MANY PARTS. ALL SPEAKING LAWYER'S

LANGUAGE. HE PERSONALLY KHVQWS THAT THE INSTITUTIONAL DTVTSTON

OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE IS ILL-EQUIPPED WTTH

THE "TOOLS" NEEDED BY "INMATES" TO FULLY COMPREHEND. AND THEN

IMPLEMENT THIS TAW. THE "SUBSEQUENT-APPLICATION" RULE (THE

"ABUSE OF WRIT DOCTRINE") IS THE ESPECIALLY EGREGIOUS PART OF

TEXAS WRIT LAW. FURTHER. APPLICANT PERSONATLY KHVQWS THAT TT TS

MORE UNLIKELY THAN LIKELY THAT AN INCARCERATED PERSON WILL BE

SUCCESSFUL IN OBTAINING HIS LIBERTY BY WAY OF THIS LAW. APPLICANT

PERSONALLY FEELS. BECAUSE THE LAW ITSELF IMPELS HIM TO FEEL. THAT

HE IS IN FACT ENTITI.ED TO THE BENEFITS OF THTS LAW. AND THAT THIS IS

NOT MERELY WISHFUL THINKING. THE LAW. ITSELF. HAS CREATED THTS

22

EXPECTATION OF APPLICANT'S ENTITLEMENT TO THIS LAW.

APPLICANT IS ABLE TO SEE THAT THIS LAW REQUIRES ENUMERATED

PEOPLE TO DO ENUMERATED THINGS IN A CERTAIN WAY. NOT JUST LEAVING

THE PLAYERS TO USE THEIR PERSONAL JUDGMENTS. TN Fn.TNG HIS PRO SE

APPLICATIONS HE NEVER REALLY TTNUFRSTOOD WHAT ALL HE WAS

SUPPOSED TO DO. HE DIDN'T EVEN GET HIS FACTS IN THE

CORRECT PLACE IN HIS SECOND PRO SE APPLICATION: IT WAS DISMISSED

FOR "NON-COMPLIANCE." THIS PART OF OUR HABEAS LAW IS BEYOND

REACH OF THE AVERAGE "INMATE" WHO HAS NO TRUE LEGAL COUNSEL.

AND IS ALMOST BEYOND THE REACH OF TRUE LEGAL COUNSEL.

WHEN APPLICANT FINALLY FOUND OUT ABOUT THE LEGAL AVENUE HE

WOULD ATTEMPT TO USE (THE WRIT OF HABEAS CORPUS) IT PROVED TO BE

BEYOND HIS PERSONAL CAPACITY TO PROPERLY UTILIZE. HE IS INNOCENT

OF THE OFFENSE CHARGED. AND HAS MAINTAINED HIS INNOCENCE FROM

THE BEGINNING OF HIS CASE. HIS FREEDOM IS AT STAKE. HE HAS BEEN

HARMED BECAUSE THE PROCESS PROVIDED TO HTM IS SO COMPLEX.^ SO

DIFFICULT. FOR THE AVERAGE "INMATE" TO UNDERSTAND AND IMPLEMENT.

IT PROVED TO BE BEYOND HIS PERSONAL CAPABn TTTJES. PUTTING HIM IN

THE VAST MAJORITY OF PRO SE WRIT-APPLICANTS. (THE COURT'S

STATISTICS - EXHTBTT 13-SUPPORT THTS.)

ACCORDINGLY. HIS PREVIOUS APPLICATIONS SHOULD NOT BLOCK HIS

WAY INTO CONSIDERATION OF HIS PRESENT APPLICATION. HE SHOULD BE

ALLOWED TO "SIDE-STEP" THE "ABUSE OF WRIT DOCTRINE."

23

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT

RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be verified or it will be dismissed for non-compliance. For

verification purposes, an applicant is a person filing the appUcation on his or her own behalf. A

petitioner is a person filing the application on behalfof an applicant, for example, an applicant's

attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the Oath Before a Notary Public before a

notary public or the Inmate'sDeclaration without a notary public. If the inmate is represented by

a licensed attorney, the attorney may sign the Oath Before a Notary Public as petitionerand then

complete Petitioner's Information. A non-inmate applicant must sign the Oath Before a Notary

Public before a notary public unless he is represented by a licensed attorney, in which case the

attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the Oath Before a Notary Public

before a notary public and must also complete Petitioner's Information. An inmate petitioner

must sign either the Oath Before a Notary Public before a notary public or the Alnmate's

Declaration without a notary public and must also complete the appropriate Petitioner's

Information.

OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY OF ANDERSON

DANIEL JAMES SIXTA, being duly sworn, under oath says: I am the^plicaj])/

petitioner (circle one) in this action and know the contents of the above appUcation tor a wnt of

habeas corpus and, according to my belief, the fact£__tated in the application are true.

SUBSCRIBED AND SWORN TO BEFORE ME THIS oil DAY OF MfofPJO, 2014.

« '•« « e o... e « «, 9 . . . t lature ofNotary Public

Shauna L.Vesta! •

0

Notary Public. State of Texas '

My Commission Expires *

a «. » „—' 02 012017 *

••••••••• -........ o.....;

—- Notary Without Bortd

24

PETITIONER'S INFORMATION

Petitioner's printed name: ARDON MOORE

State bar number, if appUcable: 14390000

Address: P.O. Box 133183

Tyler. TX 75713-1383

Telephone: 903-593-1116

Fax: 903-590-1752

INMATE'S DECLARATION

_, am the applicant / petitioner (circle one) and

being presently incarcerated in , declare under penalty of

perjurythat, according to my belief, the facts statedin the above appUcation are true and correct.

Signed on 2014.

Signature of Applicant / Petitioner (circle one)

25

PETITIONER'S INFORMATION

Petitioner's printed name:

Address:

Telephone:

Fax:

Signed on , 2014.

Signature of Petitioner

26

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

WRIT NO: WR-60-547-03 (1st application)

WRIT NO: WR-60-547-09 (2nd application)

NEW WRTT NO:

EX PARTE

CAUSE NO. 923949-B

DANIEL JAMES SIXTA

HARRIS COUNTY, TEXAS

TDCJ-H) 1143232

MEMORANDUM OF LAW

IN SUPPORT OF APPLICATION

FOR WRIT OF HABEAS CORPUS

Ardon Moore

Attorney and Counselor at Law

P.O. Box 133183

Tyler, TX 75713

903-593-1116

Attorney for Applicant

CERTIFICATE OF COMPLIANCE

In compliance with TRAP 73.1(f) this is to certify that

according to the word count of the computer program used to

prepare this document the number of words in this document is

5528, not including appendices, exhibits, cover page, table of

contents, table of authorities, and certificate of compliance.

Ardon Moffre

Petitioner-Attorney4or Applicant,

Daniel James Sixta

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

WRIT NO: WR-60-547-03 (1st application)

WRIT NO: WR-60-547-09 (2nd application)

NEW WRIT NO:

EX PARTE

CAUSE NO. 923949-B

DANIEL JAMES SIXTA

HARRIS COUNTY, TEXAS

TDCJ-H) 1143232

INDEX

List of Authorities Page i-iv

Exhibits Page v-vi

Memo of Law:

Subjects Page l

Custody Page 1

Summary OfFactsPertaining To Offense AndTrial Page 1

Why Applicant ShouldBeAllowed "Another Bite Out OfThe Apple" Page 2

GROUND ONE: ACTUAL INNOCENCE-NEWLY DISCOVERED

EVIDENCE Page 3

(The NDE: The True Cause of the Motor Vehicle CoUision)

INDEX (CON'T)

GROUND TWO: ACTUAL INNOCENCE Page 6

("Intertwined" With Constitutional Error)

GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL Page 7

(Failure To Adequately Investigate Facts Of The Case)

GROUND FOUR: INEFFECTIVE ASSISTANCE OF COUNSEL Page 9

(Failure To Assert An Available Defense)

GROUND FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL Page 9

(Failure In Performance)

GROUND SIX: INEFFECTIVE ASSISTANCE OF COUNSEL

(Failure in Performance) Page 10

GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL

(Failure in Performance) Page 11

GROUND EIGHT: DENIAL OF DUE PROCESS OF LAW Page 13

(Denied Due Process By Failure Of Counsel And Court To Give Him

Any Notice Or Advice Regarding His Habeas Rights)

GROUND NINE: OUR WRIT OF HABEAS CORPUS LAW IS

UNCONSTITUTIONAL Page 16

(Sec. 4(a)-(c), Art. 11.07 Tex. Code Crim. Proc.)

ENCAPSULATION OFAPPLICANT'S CASE Page 19

CERTIFICATE OF COMPLIANCE Page 21

I

D

I

1

1

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

WRIT NO: WR-60-547-03 (1st application)

WRIT NO: WR-60-547-09 (2nd application)

NEW WRIT NO:

EX PARTE

CAUSE NO. 923949-B

DANffiL JAMES STXTA

HARRIS COUNTY, TEXAS

TDCJ-H) 1143232

LIST OF AUTHORITIES

Cases

Bounds v. Smith, 430 U.S. 817,821 (1977) Pg. 15

Burdine v. Johnson, 266 F. 3rd (5* Cir. 2001) Pg. 15

Butler v. State, 716 S.W. 2d 48, 54(Tex. Crim. App. 1986) Pg. 8

Coble v. State, 330 S. W. 3d 253, (Tex. Crim. App. 2010) Pg. 9

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,113 S. Crt. 2786 Pg. 8, 9

Exparte Biggins, 635 S.W. 2d 743 (Tex. Crim. App. 1982) Pg. 15

ExparteBrown, 158 S.W. 3d 449 (Tex. Crim. App. 2005) Pg. 16

ExparteDuffy, 607 S.W. 2d 507,514-15 (Tex. Crim. App. 1980) Pg. 7,13

ExparteElizondo, 947 S.W. 2d 202,205 (Tex. Crim. App. 1996) Pg. 3, 6

Ex parte Franklin, 72 S.W. 3rd 678 (Tex. Crim. App. 2002) Pg. 5

i

Cases (Con'f)

Exparte Graves, 70 S.W. 3d 103 (Tex. Crim. App. 2002) Pg. 15

Exparte Hernandez, 988 S.W. 2d 770(Tex. Crim. App. 1999) Pg. 13

ExparteHenderson, 384 S.W. 3d 833, (Tex. Crim. App. 2012) Pg. 5

Exparte Kerr, 64 S.W.3d 414,418 (Tex. Crim. App. 2002) Pg. 17

ExparteLemke, 13 S.W. 3rd 791 (Tex. Crim. App. 2000) Pg. 3

Exparte Menchaca, 864 S.W. 2d 128,132 (Tex. Crim. App. 1993) Pg. 12

ExparteMiles, (Tex. Crim. App. 2012) Pg. 4

ExparteMiner, 394 S.W.3d 502, 505-06(Tex. Crim. App. 2013) Pgs. 2, 7

ExparteMontgomery , 894 S.W. 324, (Tx. Crim. App. 1995) Pg. 17

ExparteNailor, 149 S.W. 3d 125 (Tex. Crim. App. 2004) Pg. 12

ExparteParra, No.AP-76-871 (Tex. Crim. App. Sept 18,2013) Pg. 7

Exparte Sanders, 588S.W. 2d 383 (Tex. Crim. App. 1979.... Pg. 15

ExparteScott, 190 S.W. 3d 672 (Tex. Crim. App. 2006) Pg. 13

Exparte Sledge, 391 S.W. 3d 104 (Tex. Crim. App. 2013) Pg. 6

Exparte Torres, 943 S.W. 2d 469 (Tex. Crim. App. 1997) Pg. 12

Exparte Wilborn, 785S.W. 2d 391,393 (Tex. Crim. App. 1999) Pg. 8

Hernandez v. State, 726 S.W. 2d 53,57 (Tex. Crim. App. 1986) Pgs. 7,12

Herrera v. Collins, 506 U.S. 390,113 S. Ct. 853 (1993) Pgs. 2, 3, 6

Jackson v. StateS77 S.W. 2d 768, 77-771 (Tex. Crim. App. 1994) Pg. 12

Kelly v. State, 824 S.W. 2d 568 (Tex. Crim. App.) Pg. 9

Kentucky Department OfCorrections v. Dumschat, 452 U.S. 458,101 S. Ct 2460 Pg. 17

Kentucky Department OfCorrections v. Thompson, 490 U.S. at 462 Pg. 17

Mempa v. Rhay, 389U.S. 128 (1967) Pg. 13

ii

Cases (Con'tt

Miles v. State, 359 S.W. 3d 647 (Tex. Crim.App. 2012) Pg. 7

Miller v. Dreke 420 F. 3d356 (5th Cir. 2005) Pg. n

Murray v. Carrier, 477 U.S. 478, 496 (1986) Pg. 12

Padilla v. Kentucky, 130 S. Ct 1473; 176 L. Ed. 2d 284 (2010) Pgs. 3,14

Schlup v. Delo, 513 U.S. 298,115 S. Ct. 851 (1995) Pgs. 2, 6

Sparkman v. State, 580 S.W. 2d 358,360 (Tex. Crim. App. 1979) Pg. 11

Strickland v. Washington, 466 U.S. 668, (1984) Pgs. 7,12,13,14

Thaddeus-Xv. Blatter, 15 F.3"1378,391 (6th Cir. 1999) Pg. 15

United States v. Cronic, 466 U.S. 648 (1984) Pg. 7

Statutes

Article 11.07, Tex. Code Crim. Proc pgs. 12,13,17,19

Article 11.07, Sec. I Tex. Code Crim. Proc Pg. 17

Article 11.07, Sec. 4... Tex. Code Crim. Proc Pgs. 2, 6

Article 11.07, Sec. 4(a) Tex. Code Crim. Proc Pg. 17

Article 11.07, Sec. 4(a>(c) Tex. Code Crim. Proc Pg. 16 19

Article 11.07, Sec. 4(a)(1) Tex. Code Crim. Proc Pgs. 2,3,6,7

Article11.07, Sec. 4(a)(2) Tex. Code Crim. Proc Pgs. 2, 7

Article 11.073, Tex. Code Crim. Proc Pgs. 3, 5

Art. 37.02, Sec. 3, Tex. Code Crim. Proc Pg. H

Rule 702, 26 TEX. R. Evid Pgs. 8, 9

28 U.S.C. Sec. 2254 pg. 13

Tex. CONST., Article I, Sec. 10 pgs. 5, 7,17

Tex. CONST., ArticleI, Sec 19 pg. 7

111

Statutes fCon't)

Tex. Rules App. Proc. 25.2 Pg. 14

Tex. Rules App. Proc. 48.4 Pg-14

U.S. CONST., amends. V VI, XIV Pgs. 13,15

U.S. CONST., amends. V, XIV Pg. 17

U.S. CONST., amend VI Pg. 7,12

U.S. CONST., amends. VI, XIV Pg. 5

U.S. CONST., amends XTV Pg. 7

IV

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

WRIT NO: WR-60-547-03 (1st application)

WRIT NO: WR-60-547-09 (2nd application)

NEW WRIT NO:

EXPARTE

CAUSE NO. 923949-B

DANIEL JAMES SIXTA

HARRIS COUNTY, TEXAS

TDCJ-ID 1143232

EXHIBITS ATTACHED

The Indictment EXHIBIT ONE

Clerk's Index (Judgment/Sentence 12-13-02) EXHIBIT TWO

Notice ofDenial ofFirst Application EXHIBIT THREE

Notice ofDismissal ofSecond Application EXHIBIT THREE

Counsel's Court Ordered Affidavit EXHIBIT FOUR

State's Opening Statement EXHIBIT FIVE

State's Answer toFirst Application EXHIBIT SIX

Affidavit ofApplicant's Sister EXHIBIT SEVEN

Affidavit ofApplicant, Daniel Sixta EXHIBIT EIGHT

The Cope Report EXHIBIT NINE

Testimony ofAlford Regarding the Collision EXHIBIT TEN

Judge's Comments re. Applicant's Suicide Attempt EXHIBIT ELEVEN

Record Showing Failure toPresent Mitigating Evidence EXHIBIT TWELVE

The Court's Habeas Statistics EXHTBTT THIRTEEN

v

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

WRTT NO: WR-60-547-03 (1st application)

WRIT NO: WR-60-547-09 (2nd application)

NEW WRIT NO:

EX PARTE

CAUSE NO. 923949-B

DANIEL JAMES SLXTA

HARRIS COUNTY, TEXAS

TDCJ-H) 1143232

MEMORANDUM OF LAW

IN SUPPORT OF APPLICATION FOR WRTT OF HABEAS CORPUS

Custody

Applicant is illegally restrained of his liberty in the Texas Department Of Criminal

Justice, Institutional Division, presently incarcerated at Coffield Unit, Tennessee Colony,

Texas, by virtue of a judgment of the351st Judicial District Court of Harris County, Texas.

Summary OfFacts Pertaining To Offense And Trial

On an indictment returned in 2002 (Intoxication Manslaughter in Cause No.

923949,351st Judicial District Court of Harris County, Texas) Applicant was jury tried and

found guilty. Sentence: 20 yrs., $5000 fine. His appeal in 2003 and his PDR in 2004 failed

as did his federal activity. His first Application (pro se), was denied in 2006 withoutwritten

order. His second application, filed in 2011, again pro se, was dismissed without written

order in 2012 for non-compliance. (Facts not put on prescribed form.)

Why Applicant Should BeAllowed "Another Bite Out OfThe Apple"

(1)

This, Applicant's subsequent application (his first having been denied without

written order and his second dismissed for noncompliance) contains sufficient specific

facts establishing that the current claims and issues have not been and could not have

been presented previously in an original application or in a previously considered

application filed under this article because the factual or legal basis for the claim was

unavailable on the date the applicant filed his previous application. (Article 11.07,

Section 4(a)(1) Tex. Code Crim. Proc.) Further, by preponderance of the evidence, but

for a violation of the United States Constitution no rational juror could have found

Applicant guilty beyond a reasonable doubt. (Art. 11.07, Sec. 4(a)(2) Tex. Code Crim.

Proc.) The remedies provided by Sec. 4 are not mutually exclusive. In Ex parte Milner,

394 S.W. 3rd 502 (Tex. Crim. App. 2013) this court held:

"This Court has recognized that even if an application does not

meet the requirements of Section 4(a)(1), a subsequent application

for writ of habeas corpus may overcome the procedural bar of art.

11.07, Sec 4, if an applicant can show a constitutional violation that

fulfills the requirements of Sec. 4 (a)(2)."

Applicant's actual innocence is based on his claim of newly discovered evidence.

Herrera v. Collins, 506 U.S. 390 (1993). His actual innocence is also a procedural claim tied

to a showing of constitutional error at trial. Schlup v. Delo, 513 U.S. 298, 314 (1995). He

was denied due process of law.

(2)

Further, Applicant shows some new law which was unavailable to him when he filed

his first Application. Article 11.073, Tex. Code Crim. Proc, pertaining to "relevant

scientific evidence" was not effective until September 1, 2013. This law appears to elevate

the status of scientific evidence in the habeas law, as it was enacted to specify that evidence

used to contradict evidence presented at trial is a claim or issue that can affect court

consideration of an application for a writ of habeas corpus.

Also, Tex. Code Crim. Proc. Art. 11.07, Sec. 4 (a) (1) is satisfied in that Padilla v.

Kentucky, 130 S. Ct 1473; 176 L. Ed. 2d 284 (2010) was unavailable to Applicant on the

date he filed his previous application. Padilla shows that the collateral consequences of a

conviction are inside the scope of the representation by trial counsel, and Applicant submits

that the substance of that case involves more than a trial counsel's failure to give the

accused a heads-up regarding deportation, and, that Applicant is entitled to the benefits of

Padilla without regard to whether the case is retroactive (This will be more fully

developed in this memorandum of law.)

GROUND ONE: ACTUAL INNOCENCE—NEWLY DISCOVERED

EVIDENCE

(The NDE: The True Cause Of The MotorVehicle Collision)

Applicant is actually innocent of the crime of which he was convicted. A claim of

actual innocence is cognizable in a post-conviction habeas corpus proceeding. Ex parte

Elizondo 947 S.W. 2d 202 (Tex. Crim. App. 1996); Exparte Lemke, 13 S. W. 3rd 791 (Tex.

Crim. App. 2000).

Applicant's claim of actual innocence is based upon newly discovered evidence that

was neither introduced at trial nor available to Applicant to introduce at trial. Herrera v.

Collins, 506 U.S. 390, 113 S. Ct 853 (1993). The newly discovered evidence (evidence

discovered by Applicant) consisted of the true details, analysis, and reconstruction of the

motor vehicle collision between the vehicle Applicant was driving and another vehicle, the

collision resulting in the death of the passenger in the other vehicle.

The record supports that the factual basis for this claim was unavailable to

Applicant and not ascertainable by him through the exercise of reasonable diligence on or

before the date Applicant filed his first Application. Ex parte Miles, (Tex. Crim. App.

2012).

Applicant urges the courts to review the credentials of Applicant's expert, as well as

the report itself, each attached as exhibits, with particular attention to the fifth, sixth and

seventh pages of the report: They show, among other things, that Applicant was traveling

between 45 - 53 mph before braking, that he definitely braked before the coUision, that the

police investigation was incomplete, that the driver of the other vehicle failed to yield right

ofway, and failed to keep a proper lookout. The report makes clear that, in theopinion of

the expert, the jury trial in this case "without an Accident Reconstruction professional is

highly unfair and would be almost impossible for any accused driver to receive a fair trial."

No reasonable juror would have found Applicant guilty as charged if his counsel

had secured a proper collision expert for his defense, had Applicant been able to present to

the jury the testimony of the expert his family member was finally able to obtain for him.

This begs the question: Does our law defeat the accused who is indigent, who is

financially unable to secure a proper defense, while it rewards the defendant who is

financially better off?

Applicant submits that the evidence here presented is clear and convincing that no

reasonable juror would have convicted him of Intoxication Manslaughter in light of this

newly discovered evidence. Ex parte Henderson, 384 S.W. 3d 833, (Tex. Crim. App. 2012)

Applicant's right to a fair trial, as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution,

was violated because his conviction was based only on the State's version of the collision,

Applicant having been deprived of his own expert evidence. His conviction was thereby

assured.

Senate Bill 344 out of the 83rd Texas Legislature (now Art. 11.073, Tex. Code Crim.

Proc.) speaks to the right of courts to grant relief via writ-applications if the relevant

scientific evidence is currently available but was not available at the time of the conviction

because the evidence was not ascertainable through reasonable diligence at the time of

trial.

In Applicant's case scientific evidence needed to combat the State's version of the

cause of the collision was out there, discoverable by Applicant's counsel had he made the

effort to obtain it.

Applicant was denied his vital defensive evidence, thus denied his constitutional

right to a fair trial and to due process of law. No reasonable juror would have convicted

Applicant had they heard his newly discovered evidence.

Applicant has shown, through clear and convincing evidence, that the newly

discovered and newly available evidence, especially when superimposed over the failure of

his counsel to provide him with the defense needed, creates a doubt in the efficacy of the

jury's verdict and would probably change the verdict on retrial See Ex parte Franklin, 72

S.W. 3rd 678 (Tex. Crim. App. 2002)

In Exparte Elizondo, 947 S.W. 2d 202 (Tex. Crim. App. 1996) the Court said its job

was "to decide whether the newly discovered evidence would have convinced the jury of

applicant's innocence" Applicant submits that his newly discovered evidence would have

accomplished this.

In ExparteSledge, 391 S.W. 3d 104 (Tex. Crim. App. 2013) a good review was given

of the/ways to try to escape the "abuse of writ doctrine." However, Art. 11.07, Sec. 4 and

case law should be expanded to hold as follows: "New Law; New Facts; Innocence; Having

Been Denied Your Defense; Having Been Denied Your Mitigating Evidence; And Not Being

Provided With Any True Legal Assistance Regarding Your Personal Efforts To File An

Acceptable First Application."

To admonish an attorney at law that if he or she doesn't get it right the first time, he

or she is essentially finished, is one thing—but to tell that to the typical untrained "inmate"

is a travesty, besmirching the opinion of the great Sir William Blackstone who referred to

the habeas process as "•The Great Writ OfLiberty.n

GROUND TWO: ACTUAL INNOCENSE

("Intertwined" With Constitutional Error)

A claim of actual innocence is cognizable in a post-conviction habeas corpus

proceeding. Exparte Elizondo, 947 S.W. 2d 202, 205 (Tex. Crim. App. 1996). Applicant is

not confined to only one vehiclewhich can be connected to his cognizable ground of actual

innocence, as addressed by Applicant, supra. The two types of actual innocence claims that

may be raised in a collateral attack on a conviction are shown in: Schlup v. Delo, 513 U.S.

298,115 S. Ct. 851 (1995) and Herrera v. Collins, 506 U.S. 390,113 S. Ct. 853 (1993).

As stated in the first ground, the Court has recognized that even if an application

does not meet the requirements of Sec. 4 (a) (1), a subsequent application may overcome

the procedural bar of Art. 11.07, Sec. 4 if the applicant can show a constitutional violation

that fulfills the requirements of Sec. 4 (a) (2). The constitutional violation claim must be

accompanied by a prima facie claim of actual innocence Ex parte Milner, 394 S.W.3d 502,

505-06 (Tex. Crim. App. 2013) These two species of actual innocence claims, as addressed

in Miles v. State, 359 S.W. 3d 647 (Tex. Crim. App. 2012) are not held to be mutually

exclusive, and are not required to be urged one at a time in separate applications.

Applicant was denied his vital defense, thus denied his constitutional right to due

process of law.

GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL

(Failure To Adequately Investigate Facts Of The Case)

An essential element of a fair trial is effective assistance of counsel. United States

v. Cronic, 466 U.S. 648 (1984). The right of an accused to the effective assistance of counsel

comes from four sources: The Sixth Amendment, the Due Process Clause of the

Fourteenth Amendment, the "right to be heard" provision of Art. I, Sec. 10 of the Texas

Constitution, and the Due Course of Law provision of Art. I, Sec. 19 of the Texas

Constitution. Exparte Duffy, 607 S.W. 2d 507,514-15 (Tex. Crim. App. 1980).

Always there is the Supreme Court's 2-part test for determining whether counsel is

ineffective: (1) Counsel committed an error or omission not justifiable as reasonable trial

strategy; and (2) the error prejudiced the defendant. Strickland v. Washington, 466 U.S.

668, (1984); Hernandez v. State, 726 S.W. 2d 53, 57 (Tex. Crim. App. 1986) As required by

Strickland Applicant has shown by a preponderance ofthe evidence thattheharm resulting

from counsel's deficiency undermines the confidence in the trial's outcome ExparteParra,

No. AP-76,871 (Tex. Crim. App. Sept 18,2013)

The charge of Intoxication Manslaughter involved a motor vehicle collision between

7

the vehicle Applicant was driving and a vehicle in which the passenger was killed. The

manner, the method, the details of the collision were at the very core of the State's case.

This cannot be disputed by the State, as the record clearly shows that both the court and

counsel deemed it essential to have the testimony of an expert for Applicant's defense.

The affidavit required of the trial counsel reveals the truth of Applicant's claims.

The attorney did nothing of any significance to investigate the facts regarding the true

nature of the collision. He did hot seek out and interview witnesses. The fact of the

absence of defense witnesses at Applicant's trial should help provethis cognizable ground.

It is the responsibility of defense counsel to promptly investigate the circumstances

of the case He should make an independent investigation of the facts of the case, not

relying simple on his client's version of the facts. Butler v. State, 716 S.W. 2d 48, 54 (Tex.

Crim. App. 1986). The duty includes the responsibility to seekout and interview potential

witnesses. Exparte Wilborn, 785 S.W. 2d 391,393 (Tex. Crim. App. 1999)

The purpose of this constitutional mandate to investigate the facts of the case is to

determine whether a defense is available to the accused. Butler v. State, 716 S.W. 2d 48, 54,

(Tex. Crim. App. 1986)

Further, Applicant's attorney failed to use Rule 702,26 TEX. R. Evid.: He made no

request for Daubert/Kelly hearing. Rule 702 reads:

"If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the form

of an opinion or otherwise."

See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Crt. 2786 and

Kelly v. State, 824 S.W. 2d 568 (Tex. Crim. App.). As shown by Coble v. State, 330 S. W. 3d

253, (Tex. Crim. App. 2010) the trial judges must act as a true "gatekeeper" when

addressing the reliability and relevance of expert testimony, and this "gatekeeping" role

under Daubert applies the same reliability standard to all "scientific," "technical," or

"other specialized" matters within the scope of Rule 702.

The testimony of the Sheriffs Department employee is lame when compared to the

credentials and the report of the true expert finally retained for Applicant, thanks to his

family member.

GROUND FOUR

INEFFECTIVE ASSISTANCE OF COUNSEL

(Failure To Assert An Available Defense)

Applicant's counsel failed to assert an available defense. Counsel failed to be ready

to combat the State's case against Applicant. He failed to use the funds provided by the

court for a defense expert's reconstruction of the collision, and to have the witness to testify

on behalf of Applicant. He failed to move for additional funds.

To couch the problem another way: A defense was out there, waiting, available

Applicant's counsel simply failed to assert it for Applicant. Consequently, Applicant was

convicted and sentenced to twenty years with a $5,000 fine. No reasonable or rational juror

would have convicted him had the defense been presented.

GROUND FIVE

INEFFECTIVE ASSISTANCE OF COUNSEL

(Failure In Performance)

Counsel pressed Applicant to testify at the punishment phase of the trial, disregarding

his physical and mental condition. Applicant's attempt to kill himself the night before his

punishment hearing is clearly established by the record. Not only was it unconstitutional,

it was unconscionable to press him to trial at that time The trial judge expressed some

understanding, but hardly any sympathy, for Applicant's traumatic situation, stating, "Mr.

Sixta, I'm not—what ever happened last night, obviously, I'm glad you're alive and all that

stuff..." The judge then admonished Applicant to keep his mouth shut about the incident.

(See EXHIBIT ELEVEN)

Applicant's counsel did nothing, save going along with whatever the judge wanted.

The record is clear that no one in the courtroom sought to protect Applicant's

constitutional rights regarding the matter.

Injured and traumatized, Applicant was pressed on to testify, the net result being

his severe sentence, his being denied the right to a fair trial. He did not receive that

constitutionally protected quality of punishment hearing to which he was entitled, and this

habeas process, albeit already previously attempted by Applicant, is the remedy by which

he must now seek his justice.

GROUND SIX

INEFFECTIVE ASSISTANCE OF COUNSEL

(Failure In Performance)

Counselfailed to present mitigating evidence at thepunishmentphase ofthe trial The

State hammered Applicant at the punishment phase of his trial. Oddly, and

unconstitutionally, Applicant's counsel asked only nine questions which might, possibly,

relate to mitigating evidence. Either counsel didn't know of this duty, or he knew about it

and ignored it, or he felt that Applicant was in no condition, in view of his attempted

suicide, to undergo a proper showing of mitigating evidence. In either case, the net result

was the same—the denial of Applicant's right to due process of law—his right to a fair

punishment hearing.

There was no anecdotal evidence regarding Applicant's good qualities, no showing

of anything in his life which might have caused his behavior, no attempt to humanize him,

no showing of his accomplishments or his good qualities. His long list of accomplishments

10

and good deeds were ignored by his counsel. (See EXHIBIT TWELVE)

Art. 37.02, Sec 3, Tex. Code Crim. Proc, is not that difficult to understand. That

counsels failure in this regard constituted ineffective assistance of counsel is shown by

Miller v. Dreke 420 F. 3d356 (5th Cir. 2005)

During the punishment phase the jury is concerned "with evaluating a defendant's

background and character independent of the commission of the crime on trial."

Sparkman v. State, 580 S.W. 2d 358, 360 (Tex. Crim. App. 1979). The Court has observed

that, in assessing what is relevant to sentencing, the important question is "what is helpful

to the jury in determining the appropriate sentence for a particular defendant in a

particular case."

This fact should be considered beyond dispute: HAD APPLICANT'S COUNSEL

PRESENTED AVAILABLE MITIGATING EVIDENCE TO THE JURY APPLICANT'S

SENTENCE WOULD NOT HAVE BEEN AS SEVERE.

GROUND SEVEN

INEFFECTIVE ASSISTANCE OF COUSEL

(Failure in Performance)

Counsel failed to preserve error re. Exhibit No. 54 (a tape). While it is true the State

introduced Exhibit No. 54 (a tape) into evidence, Applicant submits it shows this State's

witness (Afford) was lying. Applicant called this to the attention of his trial counsel, who

shrugged the matter off, telling Applicant the matter would be addressed in another way,

such as an appeal. It never happened.

Consequently, Applicant was left alone to challenge this issue, failing in his pro se

attempt to gain possession of the tape from the authorities in the county of his conviction.

All Applicants' efforts to gain possession of the tape from the Harris County

officials failed. He was engaged in an arduous task, one which should have been handled

11

by his counsel at the trial and appellate levels.

By this writ-application, Applicant now has the matter pending before the district

court of his conviction, and, before the Texas Court Of Criminal Appeals. The Harris

County District Clerk, or others who have possession of this exhibit, should be ordered to

produce it for the use and benefit of Applicant and inspection by the courts.

Further authorities to support claim of Ineffective Assistance OfCounsel

The effectiveness of counsel's assistance is graded by the entire body of his

performance. Ex parte Menchaca, 864 S.W. 2d 128,132 (Tex. Crim. App. 1993)

The representation of his counsel fell below any objective standard of

reasonableness Strickland v. Washington, 466 U.S. 668 (1984); Jackson v. State 877 S.W. 2d

768, 77-771 (Tex. Crim. App. 1994)

It is not necessary to show a bundle of errors in order to show ineffectiveness of

counsel, as it can be shown "even by an isolated error of counsel if that error is sufficiently

egregious and prejudicial." Murray v. Carrier, 411 U.S. 478, 496 (1986)

We know that this area of law {Ineffective Assistance of Counsel) constitutes the

largest number of claims raised on art. 11.07 habeas. These claims will always be

considered by the Court, with the narrow exception set out in Ex parte Nailor, 149 S.W. 3d

125 (Tex. Crim. App. 2004) and Exparte Torres, 943 S.W. 2d 469 (Tex. Crim. App. 1997).

The courts will of course use the standard set out in Strickland v. Washington, 466

U.S. 668 (1984). The Court adopted the Strickland standard in Hernandez v State, 726 S.W.

2d 53, (Tex. Crim. App.1986). Strickland held, in part:

"First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious

12

that counsel was not functioning as "counsel" guaranteed by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the defendant of a fair

trial, a trial whose result was reliable"

A defendant in a criminal case in Texas is entitled to reasonably effective assistance

of counsel. Exparte Duffy, 607 S.W. 2d 507 (Tex. Crim. App. 1980). To get habeas relief

for ineffective assistance of counsel under Strickland an applicant must show that his

counsel's performance was deficient and that there is a "reasonable probability," one

sufficient to undermine confidence in the result, that the outcome would have been

different but for counsel's deficient performance. Ex parte Scott, 190 S.W. 3d 672 (Tex.

Crim. App. 2006).

The right to counsel is required at each stage of a criminal proceeding where the

substantial rights of the accused are affected. Mempa v. Rhay, 389 U.S. 128 (1967). And,

this right to counsel (as in Applicant's case) applies to the punishment phase as well as to

the guilt-innocence phase of the trial. Ex parte Hernandez, 988 S.W. 2d 770 (Tex. Crim.

App. 1999).

GROUND EIGHT: DENIAL OF DUE PROCESS OF LAW

(Denied Due Process By Failure Of Counsel And Court To Give Him Any

Notice Or Advice Regarding His Habeas Rights)

Applicant urges that the availability of habeas corpus, state and federal (Tex. Code

Crim. Proc. 11.07 and 28 U.S.C. Sec. 2254) was a collateral consequence of his conviction,

protected by the Fifth, Sixth and Fourteenth Amendments, and that it was within the scope

of the duties of his trial and appellate attorneys, and the judge, to give to Applicant at least

minimal notice of the availability of these valuable post-conviction rights, and that this

13

failing by counsel and court deprived Applicant of his right to effective assistance ofcounsel

and to due process and equal protection ofthe law.

Applicant submits that Padilla, while dealing with deportation, gives the Court

guidance in Applicant's case, as it shows:

(1) The Court does not make a distinction between direct and collateral

consequences: "We, however, have never, applied a distinction between direct

and collateral consequences to define the scope of constitutionally, 'reasonable

professional assistance' required under Strickland.n {Strickland v. Washington,

466 U.S. 668 (1984)

(2) Padilla is the first case in which the Supreme Court applied the rule in Strickland

to the failure of counsel to advise the defendant regarding a collateral

consequence of his conviction.

(3) The Court held counsel to be ineffective in failing to warn the defendant of a

collateral consequence of his conviction. (His deportation)

(4) The Court did not limit the applicability of its decision to misadvise regarding

the collateral consequences of a conviction.

(5) The case says, Applicant submits, that it's holding is retroactive. However, later

case law has held otherwise. Retroactive or not, Applicant urges that the

substance of the case applies to his case.

Applicant should have been given some heads-up, some notice, regarding his habeas

rights, akin to that notice given to defendants regarding their right to appeal (Tex. Rules

App. Proc. 25.2) and their right to file a pro se petition for discretionary review. (Tex.

Rules App. Proc. 48.4) The following is offered in further support of Applicant's position:

14

(A)We know that the issues presented via the habeas process are not those

presented at the first level of direct review where the appeal entails adjudication

on the merits. We do not ordinarily deal with "first-level" rights. To the

contrary, issues which were raised or should have been raised on direct appeal

look to be barred at the habeas level.

(B) Yet, we know that denial of counsel at any critical state of the proceeding entitles

the writ-applicantto relief. Exparte Sanders, 588 S.W. 2d 383 (Tex. Crim. App.

1979) (A motion to revoke probation)

(C)We know that denial of counsel may be constructive, as with sleeping lawyers in

Burdine v. Johnson, 266 F. 3rd (5th Cir. 2001)

(D)We know that states have "affirmative obligations to assure all prisoners

meaningful access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977) See

also Thaddeus -Xv. Blatter, 15 F.3"1 378, 391 (6th Cir. 1999)

(E)We know that the right to a real lawyer attaches even to the process of pleading

guilty. Ex parte Biggins, 635 S.W. 2d 743 (Tex. Crim. App. 1982)

Applicant was denied any notice or advice from his lawyers or the judge regarding

his post-conviction habeas corpus rights. While he believes that Ex parte Graves, 70 S.W.

3d 103 (Tex. Crim. App. 2002) would seriously challenge a claim of denial of counsel, he

nevertheless urges that the authorities submitted, when considered in their totality, support

his claim that he has been denied effective assistance of counsel and due process and equal

protection ofthe law. (U.S. CONST, amends. V, VI, XTV)

Applicant has chosen to present the broader, and perhaps more profound, ground

ofDenial OfDue Process OfLaw rather than merely attacking counsel.

15

The attached copy of the statistics (EXHIBIT THIRTEEN) compiled by this Court,

showing the numbers of writ applications filed, together with other interesting facts, is

revealing. The volume of junk applications filed each year without the assistance of real

counsel undoubtedly presents an unnecessary drain on the resources of the trial courts, the

Clerk of this Court, the Texas State Law Library, and this Honorable Court.

Any doubt regarding what notice or advice his counsel or the court did, or did not

give to Applicant regarding his habeas rights can be resolved by Exparte Brown, 158 S.W.

3d 449 (Tex. Crim. App. 2005) which demonstrates an exception in which a habeas

applicant may raise his claims for the first time by writ of habeas corpus, with the case

remanded to the trial court in order to expand the record (In Applicant's case it cannot be

/

presumedthat he was given some kind of notice regarding his habeas rights - i.e., as to the

trial records themselves there should be nopresumption of regularity in this case.)

Requiring that the convicted person be given notice, or assisted in some way, with

regard to the challenging habeas world would serve not only to help secure the right to due

process of law, but would strengthen and streamline this post-conviction process to the

benefit of all involved.

The filing of an Application for a writ of habeas corpus after a conviction is an

occurrence which is as likely as unlikely to happen: It is in reality a "collateral

consequence" of a conviction.

GROUND NINE: OUR WRIT OF HABEAS CORPUS LAW IS

UNCONSTITUTIONAL

(Section 4 (a)-(c), Art. 11.07 Tex. Code Crim. Proc)

Section 4 (a)-(c), Art. 11.07, Tex. Code Crim. Proc. is unconstitutional Having

many moving parts, speaking lawyer's language, it is too complicated for the average

"inmate" to negotiate.

16

By way of review, prior to the adoption of the Habeas Corpus Reform Act of 1995

there was no statute restricting the filing of subsequent applications. The purpose of the

Act was to fulfill the Texas Constitutional mandate requiring a speedy and effective habeas

corpus remedy by limiting the availability of subsequent applications and encouraging all-

inclusive initial applications. ExparteKerr, 64 S.W. 3d 414, 418 (Tex. Crim. App. 2002).

A floodgate was opened, through which all manner of documents would pass, the

applicants encouraged to throw in "everything but the kitchen sink", yet risking penalties

if too many "kitchen sinks" were thrown in.

The present habeas law, as constructed and construed, violates Applicant's right to

due process of law, to equal protection of the laws, and to due course of law. U.S. CONST.,

amends. V, XIV, Tex. CONST. Art. I, Sec. 10. Applicant's interest at issue is more than an

unrealistic wish. As required in Kentucky Department Of Corrections v. Dumschat, 452 U.S.

458,101 S. Ct. 2460 the interest amounts to more than a "unilateral" hope

Article 11.07 has created "an expectation or entitlement" as referred to in Exparte

Montgomery, 894 S.W. 324, (Tx. Crim. App. 1995). This is so because the statute places

"substantive limitations on official discretion" to deny the particularinterest created by the

statute. Kentucky Department Of Corrections v. Thompson, 490U.S. at 462, as shown by Ex

parte Montgomery, with the case also making this distinction: Unfettered discretion shown

by an absence of standards or mandatory prerequisites does not give rise to an entitlement.

Right off, from the start, Article 11.07 announces:

"Sec I. This article establishes the procedure for an Application

For writ of habeas corpus in which the Applicant seeks relief from

a felony judgment imposing a penalty other than death".

The statute hardly gives anyone unfettered discretion. It proceeds to exact duties

from the Applicant, the clerk of the court, the attorney representing the state, the

17

convicting court, the court appointed attorney or magistrate, the reporter, the state itself.

All this before we have even reached Sec. 4(a), the enemy of subsequent writ applications.

Applicants are providedwith a writ form which at first glance might look easy. And

that is the beginning of an applicant's road to failure. This statute, together with the writ

form provided to Applicant, created Applicant's expectation of entitlement. He was

entitled to the benefits of the habeas law. He has maintained his innocence. His freedom

was at stake He relied on the only legal avenueleft open for him. Yet, he was ill equipped

to deal with the habeas law and was destined for certain failure. Even if he successfully

placed his "facts" where they were supposed to be on the form, even if he had done a little

better job on his Application in its entirety, he was destined not to succeed. He had no

lawyer for his first two Applications. THE COURT'S OWN STATISTICS MAKE CLEAR

THAT THE ODDS WERE AGAINST HTM.

Scores of Applicant's attempt to take the habeas trip without counsel. The belief

that they have a fair chance at success is based upon a legal fiction. The writ of habeas

corpus should be "The Great Writ Of Liberty" as envisioned by Blackstone. In his biennial

address to the 83rd Texas Legislature, Texas Supreme Court Chief Justice Wallace B.

Jefferson asked lawmakers to establish a special commission to investigate wrongful

convictions. His message was clear: That public faith in our legal system is being under-

minded by wrongful convictions.

18

Encapsulation OfApplicant's Case

At trial Applicant, who was actually innocent, and indigent, received two fatal shots

to his right to a fair trial, to due process of law, to due course of law, to equal protection of

the law: He was denied a defense which would have resulted in his acquittal, and, having

been convicted, he was denied mitigating evidence which would have lessened his

punishment. In short, he was denied effective assistance ofcounsel by the several failings of

counsel.

After trial, his first tier efforts to secure his rights to a fair trial failed, and he then

found himself alone to face the post-conviction writ-world. He was untrained in the law,

and had been given no warning, advice, or "heads-up" by his counsel or by the trial court.

Further, he asserts that the "abuse of writ doctrine," Section 4 (a)-(c), Art. 11.07,

Tex. Code Crim. Proc. is unconstitutional.

However, it all falls on deaf ears unless Applicant shows himself entitled to get

another "bite out of the apple" In his effort to accomplish this tough, prohibitive,

"herculean", task he has urged (1) his actual innocence with his newly discovered evidence,

and, (2) his actual innocence "intertwined with Constitutional errors.'''' (3) Also, he shows

new laws.

Article 11.073, Tex. Code Crim. Proc, effective September 1, 2013, dealing with

"relevant scientific evidence" is already being referred to by some as the "junk science law."

Applicant asserts that this new law, at the very least, elevates, lends credibility, to his claim

of newly discovered evidence.

Padilla assists Applicant, as it emphasizes the continuing duties of trial counsel to

give the convicted person some warning regarding the collateral consequences of the

conviction.

19

introduced to the "Writ-World" and it is likely that he or she will have a serious

confrontation with it

Respectfully Submitted, This Concludes Applicant's Memorandum OfLaw

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT

ALL THAT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

S£4%rvt-

ARDON MO

Attorney For Applicant

SBOT Number: 14390000

Address: P. O. Box 133183

Tyler, Texas 75713-3183

Telephone: (903) 593-1116

Fax: (903)590-1752

DANIEL<©2foES SIXTA, Applican

20

CERTIFICATE OF COMPLIANCE

In compliance with TRAP 73.1(f) this is to certify that

according to the word count of the computer program used to

prepare this document the number of words in this document is

5528, not including appendices, exhibits, cover page, table of

contents, table of authorities, and certificate of compliance.

sz^tjiyy^' /s-**-/? „,

Ardon Moore

Petitioner-Attorney for Applicant,

Daniel James Sixta

21

EXHJBTONE

\

™^v^

THE STATE OF TEXAS D.A.LOGNUMBERr»<S!»3tS 0 &&?*/(

VS. .' . CJ1S TRACKING NO.:9D32899406-A001

DANIEL JAMES.SIXTA SPN. 00817067 BY: MDt DA NO: 066146600

5903 CAPE HAlfrERAS g^f DOB. WM 9-9-60 AGENCY:HCSO

;HOUSTON, TEXAS 7704Q,; DATE PREPARED- 9-10-02 O/R NO: 0202213280

ARREST DATE: 04-04-02

NCIC CODE: 0901 33 RELATED CASES.

FELONY CHARGE: B: INTOXI

INTOHCATipNJ

ItfTON MANSLAUGHTER

CAUSE NO:"9«9691?— BAIL: $NQJb6ND J2-£~£^

HARRIS COUNTY DISTRICT COURT NO: 351ST PRIOR CAUSE NO:

FJRST SETTING DATE:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Hairis County, Twas,

DANIEL JAMES SIXTA, hereafterstyled the Defendant, heretofore on or about FEBRUARY 21, 2002, did then and there unlawfully, oy

accidentand mistake when operating A MOTOR VEHICLE IN A PUBLIC PLACE while intoxicated, namely not having the normaluse o" his

mental and-physical faculties by reason of the introductionof ALCOHOL into his body, and by reason of that intoxication, cause the death of

IJNi?A COBLE, hereafter called the Complainant, by DRIVINGHIS MOTORVEHICLE INTO A MOTOR VEHICLE OCCUPIED BY T* iE

COMirTJUNANT.

It is Anther presented that in Harris County, Texas Daniel James Sixta, hereafter styled the Defendant heretofore on or about February 21, 2'3J2

by accident and mistake when operating A MOTOR VEHICLE IN A PUBLIC PLACE while intoxicated, namely having an alcohol concenlrui^n

of at least 6.08 in his BLOOD, and by reason of that intoxication^ cause thedeath of LINDACOBLE, hereafter called theComplainar:, by

DRIVING HIS MOTOR VEHICLE INTO A MOTOR VEHICLE OCCUPIED BY THE COMPLAINANT.

It is further presented thatat the time the Defendantcommittedthe offense ofoperatinga motor vehicle while intoxicated ashereinabove al1; j^d

committed on or about February 21, 2002, he bad an open container of an alcoholic beverage in his immediate possession in the passenger

compartment of said motor vehicle.

It is further presented that at the time the Defendant committed the felony offense of INTOXICATION MANSLAUGHTER on or nlout

FEBRUARY 21,2002, as hereinabove alleged, he used and exhibited a deadly weapon, namely, a AUTOMOBILE during the commission of „nd

during the immediate flight therefrom.

It is further presented that before the commission of the offense hereinabove alleged committed on at about February21,2002 the Defendant on

October 6, 1994 in County Criminal Court at Law No. 13 of Hairis County, Texas, in Cause Nol 9208849, was convicted of the offense of

Operating a Motor Vehicle "WhileIntoxicated.

It is further presented that before the commissionof the offense hereinabovealleged committed on or aboutFebruary 21,2Q02, the Defe^ant

on May 11,1989, in the County Criminal Court at Law No. 5 of Harris County, Texas, in Cause No. 8907002 was convicted of the offeiise of

Operating a Motor Vehicle While Intoxicated.

AGAINSTTHE PEACE AND DIGNITY OF THE STATE.

FOREMAN OF THE GRAND JURY :

INDICTMENT

000002

EXHIBIT TWO

INDEX

DATE

FILED PAGE

CAPTION 1

INDICTMENT FROM CAUSENO. 923494 9-12-02 2

.-..DdCUIvjENTS FROM^ PREVIOUS GAuMnO, 907697;

COMPLAINT FROM PREVIOUS CAUSENO. 907697 4-4-02 3

PROBABLE CAUSE FOR FXTRTHER DF^ENTION & STATUTORY 4-54)2 4

WARNINGS BY MAGISTRATE

LETTER TO THE COURT 4-25-02 6

IMDICTMENT FROM PREVIOUS CAUSE NO: .907697 5-16-02 9

REQUEST FOR NOTICE OF INTENT TO INTRODUCE RULE 404, 7-9-02 10

RULE 609, AND ART. 37.07 EVIDENCE

MOTION TO REDUCE BOND 7-9-02 13 ;

DEFENDANT'S MOTION IN LIMINE 7-9-02 "16

DISCOVERY ORDER 21

DEFENDANT'S MOTION TO APPOINT INVESTIGATOR AND 7-9-02 .24. .

ORDER OF THE COURT

AGREED SETTING 7-9-02 .26

AGREED SETTING 8-7-02 27 .

NOTICE OF INTENT TO SEEK AFFIRMATIVE FINDING OF 9-9-02 .28

DEADLY WEAPON

MOTION TO DISCLOSE EXPERTS 9-9-02 . 29

MOTION TO STACK 9-9-02 33..

DISMISSAL 9-19-02 36

STATE'S NOTICE OF INTENT TO USE AS EVIDENCE BUSINESS 9-20-02 V..37

RECORDS ACCOMPANIED BY AFFIDAVIT

DOCKET SHEET FROM PREVIOUS CAUSE!NO.

NO. 907697 44:

DOCUMENTS FROM PRIMARY CAUSE NO. 923949

MOTION TO TRANSFER MOTIONS AND NOTICES 9-13-02 . 46/

DEFENDANT'S MOTION TO SUPPRESS ORAL STATEMENTS 10-21-02 48

DEFENDANT'S MOTION TO SUPPRESS EVIDENCE 10-21-02 53.

DEFENDANT'S MOTION TN UMENE 10-21-02 ' •:56

S^onnsLib\Qifh\PostTrial\Appeal -.1- \ REV. 01-08-03

EXHIBIT THREE

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

WUKWIW>'JNt

'awawnyawa

WTNCV BOWES

RE: Writ Mo- ffiR-60,547-03

STYLE: SIXTA, DAWIEL JAMES 02 1A $ 00-24°

TRIAL CT WO: 923949-A 0004615122 DEC 13 2006

MAILED FROM ZIP CODE 78701

12/13/2006

This is to advise that the Court has denied without

written order the application for writ of habeas corpus on the

findings of the triar court without a hearing.

Louise Pearson, Clerk

DANIEL JAMES SIXTA

Neal Unit - TDC #1143232

9055 Spur 591

Amarillo, TX 79107

Itliiilllllli!! i 1! 11111111 i •! i 111 i i I liiiiliililuliiiimisi

OFFICIAL NOTICE FROM COURT OFCRIMINAL APPEALS OFTEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

OFFICIAL BUSINESS *.

RF

writ Nc$mT&OF4EXAS":' O ^1*V wvwan,^ wTwrvbowls

E: s^-^EI^ILt^FM^^

. 02 1M $00.32°

j 0004288372 MAY24 2012

•"•'•-•'•'--"-•'•• y •••-.•< MAILED FROM ZIP CODE 78 701

The Court has dinnuss'ed-.your application for s'^rit'of h.^*---. .=?,-:

corpus without written ordp,: fei; nor^-compj i ance with Texas Rule

of Appelate Procedure 73.1. Srpc i fi cal lyj applicant's facts

supporti.rig grounds one «nd four .sne not on the prescribed for-iii. See

£x parte Bi.acHoctt, 191 5,K3d 718 (Texu Crim, App. 2f506).

;-1" K

J'-''-.'11 Up -1~ - '"'

9 0^') Pr:|i.' .K.'V!

/iw^^M^iJiijaffii,,,/),,,,],,/,,,,},,!,,

EXHIBIT FOUR

Scanned Jun 27, 2006

r\

No. 923949-A

EXPARTE IN THE 351st DISTRICT COURT

OF

DANIEL JAMES SIX [A HA RRIS COU NT Y, I E X AS

AFFIDAVIT

Belbrc me, the undersigned notary public, appearred Michael E. Barrow, who upon oath

stated the following:

"My name is Michael E. Barrow. I am a licensed attorney practicing in Houston, Harris

County. Texas. My Texas Bar card number is 01831900. On May 20, 2002, I was appointed by

Judge Mark Ellis of the 351"' District Court to represent Danief Sixta in cause number 870084, a

motion to adjudicate alleging that Mr. Sixta had violated a condition of his deferred adjudication

probation lor injury to a child. On June 6, 2002, I was appointed by Judge Ellis to represent Mr.

Sixta in cause number 907697 (later reindicted under cause number 923949) against the charge of

intoxication manslaughter alleged to have occurred on February 21, 2002. Mr. Sixta s trial

commenced on December 9/ 2002, and on December 12, 2002, he was found guilty by a jury of

intoxication manslaughter. On December 13, 2002, Mr. Sixta was assessed a term oftwenty years

in the penitentiary by the jury.

I. State whether trial counsel investigated potential witnesses who could have rebutted the

Slates physical evidence.

a

HI

Counsel spoke to the two prior attorneys who had .represented Mc. Sixta before $5

^cxcQ

£

RECORDER'S MEMORANDUM

This instrument is of poor quafijy

at the time ofimaging

COUO/

Scanned Jun 27, 2006

coimsol's appointment. Counsel also spoke with numerous attorneys who all indicated that they

knew o\:~ no expert who would testify for the nominal fee approved by the Court. Counsel did a

scene investigation but due to Ihe time elapsed since the date of the offense to the appointment of

counsel no-physical evidence could-be obtained. Counsel was left with the facts recorded by the

State s investigator Harris County Sheriffs deputy David Pearson and his accident reconstruction

Counsel reviewed those facts, figures and computations and again after consulting with other

attorneys came to the conclusion that adefense witness could not have testified differently as to the

evidence presented by the State.

2. State the extent to which counsel advised Applicant regarding Applicant's right to accept

the plea bargain or proceed to trial.

Counsel met with the Applicant on at least six occasions in Court. Counsel also met

with Applicant four times at the county jail. From counsel's first visit with Applicant through all

other visits Applicant indicated to counsel that he would not accept aplea bargain but wanted atrial.

Counsel informed Applicant ofevery plea bargain offer made by the State and Applicant refused to

accept any offer. Further on the day trial was to commence, Applicant was admonished by the Court

of the State's final plea offer arid Applicant refused to plead guilty.

3. State the extent to which counsel advised the Applicant regarding the potential range of

purushment for the primary offense, including if counsel advised Applicant to refuse the plea

bargain.

Counsel never advised the Applicant to rcfase any plea bargain offer made by the

Stale. Counsel never advised Applicant to refuse aplea bargain "because ofthe way the law read".

GOUOoO

Scanned Jun 27, 2006

Counsel advised Applicant Ihat Ihc range ofpunishment for the primary offense of intoxication

niansiaugiiicr was from two to twenty years in the penitentiary and a possible fine ofup to ten

thousand dollars. Counsel also advised Applicant that the range ofpunishment for the lesser included

nHcnse of felony driving while intoxicated was from two to ten years in the penitentiary and a

possible tine of ten thousand dollars. Additionally, counsel advised Applicant that if the Court

adjudicated him guilty for injury to achild, that he faced a punishment of six months to two years

ma stale jail. Counsel also advised Applicant that ifhe were found guilty ofthe primary offense and

was adjudicated guilty on his deferred probation the Court in its discretion could have the sentences

run consecutively as opposed to concurrently.

T Slate the extent to which counsel advised the Applicant regarding his right to trial by jury

and state whether Applicant manifested a desire to have ajury trial.

Counsel advised Applicant that he had an absolute right to a jury trial. Further,

counsel advised Applicant that it was Applicant's decision whether or not to have a trial. From

counsel's first meeting with Applicant until the Court admonished Applicant, on the day of trial, it

was always Applicant's desire to have a trial.

5. State whether counsel investigated, discussed, and considered Applicant's mental histoiy,

including his alleged attempted suicide and blood loss.

In the approximately six months from date of appointment until trial, counsel never

received any indication that Applicant had any mental problems. Counsel was always able to

communicate with Applicant and Applicant appeared to have no problems in discussing the tacts of

his case or trial strategics. Counsel was not aware of any attempted suicide by Applicant until the

COUOci;

Scanned Jun 27, 2006

day lite punishment portion ofthe trial was set to begin (December 13, 2002). Counsel was informed

'by the baliff that Applicant had cut his wrist the night before in jail. Applicant was brought into the

courtroom where counsel consulted with Applicant. Applicant had some bandages on his arms and

was told by the Court that he would have to unroll his sleeves to cover the bandages in front ofihe

jury. Counsel spoke with Applicant who other than being depressed about being found guilty

appealed to be line. Counsel consulted with Applicant about his testimony during punishment and

Applicant had no problem in responding. Counsel could not perceive any reason not to continue tfic

trial. As to blood loss by Applicant, there was no indication to counsel that Applicant was not able

to continue trial

o. State whether counsel observed anything in Applicant's speech, behavior and demeanor

winch caused counsel any concern about Applicant's competence to stand trial.

Counsel did not observe anything in Applicant's speech, behavior and demeareor

which caused counsel any concern about Applicant's competence to stand trial.

7. State whether counsel believed that Applicant had sufficient present ability to consult with

counsel with a reasonable degree of rational understanding and had a rational and tactual

understanding of the proceedings against him on the date of his trial.

Counsel believes that Applicant had sufficient present ability to consult with counsel

with a rational understanding and Applicant had a rational and factual understanding of the

proceedings against him. Applicant was very involved in his trial. He took notes throughout the trial

and proposed questions for counsel to ask.. Counsel and Applicant had numerous discussions oftrial

strategy and Applicant was a vocal participant. The day after Applicant's alleged suicide attempt,

CG0082

Scanned Jun 27, 2006

counsel spoke with Applicant about his testimony during the punishment stage and again Applicant

was a vocal participant. Counsel never saw any indication that-Applicant was unable to discuss his

case or that he did not understand the proceedings. Applicant never indicated to counsel that there

was any kind of problem and, counsel in speaking with and observing Applicant never saw a

problem"

lichael E. Barrow

Simied thiF^"' _ day of 2005

*-$T% CYNTHIA MONTANA

riW?! MY COMMISSION EXPIRES

mfe" October 29,2009

cotary Public

COUO&o

l/C/£~C//'/«= -/

EXHIBIT FIVb >w ^

6y tfoCf'j 6~' <^£L '*J

APPEARANCES

MS. MARKAY STROUD

5 Assistant District Attorney

6 SBOT NO. 24000229

7 MS. ELIZABETH SHIPLEY

8 Assistant District Attorney

9 SBOT NO. 24008031 -

10 1201 Franklin

11 Houston, Texas 77002

12 PHONE 713.755.5800

13 ATTORNEYS FOR THE STATE OF TEXAS

14

15

16 MR. MICHAEL BARROW

17 SBOT NO. 01831900

18 1314 Texas Avenue, Suite 13 0 0

19 Houston, Texas 77002

20 PHONE: 713.224.8383

21 ATTORNEY FOR THE DEFENDANT

22

23

24

25

1 convicted of the offense of operating a motor vehicle

2 while intoxicated.

3 THE COURT: To that allegation of a prior

4 conviction, how do you plead, true or not true?

5 THE DEFENDANT: True.

6 MS. SHIPLEY: It is further present that

7 before the commission of the offense hereinabove alleged

8 committed on February 21, 2002, the defendant on May 11,

9 1989, in the County Criminal Court at Law No. 5 of Harris

10 County, Texas, in Cause No. 8907002 was convicted of the

11 offense of operating a motor vehicle while intoxicated.

12 Against the peace and dignity of the State.

13 Signed, foreman of the grand jury;

14 THE COURT: To that allegation of prior

15 conviction, how do you plead, true or not true?

16 THE DEFENDANT: True.

17 THE COURT: All right. You may be seated.

18 Does the State wish to make an opening

19 statement?

20 MS. SHIPLEY: We do,'Your Honor.

21 THE COURT: You may proceed.

22 v/sTATE'S OPENING STATEMENT

23 MS. SHIPLEY: On February 21st, Martha Alford

24 was getting ready to have dinner with her sister. She

25 was on FM 1960 about 11 o'clock. She was getting ready

1 You will also be hearing from -- after-

2 Martha, you will be hearing from Deputy Pearson. You

I 3 will hear that he is an- accident reconstruction expert.

4 And he will tell you that the investigation that hie did,

5 when he got to the scene, based on his interview of the

6 witnesses, based on his looking at the skid marks, based

7 -s on his estimation of the speed, Martha Alford's left-hand

X 8 turn did not kill her sister. It was the defendant's

9 intoxication.

1.0 He will tell you that based on all of his

11 experience and his analysis of the scene, the defendant

12 had time to stop. He had time to slow down. He iaad time

to swerve, but because of his intoxication he didn't do

t X 13

14 those things. It could have been just a fender-bender.

15 That is what the deputy is going to tell you. It could

16 have been that he swerved and missed her completely. But

17 because he was almost three times the legal limit„ he

18 didn't do those things. Instead, he smashed right in the

19 center, crushing Linda Coble with his 4-Runner. That is

20 what the deputy will tell you.

21 You will also hear from Carolyn Messera, who,

22 I submit to you, is some of the most important testimony

23 you are going to hear. Because Carolyn Messen was also

24 involved in that accident and she was sitting in the

2 5 passenger seat of the defendant's truck. She is going to

<

EXHIBIT SIX

9- 2^ -T)<b'

N0.923949-A

EXPARTE § MTHE 351ST DISTRICT COURT

§ OF

DANIEL JAMES SIXTA,

Applicant § HARRIS COUNTY, TEXAS

RESPONDENTS ORIGINAL ANSWER

Respondent the State ofTexas, through its Assistant District Attorney for Harris

County, files this, itsoriginal answer inthe above-captioned cause, having beenserved with

an application forwritofhabeas corpus pursuant to Tex. Crm. Proc Code Ann. art 11.07

§ 3 (Vernon Supp. 2004), and would show the following:

I.

Applicantis confined pursuant to the judgment ana sentence olthe 351^ District

Court of Harris County, Texas, in cause number 923949 (the primary case), where

Applicant was convicted by a jury for the felony offense of intoxication manslaughter.

The jury assessed punishment enhanced by two (2) prior convictions, at twenty (20)

years confinement in the Texas Department of Criminal Justice - tostitutional Division.

The First Court ofAppeals delivered an opinionaffirming Applicants conviction in

the primary case on December 18, 2003. Sixtav. State, No. 01-02-01316-CR The Court

of Criminal Appeals refused Applicant's petition for discretionary review on May 26,

2004.

n.

Respondent denies thefactual aflegations made in the instant application, except

those supported by official court records, and offeis the following additional repfy:

Reply to AfpijcantTs First Ground por rctxkk

hi his first ground for relief, Applicant alleges he was denied the effective

assistance trial counsel. Applicants writ at 7. Spedficalfy, Applicant alleges Michael

Barrow, trial counsel:

1. Failed to Investigate;

2. Failed to Object

3. Failedto AssistApplicant in pleabargaining; and

4. Failed to request a competency evaluation.

The United States Supreme Court held in Strickland v. Washington, 466 U.S. 668,

686 (1984), that the benchmark forjudging anyclaim ofineffective assistance ofcounsel

is whether counsel's conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied upon as having produced a just result The Court

in Strickland, set forth a two-part standard, which has been adopted by Texas. See

Hernandez v. State. 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). First the defendant

must prove by a preponderance of the evidence that counsel's representation fell below

an objective standard of reasonableness. Mitchell v. State, 68 S.W.3d 640, 642 fTex.

Crim. App. 2002); Narvaiz v. Stats, 840 S.W^d 415, 434 (Tex. Crim. App. 1992) (citing

Strickland, 466 U.S. at 688). Reasonably effective assistance ofcounsel does not require

error-free counsel, or counsel whose competency is judged by hindsight Mercado v.

State, 615 S.W.2d 225, 228 fTex Crim. App. 1981). Second, there must bea reasonable

probability that but for counsel's unprofessional errors, the result of the proceeding

would have been different Id. A"reasonable probability" is "a probability sufficient to

undermine confidence in the outcome." Id.

Article I, Section 10 of the Texas Constitution also requires that a aiminal

defendant receive effective assistance of counsel. However, the Texas constitutional

2

provision does not create a standard that is more protective of a defendant's rights

than that established in Strickland. Black v. State, 816 S.W.2d 350, 357 fTex. Crim.

App. 1991) (citing Hernandez v. State, 726 S.W.2d 53 fTex. Crim App. 1986)).

Therefore, an analysis of the effectiveness of Applicant's trial counsel in the primary

case pursuant to the Strickland standard satisfies both the federal and state

constitutional requirements.

Failure to Investigate

Applicant alleges that his trial counsel failed to investigate the blood sample and

the accident report Applicants writ at 7; Applicants memorandum at 7. Applicant

alleges thatdefense counsel did not have a complete copy of the accident report until the

beginning of trial which allegedly states that the other driver, Ms. Martha Afford, was

inattentive and failed to yield. Applicants memorandum at 7.

A^ To obtain habeas relief in a failure to investigate claim, Applicant must show

what-a more in depth investigation would have revealed. JMooney v. State, 817 S.W.2d

693 fTex. Crim. App. 1991). In habeas proceedings, the Applicant must allege

sufficient facts which, if true, would entitle him to relief Ex parte MaJdonado, 688

S.W.2d 114, .116 (Tex. Crim App. 1985).

Applicant fails to show what a more in depth investigation of the blood sample

would have revealed and fails to show how Ms. Afford's inattentiveness and failure to

yield establish a reasonable probability that but for counsel's failure to investigate the

accident report, the result of the proceeding would have been different Therefore,

Applicant fails to allege sufficient facts, which, if true, would entitle him to relief.

Maldonado, 688S.W.2d at 116.

Accordingly, the instant allegation is without merit and should be denied.

Failure to Investigate Witnesses

Applicant alleges that his trial counsel failed to hire an expert witness and

failed to interview all of the witnesses until the day of triaL Applicants writ at 7;

Applicants memorandum at 11. Specifically, Applicant alleges the court granted a

motion designating money to be used to hire an expert in accident site reconstruction.

Applicants memorandum at 6. However, Applicant alleges counsel was ineffective

because no expert was presented. Id. Applicant further alleges that counsel failed to

seek out an expert witness who would have impeached the state's physical evidence.

Id. Applicant identifies William Russell Haight of the Collision Safety Institute as a

possible expert witness, and alleges that with Mr. Haigbts tes&mmy, counsel could

have developed a better defense. Id at 6-7.

To obtain relief for counsel's failure to present or investigate witnesses, an

Applicant must show that potential witnesses were available, and that their testimony

would have benefited the defense. King v. State, 649 S.W.2d 42, 44 fTex. Crim. App.

1983); WUkerson v. State, 726 S.W.2d 542. 551 (Tex. Crim. App. 1986).

Applicant fails to carry his habeas burden because he fails to show the

potential witness was available and that his testimony would have benefited the

defense. Applicant's conclusory allegation that Mr. Haight's testimony would have

"developed a better defense" is not enough to warrant habeas relief. Exparte Young,

418 S.W.2d 824 (Tex. Crim. App. 1967). Even if sworn to, the allegation is insufficient

to overcome the State's denial. Exparte Empey, 757 S.W.2d 771, 775 fTex. Crim App.

1988).

Furthermore, assuming, arguendo, that defense counsel limited his investigation,

an attorney's decision to limit his investigation may be reasonable under the

circumstances. Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.); Butler v. State, 716

4

I

I be resolved in the instant proceeding. Respondent further requests that the Court order

| Applicant's counsel in the primary case, MICHAEL E, BARROW, to file an affidavit

summarizing the actions taken to represent the Applicant and responding to the

I allegations contained in the application.

IV.

Applicant raises questions of law and fact which can be resolved by the Court of

Criminal Appeals upon review of official court records and without need for an

evidentiary hearing.

V.

Service has been accomplished by sending a copy of this instrument to the

following address:

DANIEL JAMES SIXTA

#1143232 - Neal Unit

9055 Spur 591

Amarillo, TX 79107-9696

SIGNED this 29th day ofSeptember, 2005.

Respectfully submitted,

it District £&ssmey

larris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

Texas Bar I.D. #24027780

Prepared by Mary E,. ISasonao

Legal Intern, Harris County

12

EXHIBIT SfcVfcJN

AFFIDAVIT

THE STATE OF NEBRASKA

COUNTY OF f>>sJaS

BEFORE ME, the undersigned notary, on this day personally appeared Janet

Koski, a person whose identity is known to me. After I administered an oath to her, upon

her oath she stated:

.p^ My name is Janet Koski. Iam over twenty-one (21) years of age. Iam aresident of

I /f)Lyrt \U .S County, Nebraska. I am fully competent to make this Affidavit. All

statements within this Affidavit are within my personal knowledge and are true and

correct

Daniel James Sixta, who is presently incarcerated at the Coffield Unit, Tennessee

Colony, Texas, TDCJ No. 1143232 is my brother. He was convicted of intoxication

manslaughter in 2002 in the 351st District Court of Harris County, Texas in cause no.

923949. He is filing his application for writ of habeas corpus.

A critical question in his trial was who actually caused the collision between the

vehicle he was driving and another vehicle, the passenger in the other vehicle having died

as a result of the collision?

My brother was financially unable to make bail orto retain an attorney, and hewas

compelled to go to trial without his own expertwitness to combat the State's version of the

collision. It was not until funds were provided by me that we were able to retain an

accident reconstruction expert, and the "Cope" report was clearly in my brother's favor,

showing he did not cause the coUision. This defense was denied to him at his trial, through

no lack of diligence on his part.

This "evidence" was "newly discovered" as far as he was concerned, and he used

"due diligence" to obtain it I believe the report will be a part ofhis writ application.

^So^ct-, &

JANET KOSKI

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public on

this y^ day of OQJrhe^ .2013. .

My commission expires: /' H'\5

GENERAL NOTARY - State of Nebraska County, State of Nebraska

KRISTYNWIEHL

MvComm. Exp. July 14,2015

EXHIBIT EIGHT

PETITIONER AFFIDAVIT

On December 12, 2012, I DANIEL JAMES SIXTA TDCJ #1143232, was convicted

of Intoxication Manslaughter, Case No. 923949.

The NEWLY DISCOVERED EVIDENCE, was only found, because I never surrendered

my rights to exercise DUE DILLIGENCE to obtain an expert in auto accident

recollision. The report was thus obtained solely as the result of an

unexpected and previously unforeseen "Beneficence" of a third party that

had no prior duty or obligation to provide any funding.

I was unable to secure funds before'this date because I was "INDIGENT"

I didnot have the means to hire any auto collision expert because of

this fact.

At the time of my arrest, I could not make bail, because I was under

DUAL indictments for the same charge, and because of this fact I had

fell behind on my mortgage payments, and I was unable to sale my home

of which I had live in for over 16 years and had $65,000.00 in equity.

I have never recieved any type of settlement from my mortagage company

or my auto insurance company. /

This NDE was unavailable until July 2007, when a Ms. Janet Koski agreed

to provide funding to hire and expect. I was unable to obtain such

evidence free of charge. I have never had more than afew hundred

dollars on my commissary account since my arrest.

Although there was some delay between my obtaining this experts report.

I was ultimately able to secure the funding to hire an expert and have

the facts analysis, and prove that the State's finding were incorrect

and were a product of erroneous analysis of available data.

P.l

INMATE'S DECLARATION

I, DANIEL JAMES SIXTA, BEING PRESENTLY INCARCERATED IN TDCJ at the Coffield

Unit, Declare under penalty of perjury that, according to my belief, the

facts stated in this PETITIONER AFFIDAVIT are true and correct.

Signed on June 22, 2013.

)ANIEL JAMES' SIXTA

TDCJ #1143232

Coffield Unit

2661 FM 2054

Tennessee Colony, TX 75884

P.2

EXHIBIT NINE

INDEX

REGARDING APPLICANT'S ACCIDENT RECONSTRUCTION REPORT

AFFIDAVIT OF EXPERT

HIS RESUME'AND CREDENTIALS

THE ACGIDDENT RECONSTRUCTION REPORT

COPE'S EXPERT TESTIMONY IN OTHER COURT CASES

EXHIBIT NINE

TRIAL COURT CAUSE NO. 923949

DANIEL J. SIXTA § IN THE DISTRICT COURT

Appellant §

§

§ HARRIS COUNTY, TEXAS

vs. §

§

THE STATE OF TEXAS §

Appellee § 351 st JUDICIAL DISTRICT

AFFIDAVIT OF CAM COPE

THE STATE OF TEXAS

COUNTY OF MONTGOMERY

BEFORE ME, the undersigned notary, on this day, personally appeared Cam Cope, a person whose

identity is known to me. After I administered an oath to him, upon his oath, he stated:

"My name is Cam Cope. Iam over twenty-one (21) years of age. I am a resident of

Montgomery County, Texas. I have never been convicted of a crime, and I am fully

competent to make this Affidavit. All statements within this Affidavit are within mypersonal

knowledge and are true and correct.

In 1971, I obtained a Bachelor of Science degree in Biology and Chemistry from

New Mexico Highlands University.

After graduation from New Mexico Highlands University, I served in the United

States Army from 1971 through 1974. As part of my duties in the United States Army, I

was involved in surgical research at both Walter Reed Army Medical Center and William

Beaumont Army Medical Center.

Upon discharge from the United States Army, I took sixty (60) hours of

undergraduate and graduate courses at Texas A&M University. These courses included,

but were not limited to, chemistry and physics. Also, within the Texas A&M University

System, Icompleted an eighty (80) hour course in Advanced Accident Reconstruction.

Accident Reconstruction courses are not apart ofany engineering degree program, so the

engineering and reconstruction technology is basically obtained through the Society of

Engineers and their peer reviewed articles and teaching.

In fact, Ihave continued with my education overthe years, attending classes taught

by the Society of Automotive Engineers and accident reconstruction organizations

regarding vehicular accidents and occupant restraint systems. Courses Ihave completed

include Crash Data Retrieval Systems, Air Bag Litigation, Vehicle Restraint Systems and

Airbags, Occupant Restraint and Protection, Airbag Field Performance, GM Technical on

Airbags, Technology and Performance of Airbags, and Airbag Design and Performance.

For adetailed list of the courses that Ihave taken in my effort to continue my education,

please see my most recent curriculum vitae attached to this Affidavit and incorporated

herein by reference as iffully set forth.

Iam amember ofthe National Association of Professional Accident Reconstruction

Specialists and the Texas Association ofAccident Reconstruction Specialists. Also, Iam a

member of the Society of Automotive Engineers. Additionally, Iam a member of the

American College of Forensic Examiners. For adetailed list of my professional affiliations,

please see my most recent curriculum vitae attached to this Affidavit and incorporated

herein by reference as if fully, set forth.

During the course of my career, Ihave continued to be active with the Society of

Automotive Engineers as a sectional leader and have also been Chairman of the

Engineering and Technology for the American College of Forensic Examiners, and Ihave

published several papers. For adetailed list of my published papers, please see my most

recent curriculum vitae attached to this Affidavit and incorporated herein by reference as if

fully set forth.

Since 1985,1 have worked in the area ofaccident reconstruction, primarily involving

motor vehicles, with an emphasis on occupant restraint systems, including airbags. In this

connection, Ihave testified as an expert witness on many occasions.

In September 1996,1 founded Cam Cope Consulting. This firm provides consulting

services with an emphasis on accident reconstruction and identification of occupant

restraint system usage, including airbags and seatbelts. Auto Fire &Safety Consultants,

Inc. d/b/a Cam Cope Consulting has been an ongoing venture from September 1996 to the

present.

I am also a Licensed Private Investigator, with the State of Texas, this is in

compliance with Section 1702.104, Texas Department of Public Safety, Licensing and

Duties of Investigation Companies and Security Service Contractors. Unless the person

holds alicense as an investigation company, aperson may not: Engage in business activity

for which a license is required under this chapter. Aperson acts as an investigation

company for the purposes of this chapter if the person: (1) engages in the business of

obtaining or furnishing, or accepts employment to obtain or furnish, information related to:

(a) crime or wrongs done or threatened against a state or the United States; (b)the

identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location,

affiliations, associations, transactions, acts, reputation, or character of aperson; (c) the

location, disposition, or recovery of lost orstolen property; or (d) the cause or responsibility

for afire, libel, loss, accident, damage, or injury to aperson or to property. (2) engages in

the business of securing, or accepts employment to secure, evidence for use before a

court, board, officer, or investigating committee; (3) engages in the business ofsecuring,

or accepts employment to secure, the electronic tracking ofthe location ofan individual or

motor vehicle other than for criminal justice purposes by or on behalf of agovernmental

entity; or (4) engages in the business of protecting, or accepts employment to protect, an

individual from bodily harm through the use of apersonal protection officer. Copy of the

related sections attached.

Ourfirm has been contacted by Janet Koski on behalfofdefendant, Daniel J. Sixta,

to evaluate and reconstruct avehicular,accident involving a1994 Toyota 4-Runner driven

by Daniel J. Sixta and a2001 Ford Focus SE driven by Martha Alford that occurred on

February 21, 2002, at 11000 FM 1960 W., Houston, Harris County, Texas.

Our investigation is based on .the collision analysis, injury analysis, accident

avoidance analysis, injury avoidance analysis, accident causation analysis, accident

prevention and injury reduction analysis, speed ofvehicles during pre-trip, trip and post-trip

phases ofthe rollover event, motion ofvehicles during pre-trip, trip and post-trip phases of

the rollover event, accident severity, vehicle deformation, accident scene geometry,

potential avoidance scenarios, vehicle deceleration rates, driver actions including reaction

time, perception, visibility and contributing factors and cause of the rollover event.

1. Although Iwas not present at the accident and have no personal

kno

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