# Sixta, Daniel James > Court of Appeals of Texas · February 23, 2015 URL: https://www.frixlaw.com/law-library/cases/4040925 ## Case - **Court:** Court of Appeals of Texas - **Decided:** February 23, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4040925 ## How later opinions describe it (automated extraction) - holding that when the subject of the expert's testimony is scientific knowledge, the basis of his or her testimony must be grounded in the accepted methods and procedures of science - explaining that harm occurs when the error had a substantial and injurious effect or influence in determining the jury's verdict ## Opinion text 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'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 •••-.•w ^ 6y tfoCf'j 6~' >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 knowledge of the accident this is not the criteria required in duPgntde Nemours &Co. v. Robinson, 923 S.W. 2d 549 (Tex. 1995); EmvjJnjted Stetes, (1923), Daubert v. Merrell Dow Pharmaceutical 509 U.S. 579 (1993). 2. The investigation of accidents in the State ofTexas requires that you are licensed with the State ofTexas as a Licensed Private Investigator, my license number is Texas P.I. # A09524. The investigation of this accident was needed to establish the opinions listed in my report. 3. Itis not required that measurements be taken at the scene. For the scene evaluation I used aerial photographs which are also widely used by the Accident Reconstruction Profession and information listed on the police report to illustrate for the jury the positioning of the vehicles prior to and during the collision. Since no measurements orevidence wasretained by the police department on the day ofthe accident, the methodology Ihave used to document the scene is well accepted by the reconstruction profession. Please refer toAccident Reconstruction Analysis by Rudolph Limpert, Fifth Edition, Chapters 3 & 5. (See attached). k Measurements of same or similar vehicles involved in the accident were obtained from All Data and manufacturer specifications that accurately document similar vehicles. Copies of the All Data Spec Sheets are . provided with this Affidavit. Exemplar photographs of the exemplar vehicles have also been taken to document the structure of the vehicles. The inspection of similar vehicles was conducted in this investigation since the vehicles and scene were not available. The photographs provided by the various entities represent and show the damage to the vehicles. The photographs accurately show the crush and evidence marks that we were able to use in the reconstruction of this accident. The crash tests, studies and calculations used in the reconstruction of this accident are available through the Society ofAutomotive Engineers, Accident Reconstruction Journals, various other peer reviewed literature, testing and calculations to show the sequence ofevents in this accident. 6. I relied on the police report to the extent recommended by the accident reconstruction profession and the various sources of literature related to the use of police and witness statements. See Chapters 3 & 5 of Accident Reconstruction Analysis by Rudolph Limpert, Fifth Edition. 7. The factual observation of the accident scene by the Harris County Sheriffs Department was documented by the investigating officer using the skills required by the officer's profession. 8. The Harris County Sheriffs Department report is a factual report that represents the investigation as it was conducted on the day of the accident. As an officer, D.T. Pearson has the duty to document the I evidence and factors associated with the accident. I have reviewed Officer Pearson's report and trial testimony. 9. . I have used Engineering Dynamics Corporation (EDC) software, with the aid of an on-staff engineer, which includes, HVE, EDCRASH, EDSMAC and SIMON. The HVE simulation environment was introduced in 1996 for the 3-D user, with the 2-D simulations dating back to the 1980's and early 1990's. The 3-D, 5,0 version was developed as a sophisticated, 3- dimensional user environment for setting up and executing simulations involving humans and vehicles interacting with their environment. In 2001, SIMON along with DyMESH was introduced to provide simulation involving rollover and override, as well as other 3-dimensional collision issues. The HVE programs have been widely accepted by the Accident Reconstruction profession, widely published and peer reviewed. This program was used to formulate other plausible scenarios based on the evidence made available. 10. | have used the photographs provided and the simulation to determine the speeds at impact, as well as post-impact speeds to determine the factors associated with the rollover event. 11. My opinions are based on vehicle evidence shown in the photographs, an understanding of the scene, and an understanding of the vehicle dynamics and the motions of the vehicle. These opinions regarding this accident can be expressed to the jury using the scientific knowledge and scientific methodology used by the accident reconstruction profession. The photographs reviewed of the vehicles involved in this accident show ' the factual evidence needed to provide the opinions Ihave listed in my report." Further t sayeth not. tan>Cbpe, P( Auto Fire & Safety Consultants, Inc. d/b/a Cam Cope Consulting SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public on this the2^1 day of October 2007. y Notarypu 9- My Commission: /tf/^r/L' P^ C°m made tnalJUdges the Satekeeperof 1. Whether the theory used by the expert can be and has been tested- 2. Whether the theory or technique has been subjected to peer review 3. The known or potential rate of error of the method used- ' 4. The degree ofthe methods orconclusion's acceptanceWhin the relevant scientific community. know,edge, ski,, experience, training, or education, may ^Te^ totSe^^ Otherreference materials include: 1. Low Speed Automobile Accidents, Accident Reconstruction anH rw^w w ~ ' Biomechanics, Second Edition byAlan J. WaS ,PhT^S^^J^?^^^ and " 2. Thomson, Low SpeedF.P.D. Rearand Impacts Navin,andM.J.theMacnabb- Elastic Propels oftLob^ifmw^Mo^'MA; mA"^oUes, SAE 896142, by DP. Rom.lly, R.W. 4. Analysis ofHuman Test Subject Kinematic Responses to Low Velocity Rear End Impacts SAF QinfiRa „ Whitman E. McConnefl, Richard P. Howard Herbert MGuzman inhn r 7Zt ,lmPa^s^E 930889, by Benedict, Harry L. Smith and Charies P. Hatse? ' °B> B°mar'JameS H' Raddin-James V- 5. Human OccupantKinematic Response to Low Speed Rear-End Impacts SAF Q4nw h„xh„ .o L ££na We,cte, RofcrtD. A„^„. MichI M. Rio, ££%%.SiSSS 7- aD*j™s^^^^ Auto Fire & Safety Consultants Cam Cope Curriculum Vitae www.fJresafetyconsulfant.cnm ccope@firesafetyconsultant.com AREAS OF SPECIALIZED EXPERTISF Accident Reconstruction Fire Origin and Cause Occupant Restraint Systems/Airbags Fuel Systems Integrity, FMVSS 301 Nikon Total Station Scene Surveys Interior Flammability, FMVSS 302 Crash Data Retrieval GM - Ford vehicles Trucking Accidents Case Evaluation Vehicle Products Liability /Vehicle Assessment /Defects Vehicle Fire Testing Mr. Cope received aBachelor of Science degree in Biology and Chemistry in 1971 and has been investigating and reconstructing accidents for the past twenty (20) years. During that period, he continued his education and training through the Society of Automotive Engineers (SAE). This organization provides the most peer reviewed literature and training with regards to vehicles and accident reconstruction. Engineering and reconstruction of accidents is primarily taught through SAE and various Accident Reconstruction seminars conducted throughout the United States. The Texas Accident Reconstruction Association as well as the National Accident Reconstruction Association also provides training and literature for the Accident Reconstructionist. The National Fire Protection Association, International Association ofArson Investigators, National Association of Fire Investigators and various Chapters of Accident Reconstruction and Fire Investigation also provide training and technology in the field of vehicle accident reconstruction. In addition to these training organizations, he has also received training through the Texas A&M Extension Service related to Accident Reconstruction, including Advanced Accident Reconstruction. Since none ofthe University Engineering Degreed programs offer education or training in Accident Reconstruction or Fire Science Technology, this education mustbe obtained through the various organizations listed in his Curriculum Vitae. Mr. Cope currently teaches vehicle fire investigation at Eastern Kentucky University, which is one ofthe few universities offering adegree in Fire ScienceTechnology. Cam Cope currently works on the SAE Accident Reconstruction Committee and the Vehicle Fire Task Force Committee, which is apart of the revisions committee for the vehicle section of NFPA 921. Please refer to the attached Curriculum Vitae for Cam Cope for his complete educational background and list of seminars attended. Cam Cope, Cuniculum Vitae ACADEMIC EDUCATION! B.S., Biology/Chemistry, New Mexico Highlands University, 1971 Undergraduate and Graduate Courses (60 Hours), Texas A&M University, 1973 Advanced Accident Reconstruction, Texas A&M(80 Hour Course), 1993 CFEI, Certified Fire Explosion Investigator CFII, Certified Fire Investigator Instructor CVFI, Certified Vehicle Fire Investigator MILITARY U.S. Army 1971-1974 Surgical Research, Walter Reed Army Medical Center Medical and Veterinary Team, Fort Benning, GA Veterinary Team, K-9 unit, Viet Nam Surgical Research, William Beaumont Army Medical Center LAW ENFORCEMENT College Station Police Department Reserve Officer, 1985 to 1990 Police Academy Training-Accident Investigation, Routine Patrol PROFESSIONAL EXPERIENCE September 1996 to Present Auto fire &Safety Consultants, Inc. FormerlyCamCope Consulting Vehicle and structural fire investigation (origin and cause) • Vehicle Fire Testing • Accident Reconstruction: computer modeling (EDCRASH-EDSMAC-HVE 3D, SIMON, DyMESH) • Case evaluation and rapid response in the documentation ofvehicular accidents • Scene drawings &diagrams, inspection ofvehicles, and research • Nikon NPL-820 Total Station,AIMS Software • Products' liability and identification of defective products, testing, and research • Identification of occupant restraint system usage, including airbags and seatbelts . Crash Data Retrieval (CDR) in GM Vehicles (1996-2003): Retrieval ofdata five seconds pre-impact and five seconds post- impact, and near-deployment data (black box data) • Rollovers, trucking accidents, industrial andconstruction accidents January 1991 to 1998 Engineering Reconstruction Associates • Accident reconstruction • Model building • Partner with M. Lewis Coody, Registered Professional Engineer, State of Texas #48387 • Assistant Professor Department ofConstruction Science January 1992 to September 1996 Crowley, Marks, and Douglas • Accident reconstruction, evaluation, and research • Vehicular fires (cause and origin) determination and documentation • Evaluation and investigation ofvehicle products liability January 1985 to January 1992 Crowley and Waltman • Investigation of motor vehicle accidents including the related injuries, fires, occupant restraint systems involving serious injury or death . • Fire cause andorigin 7/12/2007 Auto Fire& Safety Consultants, Inc. 2 18500Trails EndRd.,Conroe, TX 77385 Off: 281.362.0930* Fax: 281.362.1329 Cam Cope, Cuniculum Vitae PROFESSIONAL AFFILIATIONS NAFI, National Association of Fire Investigators (Board Member) CFEI, Certified Fire and Explosion Investigator CFI|, Certified Fire Investigation Instructor CVFI, Certified Vehicle Fire Investigator NSTI, National Safety and Transportation Institute (Board Member) NAPARS, National Association of Professional Accident Reconstruction Specialists TAARS, Texas Association ofAccident Reconstruction Specialists SAE, Society ofAutomotive Engineers Committee Accident Investigation Practices Standards Vehicle Fires Committee , Auto/Pedestrian Standards Sectional Leader, Gulf Coast Chapter NSC, National Safety Council IAAI, International Association ofFire and Arson Investigators NFPA, National Fire Protection Association ACFE, American College ofForensic Examiners Engineering andTechnology Board Diplomat, Chairman ofEngineering andTechnology 2000 Continuing Education Committee and Editorial Review Board Texas Board of Private Investigators and Private Security Agencies Licensed Private Investigator, License A09524 TALI, Texas Association ofLicensed Investigators, Inc. FIAA, Fire Investigation Association ofAlberta (Chapter 38 IAAI) CTFIA Central Texas Fire Investigators Association PUBLICATIONSAND PRESENTATIONS ♦ Cam Cope, The Investigation of Electrical Fires in Vehicles," April 20- 21, 2007, Irmo, South Carolina; Fire Explosions, and Electricity: Intensive Instruction in Irmo (Instructor) ♦ Cope, Cam, "2006ISFI2006 - International Symposium on Fire Investigation Science and Technology; June 26 - 29, 2006, Cincinnati, Ohio; Fire Technology Involving Vehicles &Structures; Faro Scene 3D Laser Scanner. (Instructor) ♦ Cope, Cam, Inner Circle of Investigators 2005 Annual Conference, "Heavy Truck Fires," Williamsburg, Virginia, October 14-15,2005. (Instructor). ♦ Cope, Cam, 2005 Vehicle Fire, Arson &Explosion Investigation Science and Technology Seminar, NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept. 26-29, 2005. (Instructor). ♦ Cope, Cam. "Crash Data Retrieval", 2004 Vehicle Fire, Arson &Explosion Investigation Science and TechnologySeminar, NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept. 27-30,2004. (Instructor). ♦ Cope, Cam. "Sources of Information", 2004 Vehicle Fire, Arson &Explosion Investigation Science and Technology Seminar, NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept 27-30,2004. (Instructor). ♦ Cope, Cam. "Vehicle Systems Design, Form, &Function," "Crash Data Retrieval;" Test Bums. 2004 Vehicle Fire, Arson, & Explosion Investigation Training Program, NAFI, Eastern Kentucky University, Richmond, KY; September27-30,2004. Live bums- Vehicle Fire Testing. ♦ Cope, Cam. "Vehicle Fire Investigation", International Symposium on Fire Investigation, NFPA, Fire Service College, Moreton-in-Marsh, Gloucestershire, UK, June 27-30,2004. (Instructor). 7/12/2007 Auto Fire& Safety Consultants, Inc. 18500Trails EndRd.,Cenroe, TX 77385 Off: 281.362.0930 • Fax: 281.362.1329 Cam Cope, Cumculum Vitae ♦ Cope, Cam. "Vehicle Systems Design, Form, &Function," "Crash Data Retrieval;" Test Burns. 2003 Vehicle Fire, Arson, & Explosion Investigation Training Program, NAFI, Eastern Kentucky University, Richmond, KY; October 1-4, 2003. Live bums- Vehicle Testing. .♦ Cope.Cam. "Vehicle Investigation Issues." 2003 National Fire, Arson &Explosion Investigation Training Program, NAFI, . Sarasota, Florida; August 13,2003. Vehicle testing andlive bums. ♦ "2002 Vehicle Fire, Arson &Explosion Investigation &Technology Seminar," National Association ofFire Investigators and Fire and Safety Engineering Technology; Eastern Kentucky University, Richmond, KY; September 30-October 2,2002. (Instructor). ♦ Cope, Cam and Bill Camp. "Use of Digital Photography in Investigation." American Trial Lawyers Association Presentation: Chicago, Illinois; July31, 2000. ♦ Cope, Cam. "Airbag Investigation." The Legal Investigator - All CLI Issue. National Association of Legal Investigators; May 2001. ♦ Cope, Cam. "Motor Vehicle Fires and NFPA 921." Test Burning ofVehicles 2001: National Advanced Fire, Arson, and Explosion Investigation Science and Technology: Eastern Kentucky University, Richmond, Kentucky; March 13-17,2001. ♦ Cope, Cam and Bob Swint. "Airbag Safety &Investigation." The Forensic Examiner. May/June 2000. . ♦ Cope, Cam and Dennis Andrews. "Low-Speed Rear-End Impact Analysis / Seat Belts / Airbags." ACFE Workshop Presentation: New York City, New York; October 29- November 1,1999. ♦ Cope, Cam. "History of Occupant Restraint Systems!" ACFE 6th National ScientificAcademy Naples, Florida; October12- 14,1998. ♦ Cope, Cam and Bob Swint. The Documentation ofVehicles Involved in Accidents." Engineering and Technology, The Forensic Examiner. Vol. 7: Sept/Oct1998. ♦ Cope, Cam. "Investigation ofVehicle Rollover." Advanced Forensic Civil Investigations. Lawyers &Judges Publishing Co., 1997. ♦ Cope, Cam. "Restraint System Documentation and Investigation." Presentation at 5ft National Scientific Academy & Retreat ofthe American College ofForensic Examiners: San Diego, CA; December 11-13,1997. ♦ Cope, Cam. "Investigation ofan Automobile Accident." Presentation atthe National Association of Legal Investigator Mid- Winter Conference: Chicago, Illinois; March 1995. ♦ Cope, Cam. "Investigation ofa Products Liability Case." Presentation atthe National Association ofLegal Investigator Silver Anniversary Conference: St. Louis, Missouri; 1992. ♦ Cope, Cam. "Vehicle Documentation." Presentation at N.A.L.I. National Convention: Houston, Texas; 199.1. ♦ Cope, Cam. "Accident Investigation Forms," Aseries ofdata forms to beused by Accident Investigators. CONTINUING EDUCATION ♦ Technical Committee on Hazard and Risk ofContents &Furnishings; National Fire Protection Association (NFPA); May 1-2,2007. ♦ The Warren Group, Forensic Engineers &Consultants, Fires Explosions and Electricity: Intensive Instruction in Irmo; April 20-21,2007. ♦ 2007 SAE World Congress, Detroit Michigan, SAE ABA Fire Safety Committee, SAE Motor Vehicle Fire Investigation Task Force, andAIRP Committee Meeting; April 16-19,2007. 7/12/2007 Auto Fire &Safety Consultants, Inc. 4 18500Trails EndRd„Conroe, TX 77385 Off: 281.362.0930•Fax: 281.362.1329 Cam Cope, Curriculum Vitae ♦ "Fire and Materials 2007", Interscience Communications Limited, Fire School, San Francisco, California, January 29- 31,2007. ♦ Cope, Cam, "Central Texas Fire Investigators Associations Annual Meeting &Conference; December 12-13,2006, Austin, Texas; Electrical Fires 102Training Program ♦ Cope, Cam, "2006 ISFI2006 - International Symposium on Fire Investigation Science and Technology; June 26 - 29, 2006, Cincinnati, Ohio; Fire Technology Involving Vehicles &Structures. ♦ Cope, Cam. "2006 ARC-CSI Crash Conference", June 5-8,2006, Las Vegas, Nevada. Crash Testing - Rollover, Motorcycle and Bus. ♦ 2006 SAE World Congress, Detroit, Michigan, SAE AIRP Committee Meeting, SAE ABA Fire Safety Committee, Hydrogen Vehicle Safety (Parts 1&2), Fire Statistics and Analysis (Parts 1&2), Material Flammability and Fire Experiments (Parts 1 &2); April 3-7,2006. ♦ Live Bum Testing of Five (5) Ford Vehicles Related to Cruise Control Deactivation Switches conducted by Nationwide Insurance, Houston, Texas; December 5, 2005. ♦ Inner Circle ofInvestigators, 2005 Annual Conference, Investigative Professional Development Conference, Williamsburg, Virginia, October 14-15,2005. (10 hrs) ♦ Vehicle Fire, Arson &Explosion Investigation", (Total Bums - Testing) Science &Technology Seminar, NAFI, Fire and Safety Engineering Technology, Eastern Kentucky University, September 26-29,2005. ♦ NFPA 921 - Task Force Committee Meetings Relative Changes to NFPA 921, Minneapolis, Minnesota, September 14-16 2005. ♦ 2005 NAFI - National Seminar on Fire Analysis Litigation, Sarasota, Florida, August 11-12, 2005. ♦ 2005 NAFI -National Fire, Arson &Explosion Investigation Training Program, Sarasota, Florida, Computer Fire Modeling, August8-10, 2005. ♦ 2005 SAE World Congress, Detroit, Michigan, "Fire Safety" "Accident Reconstruction", "Side Impact &Rollovers", "Restraints Systems". (AIRP Standards Committee &VFI Advisory Group); April 12-15, 2005. ♦ "Fire and Materials 2005", Interscience Communications Limited, Fire School, San Francisco, California, January 31- February 1,2005. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4040925. Public record. Not legal advice.