The opinion
WR-83,448-01,02,03
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/29/2015 5:55:11 PM
Accepted 9/30/2015 10:23:29 AM
ABEL ACOSTA
CLERK
CAUSENO.WR-83-448-01 RECEIVED
CAUSE NO. WR—83-448-02 COURT OF CRIMINAL APPEALS
9/30/2015
CAUSE NO.WR-83-448-03 ABEL ACOSTA, CLERK
IN THE COURT OF CRIMINAL. APPEALS
AUSTIN. TEXAS
IN THE MATTER OF THE WRITS OF HABEAS
CORPUS FILED BY LYNWYATT ALLEN
REQUEST FOR LEAVE TO FILE
MOTION FOR COURT TO VACATE ITS
ORDER DENYING WRIT AND REMAND
FOR EVIDENTIARY HEARING
IN THE ALTERNATIVE REQUEST
FOR COURT TO VACATE ITS ORDER
DENYING APPLICANTS PETITION
AND REMAND FOR EVIDENTIARY
HEARING ON ITS OWN MOTION.
Cause arising out ofthe I86"‘ District
Coun, Bexar County. Texas
The Hon. Jefferson Moore, Presiding
KENNETH ERIC BAKER
SBN #2404543‘)
"OfCounseI“ to DiazIakob.
Attorneys L.L.C.
Alamo Towers North
901 N.E. Loop 410
Suite 900
San Antonio, Texas 78209
(.210)226-4500 (p)
(210) 226-4502 (f)
TO THE HONORABLE COURT:
Relief reguested: Reconsideration or the court’s denial of applicanfs Habeas Petition’s without
hearing and remand for an evidentiary hearing.
Procedural statement of the Case
On March 18“‘, 2015, Applicant, Lynwyatt Allen, filed an application for a Writ of Habeas
Corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. (Exhibit AB &C) alleging
ineffective assistance of counsel. On March 23"‘, 2015 the trial court entered an Order 011 Application
for Post Conviction Relief (Exhibit D). The court found that there were controveited issues that
“create a necessity for a hearing, but that the matter is capable of resolution by affidavit”. The court
ordered trial counsel to submit an affidavit confirming or denying the allegations by May 7”‘, 2015 and
further directed that trial counsel serve the undersigned post-conviction counsel with a copy of the
affidavit (trial counsel’s affidavit attached as exhibit E). Simultaneously the court issued an
Designating Issues (Exhibit F) finding that the issue of ineffective assistance of counsel required
resolution. Trial counsel failed to serve the undersigned counsel until March 20"‘, 2015 (trial
counsel’s letter to the undersigned is attached as Exhibit G). 10 days later the court issued an QlgI_er_
and Conclusions of Law (Exhibit H) recommending relief be denied based on the statement that trial
counsel “sufficiently rebuts all allegations made against him”. This court issued an order denying
applicant’s writs “on the findings of the trail court” (Exhibit I,J,K)
Memorandum
1. Motions filed pursuant to art.11.07 or art. 11.071 of the Texas Code of Criminal Procedure
and Rule 79.2gdt
Counsel is aware of the limitations imposed by this foregoing rule and therefore asks the court
to reconsider the denial sua spante based upon the issues and facts presented in this motion or
request.
2. Due process requires an evidentiarv hearing to resolve controverted facts where it is the
word of the defendant against the word of counsel; cross examination is foundational to
get to the truth in matters where is the word of trial counsel against the word of the
defendant.
If a trial court finds there are controverted, previously unresolved facts material to the legality of
applicant’s confinement, i.e., whether he received ineffective assistance of counsel, as the court in this
matter did, then these issues shall be resolved in a timely manner:
Coode of Criminal Procedure 11.07 art 3 (d): If the convicting court decides that there are
controverted, previously unresolved facts which are material to the legality of the applicant's
confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state
to reply, designating the issues of fact to be resolved. To resolve those issues the court may order
affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using
personal recollection
While this court gives deference to the manner in which a trial court gathers evidence due to the
wide variety of claims made in Habeas applications, matters which can only be resolved by a credibility
determination usually require a live hearing where the court can observe the witnesses and where the
statements of the witnesses can be subjected to effective cross examination. This court often orders
evidentiary hearings where the credibility of a witness in at issue. Ex Parre Brown, 205 SW. 3d 538
(Tex. Crim. App. 2006); Ex Pa/‘te Thompson, 153 S.W. 3d 416 (Tex. Crim. .App. 2005). This is
particularly important in claims of ineffective assistance of counsel where trial counsel flatly denies the
defendant’s allegations calling him a liar and responding with “not true” to each allegation of the
defendant. (see Exhibit E). The 11'“ circuit stated the problem well in Gallego v. United States, 174
F.3d 1196 (1
1“‘ Cir. 1999) “Where issues come down to the testimony of the defendant against the
contradictory testimony of counsel, the defendant is going to lose every time” Where there is a dispute
between the client and the attorney over what occurred the trial court is required to make a credibility
determination that can best be made after a live hearing. In Gallegos, the court pointed out that
“magistrate does not even state simply why the defendant’s lawyer is the more credible witness in this
case.”
Based upon the foregoing the applicant though counsel respectfully requests this court remand
the matter to the trial court for an evidentiary hearing where the completely contradictory statements of
the applicant and trial counsel may be tested by cross examination and the trial court can make a
credibility determination between the two.
Respectfully submitted,
By
Kenneth Eric Baker
SBN 24045439
Alamo Towers North
901 N.E. Loop 410, Suite 900
San Antonio, Texas 78209
210.226.4500 (P)
210.226.4502 (F)
Keb1aw@gmail.com
CERTIFICATE OF SERVICE
This to certify that a true and correct copy of the foregoing Motion
is was served upon the attorney
for the State and on the Trial Court on September 29"‘. 2015.
‘
Attenfiey for Applicant
Exhibit A
.
'
F ILEG.
Case N°- ' ONNA KAY MEKINNEY’
_ msrmcr CLERK
BEXAR COUNTY’
. .
(The Clerk of the convicting court Wlll fill tlns line In.)
INS MAR I
‘I
A l|= 05
IN THE COURT OF CRIMINAL APPEALS OF TEXAS DEPUTY
APPLICATION FOR A WRIT OF HABEAS CORPU§Y———V—-————~——T
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Lynwyatt Allen
DATE OF BIRTH: 01/25/1991
PLACE OF CONFINEMENT: Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX
TDCJ-CID NUMBER: _01935579 SID NUMBER: 1001292
(1) This application concerns (check all that apply):
xx a conviction N/A parole
xx a sentence N/A mandatory supervision
N/A time credit N/A out-of-time appeal or petition for
discretionary review
(2) What district court entered the judgment of the conviction you want relief from?
(Include the court number and county.)
186“ District Court, Bexar County
(3) What was the case number in the trial court?
Cause No: 2013CR5726
(4) What was the name of the trial judge?
Teresa Hen"
Effective: Januag 1, 2014 1
(5) Were you represented by counsel? If yes, provide the attorney's name:
Paul J. Goeke, SBN 08059250
(6) What was the date that the judgment was entered?
06/06/2013
(7) For what offense were you convicted and what was the sentence?
Intoxication assault 10 yrs
(8) If youwere 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 _xx_ guilty-plea bargain
not guilty
nolo contenders/no contest
If you entered different pleas to counts in a multi—count indictment, please explain:
(10) What kind of trial did you have?
NA no jury NA jury for guilt and punishment
NA jury for guilt, judge for punishment
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?
NA
(12) Did you appeal from the judgment of conviction?
_ yes xx no
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? NA
(B) What was the case number? NA
(C) Were you represented by counsel on appeal? If yes, provide the attorney’s
name:
NA
(D) What was the decision and the date of the decision? NA
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
NA yes NA no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? NA
(B) What was the decision and the date of the decision? NA
(14) Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction?
_ yes _xx_ no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals’ writ number?
(B) What was the decision and the date of the decision?
(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.
(15) Do you currently have any petition or appeal pending in any other state or federal
court?
yes xx 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 your administrative
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 xx 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 brief summary
of the facts. Ifyour grounds and briefsummary ofthefacts have not been presented on
the form application, the Court will not consider 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 you want to present legal
authorities, but theCourt will not consider grounds for relief set out in a
memorandum of law that 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:
Ineffective assistance of counsel
FACTS SUPPORTING GROUND ONE:
The attorney for Mr. Lynwyatt Allen (Defendant) pressured him into a plea. He was not
prepared to go to trial.
Just before trial a plea bargain was presented according to the following terms:
An Application for deferred adjudication and probation could be made and a 15 year cap. The
Attorney for the Defendant represented that no finding of a deadly weapon would be made and
That the Defendant would receive deferred adjudication because he was “eligible”. The
Defendant was actively mi-led by his attorney as to his application for probation being
Granted as well as in the matter of no deadly weapon finding being made. If the attorney had
properly advised the defendant that he might not receive deferred adjudication he would not
have entered a no-contest plea. If the defendant’s attorney had told the defendant that a deadly
weapon finding would be made he would not have entered his plea. I was specifically told there
would be no finding of a deadly weapon
GROUND TWO:
FACTS SUPPORTING GROUND TWO:
N Vi
A! /4
GROUND THREE:
AH/L
‘(\'
FACTS SUPPORTING GROUND THREE:
GROUND FOUR:
FACTS SUPPORTING GROUND FOUR:
A//(L
13
GROUND:
MA
VI
FACTS SUPPORTING GROUND:
MA
NW
15
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 application on his or her own behalf. A
petitioner is a person filing the application on behalf of an applicant, for example, an applicant=s
attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the AOath Before a Notary Public@ before a
notary public or the AInmate=s Declaration@ without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and
then complete APetitioner=s Information. @ A non-inmate applicant must sign the AOath Before a
Notaiy 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 AOath Before a Notary Public@
before a notary public and must also complete APetitioner=s lnformation.@ An inmate petitioner
must sign either the AOath Before a Notary Public@ before a notary public or the AInmate=s
Declaration@ without a notary public and must also complete the appropriate APetitioner=s
Information.@
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF Ecgg
/A
\£g,g_)/d<+‘\ Ea» being duly sworn, under oath says: AI am
,
the applieant / (circle one) in this action and know the contents of the above application
for a writ of habeas corpus and, according to my belief, the facts stated in the application are true.@
Signature of
27 one)
w
SUBSCRIBED AND SWORN T0 BEFORE ME THIS ‘L-“DAY ormdtvelt 20 if
.»~9/Q
.
~ v»
JOAQUIN ALBERYO
N
romzo. JR.
tary PubIic,State otlexos
OMV Commission Expives
June 17. 2018
Si g n
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16
PETITIONER=S INFORMATION
Petitioner=s printed name:
State bar number,
K9
if applicable: ZELO
ch»
l 5
Ea.
ii‘ 3
W
Address: T-F"J\5 Rd: 7??
éa ;LJJr~>~tu ‘rk 7.97.‘;
Telephotézf 93 ” Lfgod
Fax:
7'26 '
INMATE=S DECLARATION
I, , am the applicant / petitioner (circle one) and
being presently incarcerated in , declare under penalty of
perjury that, according to my belief, the facts stated in the above application are true and correct.
Signed on , 20 .
Signature of Applicant / Petitioner (circle one)
17
Exhibit B
HLEB
MNNA KAY MSKINNEY
Case No. DISTRICT CLERK
I
BEMR COUNTY
-
(The Clerk of the convicting court will fill this line in:
MR A "=05
.
1315 IT
IN THE COURT or CRIMINAL APPEALS OF TEXAS BEPUTY
APPLICATION FOR A WRIT OF HABEAS CORPUS i3Y__.____,._______
SEEIGNG RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Lynwyatt Allen
DATE OF BIRTH: 01/25/1991
PLACE OF CONFINEMENT: Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX
TDCJ-CID NUMBER: _01935579 SID NUMBER: 1001292
(1) This application concerns (check all that apply):
xx a conviction N/A parole
xx a sentence N/A mandatory supervision
N/A time credit N/A out-of—time appeal or petition for
discretionary review
(2) What district court entered the judgment of the conviction you want relief from?
(Include the court number and county.)
186"‘ District Court, Bexar County
(3) What was the case number in the trial court?
Cause No: 2013CR5727
(4) What was the name of the trial judge?
Teresa Herr
Effective: Januagg 1, 2014 1
(5) Were you represented by counsel? If yes, provide the attorney's name:
Paul J. Goeke, SBN 08059250
(6) What was the date that the judgment was entered?
06/06/2013
(7) For what offense were you convicted and what was the sentence?
Intoxication assault 10 yrs
(3) 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 _xx_ guilty—plea bargain
not guilty
nolo contemlere/no contest
If you entered different pleas to counts in a multi-count indictment, please explain:
(10) What kind of trial did you have?
NA no jury NA jury for guilt and punishment
NA jury for guilt, judge for punishment
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?
NA
(12) Did you appeal from the judgment of conviction?
__ yes XX 110
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? NA
(B) What was the case number? NA
(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:
NA
(D) What was the decision and the date of the decision? NA
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
NA yes NA no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? NA
(B) What was the decision and the date of the decision? NA
(14) Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction?
__ yes _xx_ no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals’ writ number?
(B) What was the decision and the date of the decision?
(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.
(15) Do you currently have any petition or appeal pending in any other state or federal
court?
yes XX___ [10
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 your administrative
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 XX [10
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 brief summary
of the facts. Ifyour grounds and briefsummary of thefacts have not been presented on
the form application, the Court will not consider 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 you want to present legal
authorities, but theCourt will not consider grounds for relief set out in a
memorandum of law that 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:
Ineffective assistance of counsel
FACTS SUPPORTING GROUND ONE:
The attorney for Mr. Lynwyatt Allen (Defendant) pressured him into a plea. He was not
prepared to go to trial.
Just before trial a plea bargain was presented according to the following terms:
An Application for deferred adjudication and probation could be made and a l5 year cap. The
Attorney for the Defendant represented that no finding of a deadly weapon would be made and
That the Defendant would receive deferred adjudication because he was “eligible”. The
Defendant was actively mi-led by his attorney as to his application for probation being
Granted as well as in the matter of no deadly weapon finding being made. If the attorney had
properly advised the defendant that he might not receive deferred adjudication he would not
have entered a no—contest plea. If the defenda.nt’s attorney had told the defendant that a deadly
weapon finding would be made he would not have entered his plea. I was specifically told there
would be no finding of a deadly weapon
GROUND TWO:
FACTS SUPPORTING GROUND TWO:
N \A
M /4
GROUND THREE:
.«H/‘«
1 \'
FACTS SUPPORTING GROUND THREE:
I\J\A«
I
[
GROUND FOUR:
FACTS SUPPORTING GROUND FOUR:
N1 ?
13
GROUND:
IMA
FACTS SUPPORTING GROUND:
MR
14
N UL
I5
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 application on his or her own behalf. A
petitioner is a person filing the application on behalf of an applicant, for example, an app1icant=s
attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the AOath Before a Notary Public@ before a
notary public or the Alnmate=s Declaration@ without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and
then complete APetitioner=s lnforrnation.@ A non—inmate applicant must sign the AOath 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—attomey petitioner must sign the AOath Before a Notary Public@
before a notary public and must also complete APetitioner=s Information.@ An inmate petitioner
must sign either the AOath Before a Notary Public@ before a notary public or the AInmate=s
Declaration@ without a notary public and must also complete the appropriate APetitioner=s
Information.@
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
W
~
COUNTY OPE;
E
}_Q_I;K
#45114 (,fL being duly sworn, under oath says: AI am
,.—. ,
the applicant / u (circle one) in this action and know the contents of the above application
o
'
for a writ of habeas corpus and, according to my belief, the facts stated in the plication are true.@
~
Signatur of one)
SUBSCRIBED AND SWORN TO BEFORE ME THIS “DAY OF ESQVC/l\ 20 .-ST.‘
~
, [
1
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"'~’.,$’,‘..{\‘-*‘
moum ALBERIO TORANZO.
Notary Public, Stove of lexos
My Commission Expires
June 17. 2018
JR.
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Slgnature of
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16
PETITIONER=S INFORMATION
Petitioner=s printed name: My ,J A) L114 EC \¢Q/
State bar number, if applicable: ‘i 3 6‘
Address: i S TFWJ *5 3+ 4*‘
337
S»! \>< 79205
Telephongf1.9’) 226" 35 0 L7’
Fax:
(Z//9,) Z26 P #501
INMATE=S DECLARATION
I, , am the applicant / petitioner (circle one) and
being presently incarcerated in , declare under penalty of
perjury that, according to my belief, the facts stated in the above application are true and correct.
Signed on , 20
Signature of Applicant / Petitioner (circle one)
17
Exhibit C
Ff.l.-AE§t.'=!.
«
. A
.
(The Clerk ofthe convicting court will fill this line in.) ‘min ceuntrv
INS MAR ‘I
'l
A ll: 05
IN THE COURT or CRIMINAL APPEALS or TEXAS .
DEPUTY
APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Lynwyatt Allen
DATE OF BIRTH: 01/25/1991
PLACE OF CONFINEMENT: Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX
TDCJ-CID NUMBER: _01935579 SID NUMBER: 1001292
(1) This application concerns (check all that apply):
xx a conviction N/A parole
xx a sentence N/A mandatory supervision
N/A time credit N/A out-of-time appeal or petition fo
discretionary review -
(2) What district court entered the judgment of the conviction you want relief from?
(Include the court number and county.)
186“ District Court, Bexar County
(3) What was the case number in the trial court?
Cause No: 20 I BCR5726
(4) What was the name of the trial judge?
Teresa Herr
Effective: January 1, 2014 1
(5) Were you represented by counsel? If yes, provide the attorney's name:
Pau.l J. Gocke, SBN 08059250
(5) What was the date that the judgment was entered?
06/06/2013
(7) For what offense were you convicted and what was the sentence?
Intoxication assault 10 yrs
(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
_
_xx__
not guilty
nolo contemiere/no contest
If you entered different pleas to counts in a multi-count indictment, please explain:
(10) What kind of trial did you have?
NA no jury NA jury for guilt and punishment
NA jury for guilt, judge for punishment
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?
NA
(12) Did you appeal from the judgment of conviction?
_ yes xx no
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? NA
(B) What was the case number? NA
(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:
NA
(D) What was the decision and the date of the decision? NA
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
NA yes NA no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? NA
(B) What was the decision and the date of the decision? NA
(14) Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction?
_ yes _xx_ no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals’ writ number?
(B) What was the decision and the date of the decision?
(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.
(15) Do you currently have any petition or appeal pending in any other state or federal
court?
yes xx_ 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 your administrative
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 xx 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 brief summary
of the facts. Ifyour grounds and briefsummary of thefacts have not been presented on
the form application, the Court will not consider 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 you want to present legal
authorities, but the Court will not consider grounds for relief set out in a
memorandum of law that 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:
Ineffective assistance of counsel
FACTS SUPPORTING GROUND ONE:
The attorney for Mr. Lynwyatt Allen (Defendant) pressured him into a plea. He was not
prepared to go to trial.
Just before trial a plea bargain was presented according to the following terms:
An Application for deferred adjudication and probation could be made and a 15 year cap. The
Attorney for the Defendant represented that no finding of a deadly weapon would be made and
That the Defendant would receive deferred adjudication because he was “eligible”. The
Defendant was actively mi—led by his attorney as to his application for probation being
Granted as well as in the matter of no deadly weapon finding being made. If the attorney had
properly advised the defendant that he might not receive deferred adjudication he would not
have entered a no-contest plea. If the defendant’s attorney had told the defendant that a deadly
weapon finding would be made he would not have entered his plea. I was specifically told there
would be no finding of a deadly weapon
GROUND TWO:
FACTS SUPPORTING GROUND TWO:
W Vi
GROUND THREE:
M/‘«
FACTS SUPPORTING GROUND THREE:
N //L
GROUND FOUR:
FACTS SUPPORTING GROUND FOUR:
N: P
13
GROUND:
4MA
FACTS SUPPORTING GROUND:
M/x
15
WHEREF ORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDIN G.
VERIFICATION
This application must be verified or it will be dismissed for non—compliance. For
verification purposes, an applicant is a person filing the application on his or her own behalf. A
petitioner is a person filing the application on behalf of an applicant, for example, an applicant=s
attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the AOath Before a Notary Public@ before a
nota.ry public or the AInmate=s Declaratione without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and
then complete APetitioner=s Information. @ A non~inmate applicant must sign the AOath 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 AOath Before a Notary Public@
before a notary public and must also complete APetitioner=s Information.@ An inmate petitioner
must sign either the AOath Before a Notary Public@ before a notary public or the Alnmate=s
Declaratione without a notary public and must also complete the appropriate APetitioner=s
Information.@
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF ECEC
iéq Al/d -4
the app]-ieant / (circle
E Q
one)
in this
Q ,being duly sworn, under oath says: Al am
action and know the contents of the above application
for a writ of habeas corpus and, according to my belief, the facts stated in the application are true.@
-
Sigzéfie of one)
W
SUBSCRIBED AND SWORN TO BEFORE ME THIS
@
I
é-1(I\DAY OF/Y\I»‘{V’&j‘\ 20 {ST .
~~ ....
' 415"’: JOAQUIN ALBERTO IORANZO.
otorv Public.
My Commission
June I
5*°"~’~‘
7.
JR.
°' 79°‘
Expires
201 8
Si g n
«
ure ot my Pu
PETITIONER=S INFORMATION
Petitioner=s printed name: Kfl Cf!" E4 KC/
State bar number, if applicable: -ZE-‘:0 i S 1
3
Address: E ‘T.{~"’J\$ 7* 7?:
éw Mme, “TX 7327
TeIepho£7/ ”\) " [+300
Fax:
126 ~
INMATE=S DECLARATION
I9 , am the applicant / petitioner (circle one) and
being presently incarcerated in , declare under penalty of
perjury that, according to my belief, the facts stated in the above application are true and correct.
Signed on , 20
Signature of Applicant / Petitioner (circle one)
17
Exhibit D
NO. 20l3CR5726-W1
2013CR5727—W1
20] 3CR2728-W]
EX PARTE § IN THE DISTRICT COURT
§ 186” JUDICIAL DISTRICT
LYNWYATT ALLEN § BEXAR COUNTY, TEXAS
ORDER ON APPLICATION FOR POST CONVICTION WRIT
The Court having concluded that the allegations of ineffective assistance of counsel
contained in an
application for a post-conviction writ of habeas corpus create a necessity
for a hearing, but that the
matter is capable ofresolution by means of affidavits, it is ORDERED,
as follows:
That the Clerk forward a copy ofthe writ application and its attachments to Paul Joseph Goeke,
115 E. Travis St., Suite 1145, San Antonio, Texas 78205.
l. That, on or before May 07, 2015, Paul Goekc file with this
court his written afiidavit
confirming or denying the allegations of ineffective assistance.
a. Please respond to Applicanfs allegations regarding the
claims of ineffective
assistance of counsel, including, but not limited to, the following:
(I) Counsel pressured Applicant into taking a plea because he was not prepared
to go
to trial.
(2) Applicant was misled by Counsel as to his application for probation
being
granted as well as in the matter of no deadly weapon finding being
made.
(3) Had Counsel properly advised the Applicant that he might not
receive deferred
adjudication he would not have entered a no—c0ntest plea.
(4) Counsel specifically told Applicant that there would be no
finding of deadly
weapon.
After you have reviewed the Ap_plicant’s writ application,
please address any other
issues raised by Applicant not specifically listed
above and of which you have
knowledge or information. 7
If there is
any additional information not present before the court at this time that is
relevant to the court’s understanding of this matter,
please include any such
information to clarify this issue.
Simultaneously, Paul Goeke shall deliver the affidavit and summation to Attorney for
Applicant Kenneth Eric Baker, 115 E. Travis, Suite 333, San
Antonio, Texas 78205.
After these matters have occurred, this Court will forward
its Order including its findings to the
Court of Criminal Appeals for its disposition of the matter.
information contained in an affidavit filed pursuant to this order
does not represent a violation of
the attorney—client privilege. See TEX. R. EVID.
503(cl)(3)(stati.ng that communications relevant
to issues concerning breach of counsel’s
duty to his client represents an exception to the rule
governing attorney~client privilege).
Failure to abide by this order is subject to a charge of contempt.
SIGNED and ENTERED this“ ~ ‘,1
;’;f/1'1/<5‘
day of '-/M!”
5
'5
\
,
/‘
~
20:1
~
~ ’JE’F:;FE}iSON
W Judge
exar County, Texas
MOORE
186"‘ Judicial District Court
g,r
cc:
Attorney for Applicant
Kenneth Eric Baker
115 E. Travis, Suite 333
San Antonio, Texas 78205.
Exhibit E
THE STATE OF TEXAS
COUNTY OF BEXAR
¢»O'3€03€O7
BEFORE ME, the undersigned authority, on this day personally Paul J. Goeke, who,
being duly sworn, deposed as follows:
Undersigned counsel has been directed by the District Court to provide an
affidavit in response to a Pro Se Writ of Habeas Corpus filed by Lynwyatt Allen.
In response to this Honorable Court's order of 23rd day of Mag 2015 please
find the following: [
Objection: This Honorable Court’s order violates the attorney-client privilege. In
anticipation of this objection, the Court observes in the order that this Writ of Habeas
Corpus alleges a breach of an attomey’s duty to a client and an exception to the privilege
is created by Texas Rules of Evidence 503(§) (3). With the objection anticipatorily
overruled, please find the following:
In the following affidavit, undersigned counsel does not use the more formal
construct of describing the affiant as “undersigned counsel”, but adopts the less awkward
colloquial use of the first person.
1(a)(1): The Applicant alleges that “Counsel pressured Applicant into taking a plea
because he was not prepared to go to trial”.
Response to 1(a)(1): Not True.
Applicant was in no way pressured into taking a plea.
The original plea bargain offer to Applicant had been a flat fifteen (15) year
sentence on the intoxication manslaughter indictment, and a ten (10) year sentence on
each of the intoxication assault indictments with an affirmative finding of the use of a
deadly weapon, all to run concurrently. This offer did not change until immediately
before trial. The prosecutor had changed from Assistant District Attorney (Mr.) David
Henderson to Assistant District Attorney (Mr.) Eric Fuchs. It was Mr. Fuchs who relented
on the day of trial by offering a 15 year "cap" without requiring the Court to make a
finding of the use of a deadly weapon, thus allowing Applicant to apply for adjudicated
(regular) community supervision. This offer made possible a sentence of less than fifteen
years without an affirmative finding leading to earlier parole eligibility. The likelihood of
adjudicated community supervision being granted was described to Applicant as being
extremely remote.
I was completely prepared ‘to go to jury trial.
I had retained Dr. Michael Arambula, a highly qualified forensic psychiatrist, who
subsequently testified at Applicant's sentencing hearing in much the same manner as he
A
would have testified in a jury trial. In addition to being a forensic psychiatrist, Dr.
Arambula has an advanced post doctorate in Pharmacy (referred to as a Pharm D.) This
unique combination makes Dr. Ararnbula among the most highly qualified to testify with
regard to psychopharmacology, the study of effects of alcohol and other chemicals on the
A
mind and body.
The assertion that I was not prepared for trial is demonstrably ludicrous, as
evidenced by the testimony of this expert witness and several character witnesses from
out of town during the sentencing hearing that resulted from his voluntary plea. These are
_
the very witnesses who would have testified to a jury. Based upon the unraveling of the
initial defense and the changing of the plea offer to a “cap” with the option of the court
not entering an affirmative 3(g) finding, Applicant made an intelligent and fully informed
decision to waive a jury and enter a plea bargain agreement.
Each of the very witnesses that I would have used in his jury trial testified
in his sentencing hearing. They would not have done so were I not prepared for trial. He
simply wisely decided to limit his exposure, as the truth of his behavior became
unavoidable.
1(a)(2): Applicant alleges that “Applicant was misled by Counsel as to his
application for probation being granted as well as in the matter of no deadly
weapon finding being made”.
Response to 1(a)(2): Not True.
This is a complete and utter falsehood. The Applicant was always informed that
the possibility of probation from the court was extremely remote. Applicant was advised
that the main benefit of this plea bargain was that the sentences were certain to run
concurrently and that there was a possibility that the Hon. Judge Herr would be
somewhat solomonic with regard to the “cap” of fifteen (15) years and the full range of
punishment, each offense having a minimum sentence of two (2) years. Unfortunately for
Applicant, the prosecution successfully countered this possibility by literally "packing the
courtroom" with fiiends and family of the decedent and complainants.
One complainant had been extremely disfigured in the collision, a fact which the
prosecution underlined by displaying a “before” photo showing that he had previously
been “movie star” handsome. His live testimony then made his unfortunate disfigurement
obvious.
This case was unique in my experience in that the head-on collision leading to the
death and injuries was actually captured on the dashboard camera of a patrol car. The
police officer was responding to reports of Applicant’s vehicle traveling on the wrong
side of the highway for a long distance, almost striking other drivers who then phoned
911.
The officer testified that he was rushing to the scene to intercept Applicant by
"bumping" him off the road before such a tragedy as this could occur. This unique
situation led to the actual capture of the violent head—on collision between the victims’
and Applicant’s trucks on that officer's "dash cam".
I relate this event in order to explain the environment in which Judge Herr was
required to pronounce sentence. When the video of the collision was played in open
court, a relative of one of the victims ran from the courtroom, loudly retching; a dramatic
occurrence which dominated the subsequent news coverage. This, combined with
Applicant's poor testimonial performance and other aspects of this case led to the
growing inevitability of the maximum sentence being pronounced in open court in the
presence of the many friends and family of the dead and disfigured victims.
1(a)(3): Applicant alleges that “had Counsel properly advised the Applicant that he
might not receive deferred adjudication he would not have entered a no-contest
plea”.
Response to 1(a)(3): Not True.
Again, a complete and utter falsehood. Since my licensure in 1983, deferred
adjudication has not been available even for simple DWI and with the subsequent
creation of the Penal Code offenses of Intoxication Assault and Intoxication
Manslaughter in the 73"’ legislature (effective September 1, 1994), deferred adjudication
has never been available for these offenses as well. These matters were explained to
Applicant and his family at length and in detail in response to their initial inquiries
regarding the potential for plea bargaining and sentencing from the beginning of my
representation.
Applicant was initially (and throughout my representation) completely and clearly
informed of the sentencing realities pursuant to Texas Law and that he could not receive
the use of a
deferred adjudication for these offenses under any circumstance and that with
deadly weapon being formally alleged, he could only receive probation (adjudicated
community supervision) from a jury after a trial.
topic of deferred adjudication never arose in conjunction with the discussion
of the
The
plea bargain offer.
1(a)(4): Applicant alleges “Counsel specifically told Applicant that there would be
no finding of deadly weapon”.
Response to 1(a)(4): Not True. Applicant had always been told that the trial court could
not grant probation in the presence of an affirmative finding of the use
of a deadly
weapon.
Again, a complete and utter falsehood. The Applicant was advised that there was
in a judgment
a possibility that Judge Herr might not enter a deadly weapon finding
sentencing him to prison. He was advised that, under the right circumstances, Judge Herr
"splitting the baby",
might reward him for having waived a jury and entering a plea by
with a sentence less than the maximum and/or by possibly not entering a deadly weapon
finding in the judgment.
It should be noted that up until the time of impending jury selection, the offer had
been a flat 15 years to do, (not a cap) with an affirmative finding of the use of a deadly
weapon. In a jury trial, Applicant was faced with the possibility of being denied probation
by the jury and then facing with the possibility of Judge Herr ordering any jury sentences
to be run consecutively. It is because the plea changed to a "cap" of 15 years concurrent
without the requirement that the court enter a deadly weapon finding and the resulting
possibility of a sentence under the cap and/or without a deadly weapon finding, that
Applicant elected to enter into a plea bargain agreement. Again, the possibility of
community supervision from the court was always described to Applicant as being
extremely remote.
Pursuant to this Honorable Court's Order at 1(b) please find the following: After
you have reviewed Applicant’s writ application, please address any other issues
raised by Applicant not specifically listed above and of which you have knowledge
or information:
Response to 1(b): Not Applicable
Pursuant to this Honorable Court's Order at 1(c) please find the following:
This Honorable Court instructs that if there is any additional information not
present before the court at this time that is relevant to the courts understanding of
this matter, please include any such information to clarify this matter, Pursuant to
this order, please find the following:
Placing this case in full context will help the court to understand the unique
A
dynamics involved leading up to Applicant’s plea.
I was a zealous and committed advocate for Applicant from the moment his father
Bob Allen first appeared in my office until the time that I was unforrned that Applicant
had filed a gm s_e__ writ of habeas corpus challenging my effectiveness.
Mr. Allen came to me concerned that his son (Applicant) would be irrevocably
injured were he to be moved to general population in the Bexar County Jail. Applicant
had received a cervical fracture in the collision which led to his arrest. This fracture
placed him at risk for spinal cord injury in the violent atmosphere of Bexar County Jail
general population.
Despite the fact that Mr. Allen could not pay me, I put aside other work and
sought Applicant’s release from custody on personal recognizance. I was successful in
this regard.
I told Mr. Allen at the time that Applicant’s only hope for probation was fi'om a
jury, given the death and severity of injuries he had caused. The plan from the outset was
trial by jury.
Mr. Allen described his son as young and inexperienced, not given to drinking
alcohol and the type of drinker who would not even finish a beer. Mr. Allen described
how his son had become romantically involved with an older woman and that this
involvement lead to an episode of drinking with her friends during which he had become
When he was left behind by the group, he had drunkenly found his way to his
'
intoxicated.
truck, driven off and caused the fatal accident.
I determined to present the mitigating aspects of this scenario to a jury hoping for
probation under the circumstances. In this regard, I hired Dr. Michael Arambula, a
forensic psychiatrist and Pharm D, making him authoritative in psychopharmacology (the
effect of drugs and alcohol on the mind). I also planned to present individuals who knew
Applicant as an inexperienced non-drinker-whose naiveté would be viewed as mitigating
by the jury.
As the case progressed however, it became apparent that Mr. Allen’s version of
the event was a complete fiction.
A picture emerged that Applicant had in fact started drinking heavily in this new
relationship and had probably embarrassed his girlfriend with his drunken behavior on
the night in question. When she sought to have him stay behind to “sleep it off’, he
experienced this as an humiliating abandonment by his “first love”, became suicidal and
tried to “end it all” by intentionally driving down the wrong side of the highway without
regard to the innocent lives he might effect thereby.
The initial medical records brought to me by Applicant’s father were consistent
with the false story he gave me about Applicant’s naiveté with alcohol. As trial
approached, I obtained more complete records in discovery that revealed Applicant’s
growing history of alcohol abuse, records in which he admitted periodic binge drinking
leading up to the offense in question and a developing alcoholism consistent with his
family history and one which he had been desperate to conceal from them.
Applica.nt’s mother is Native American. Her brother's alcohol addiction led to
multiple DWI arrests, imprisonment and eventual death from acute alcohol poisoning. I
expressed my concerns that (1) this had been withheld from me (2) with the well-known
genetic basis for alcoholism and (3) how incompatible this was with his defense of
na‘1’vete'. As trial approached and l inquired about the witnesses with whom he was
drinking on the night of the accident, it became clear that their presence would further
undermine his claims of inexperience and seal his fate.
I was forced to adapt my trial strategy to conceal these truths from the
prosecution. As it was, Applicant and I were careful to structure his testimony to avoid
any mention of his former girlfriend's name, a commercial photographer with a webpage
who could easily be found on the Internet by a quick thinking prosecutor. It was evident
that had the prosecution made contact, it would have led to disastrous results.
The Sentencing Hearing
While I was prepared to present mitigation to Judge Hen‘ in the sentencing
hearing, I had not anticipated how effectively the prosecution would counter this by
literally packing the courtroom with the friends and family of the victims. This seemed to
place sociopolitical pressure on the sentencing judgesl informed Applicant that I might
be able counter this during the 30-day period of continuing jurisdiction.
It is true that I did not expect or predict that Judge Herr would give Applicant no
leniency at all under the terms of the plea bargain agreement, sentencing him to the
maximum allowed under the "cap". This likelihood only developed during the sentencing
hearing. I believe that the Honorable Judge Herr may have experienced some political
"pressure" from the packed courtroom and the above-described events. Subsequent
'
developments lend credence to this theory: Judge Herr later did manifest significant
leniency (when not in open court) by actually granting Applicant significant credit for
time served while on electronic monitoring, as though Applicant had served that time in
the county jail when in fact he had not, credit to which he was simply not entitled under
the law.
Such a grant of leniency was specifically addressed and found to be unauthorized
in Tagorda vs. State 977 SW2d 632 (Ct. App.— Ft. Worth) (1998). This leniency was thus
quietly expressed in a subsequent amended judgment modifying (in private) the original
judgment entered by Judge Herr and thus was not announced in open court and not
readily apparent to the aforementioned crowd of family and friends. I had hoped that
Judge Herr would also elect to refrain from making an affirmative 3(g) finding in the
judgment. The latter was not to be, however.
I believe the resulting amended judgment legitimizes my belief that the Hon.
Judge Herr was uncharacteristically harsh in her open court actions, something that I
could not have reasonably predicted prior to the actual hearing. I advised Applicant of my
growing concerns at counsel table during the hearing. I also advised him of the trial
court’s continuing jurisdiction and control over the contents of the actual judgment as
opposed to her pronouncements in open court. Her maximum sentence of 15,10, and l0
years respectively with an affirmative finding of the use of a deadly weapon were all
pronounced in open court. Her leniency was expressed privately in an amended
judgment. I had approached Judge Herr in open court several days after the sentencing
hearing and asked her to consider these alternatives. The prosecutor in attendance at the
time did not comment on the request.
In this affidavit, I have expressly described each of Applicant's assertions as
complete and utter falsehoods for a reason: it is because they are complete and utter
falsehoods and because he knows that they are.
I was a zealous advocate for Applicant before, during and after his trial zmd I am
therefore somewhat mystified by the completely baseless claim of Ineffective Assistance
10
of Counsel, particularly because Applicant was advised of a legitimate avenue for
seeking a new trial.
After his sentencing, Applicant and his family were repeatedly informed of the
thirty (30) day motion for new trial jurisdiction and were urged by me to contact
experienced Board Certified Criminal Law Specialists in order to attempt to set aside the
resulting sentence. I received a number of calls from qualified lawyers and spoke with
several experienced criminal defense lawyers about areas of possible post-conviction
relief and my willingness to assist in this regard.
For example, this case was extensively litigated in a pretrial motion to suppress
regarding the validity of the warrantless blood draw. That motion was overruled by the
court. It is highly likely that the trial court was in error in that regard. The prosecutor at
the time (Mr. Fuchs) confided in me his concern that my suppression argument was valid
and his fear that the judgment could be overturned on appeal whenl structured the plea in
such a way as to preserve Applicant's right to appeal rulings on pretrial motions. In
response to my having structured the plea to appeal the motion to suppress, the
prosecutor supplemented the stipulations in a way he believed would defeat such an
appeal.‘ That avenue was not pursued then, due to the pendency of the above described
credit for time served. However, it should have been raised in this writ of Habeas Corpus
by seeking an out of time appeal in that regard, as that issue would in my opinion have a
high likelihood of success, certainly higher than that of a patently absurd claim of
1
in addition to the forensic blood draw, the state had hospital records with plasma alcohol concentrations
based on clinical laboratory analysis. The prosecutor supplemented the stipulations with these hospital
records, erroneously believing such supplementation would defeat the appeal of the pretrial motion. It
would not. The case law establishes that, if Applicant's decision to enter a plea bargain agreement was in
any way influenced by the court's erroneous ruling on the motion to suppress, relief should be forthcoming.
My original trial plan was to challenge the hospital blood draw pursuant to the holding of Bullcoming v.
New Mexico, 131 S.Ct. 2705 (201 1) and the absence of the hospital technician.
'
ll
ineffective assistance of counsel. The Applicant's post-conviction pursuits would have
been better placed in that regard and why that has been abandoned is beyond me except
fO1‘AppliCant'S acting 2r_o _s_§ and without competent legal advice in this regard.
I had previously advised Applicant and his family of the post-conviction strategy
of seeking an out of time appeal challenging the denial of the motion to suppress. I had
explained that Applicant could file a motion for new trial and/or give notice of appeal
regarding the motion to suppress ruling. I also explained that doing so might draw
attention to the unauthorized credit for time served and cause an interested prosecutor to
challenge this credit.2
There also remained the possibility of the trial court reconsidering the deadly
weapon finding by removing or omitting it in the judgment. As it developed, the trial
court amended the judgment by awarding credit for time served. Judge Herr actually did
this after her jurisdiction had expired in a manner which could now (and then) be
challenged as invalid. Unfortunately, the affirmative finding of the use of a deadly
weapon remained. The better strategy for Applicant would have been to employ
experienced counsel and seek an out of time appeal of the motion to suppress through a
post conviction writ of habeas corpus, a strategy which is probably now foreclosed by the
“one writ rule”. By acting gm _s§ and not following my advice, he has (1) lost a legitimate
challenge to his conviction and (2) threatened the continuing viability of his unauthorized
credit for time served. If the prosecution now challenges that credit for time sewed, he
will probably lose it. Additionally, he will not be able to challenge the trial court’s
2
I had discussed this dilemma with Applicant during the period of continuingjurisdiction by the trial court.
Because the attorney client relationship became contentious, I reduced part of this advice to writing and
delivered it to Applicant in jail. See Attached Exhibit A.
12
erroneous denial of his motion to suppress the warrantless blood draw, thus ruling
out
any further challenge to his sentence.
Undersigned counsel will respond further as directed by the court.
I declare the foregoing to be true and correct under penalty of perjury.”
R)
"Further affiant sayeth not."
Paul J’.
Goeke
SWORN AND SUBSCRIBED to before me this
to certify which witness my hand and seal of office.
1 5)»
day of 2015,
Notary Public, State of Texasfl
County of Bexar
13
Exhibit F
NO. 2013CR5726-W1
20]3CR572’7~W.l
2013CR5728-‘W1
EX PART § IN THE DISTRICT COURT
§ 186” JUDICIAL DISTRICT
L-YNWYATT ALLEN ‘
§ BEXAR COUNTY, TEXAS
ORDER DESIGNATING ISSUES
The Court having concluded that controverted, previously unresolved facts which are
material to the legality of Applicant's confinement exist and need to be resolved, there is a
necessity for the suspension of the time limitations enunciated in Article 1 l.O7 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(d) (West
2012).
Applicant has alleged the following issue which the court finds requires resolution:
21. lneffeetive Assistance of Counsel
Findings will be forwarded to the Court of Criminal Appeals for its disposition of the
matter.
SIGNED and ENTERED on iii- /£17.
ON MOORE
Judfgef’.l'86"‘ Judicial District Court
County, Texas
Exhibit G
PAUL J. GOEKE
ATTORNEY AT LAW
MILAM BUILDING, SUITE H45
I5 E. TRAVIS STREET
I
SAN Ax-roxro, Texas 73205-1755
(2 IO) 222-2959
acme cermruzo
CRIMINAL LAW SPECIALIST "W ‘2 '°’ 333'°°53 MEMBER COLLEGE OF THE
TEXAS BDARD or LEGAL s9:ciAI.IzA\'IoN RES: (2 IO) 495-SI44 STATE BAR OF TEXAS
May 20, 2015
VIA HAND DELIVERY
Kenneth Baker
115 E. Travis, Ste. 333
San Antonio, Texas 78205
RE: State of Texas v. LynwyattAIlen,' Cause Nos. 201 3~CR—5 726, 20] 3-CR—5 72 7,
201 3-CR-5 728
Dear Sir:
Enclosed please find one (1) copy of the Affidavit in Response to the pr_o se writ
of Habeas Corpus to be filed in the above referenced matter. Please excuse the delay in
sending your copy.
Should you have any questions please do not hesitate to contact this office.
Sincerely,
Paul J. Goeke
Attorney at Law
Eric.
OF COUNSEL
BENNIE E. RAY J. GARY TRICHTER 1\<[m:E MCCOLLUM
7Io w, mm smear,
sun‘: c 2000 smm-4 smear CENTRAL EXPRESSWAY. SUITE 304
an is N.
Ausrm, TEXAS 78701 HOUSTON, TEXAS 77002 DALLAS, TEXAS 75206
I-500-DWI-IDIO ~ (5:2) 479-7775 I-eooowl-iolo I-BODDWI-IOIO - (EM) 69!-3975
fiARV@l’EXASD\NILAW.COM <www.1':xAsuwn.Aw.I:aM
Exhibit H
.lllHillllllllllllllllllllA
‘NO. 2013C R5726-W1
20l3CR5727-W1
20l3CR5728-W1
EX PARTE § IN THE DISTRICT COURT
§ 1ss“‘ JUDICIAL DISTRICT
LYNWYATT ALLEN § BEXAR COUNTY, TEXAS
ORDER
Applicant, Lynwyatt Allen, has filed a pro se application for a post-conviction writ of
habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure, collaterally
attacking his conviction in cause number 20l3CR5726; 20l3CR5727; 20l3CR5728. TEX. CODE
CRIM. PROC. art. 1 1.07 (West 2012).
HISTORY OF THE CASE
On or about June 6, 2013, Applicant plead guilty to the offense of intoxication assault.
Applicant was sentenced to ten (10) years confinement in the Texas Department of Corrections -
lnstitutional Division. Applicant did not file a direct appeal. This application for writ of habeas
corpus was filed on March l7, 2015. The District Attorney received a copy of this application on
March 18, 2015.
ALLEGATIONS OF APPLICANT
1. In App|icant’s sole ground for relief, Applicant alleges ineffective assistance of counsel.
~
0 Specifically, Applicant alleges that Trial Counsel and
represented that no finding of a deadly weapon would be made and that Applicant
would receive deferred adjudication because he was “eligible." Also, Trial Counsel
misled Applicant to believe that his application for probation was being granted and
had Trial Counsel informed Applicant that he would not receive probation and that a
t-I
fitiiili
deadly weapon finding would be made, he would not have entered a no-contest plea.
FINDINGS OF FACT
l. On or about June 6, 2013, Applicant plead guilty to the offense of intoxication assault.
Applicant was sentenced to ten (10) years confinement in the Texas Department of
Corrections — Institutional Division.
2. Applicant did not file a direct appeal.
3. The trial court requested and received an affidavit from Applicant’s Trial Counsel, Paul J.
Goeke (Attachment: Affidavit). Although the court finds the affidavit credible, the court
takes issue with portions of the affidavit in which the affiant speculates as to the court’s
ems. ~$____,-_._..___...., ,
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decisions for ce_rt_ain rulings.
3. “The original plea bargain offer to Applicant had been a flat fifteen (15) year
sentence on the intoxication manslaughter indictment, and a ten (l0) year sentence
on each of the intoxication assault indictments with an affirmative finding of the
use of a deadly weapon, all to run concurrently. This offer did not change until
immediately before trial. The prosecutor had changed from Assistant District
Attorney (Mr.) David Henderson to Assistant District Attorney (Mr. ) Eric Fuchs.
It was Mr. Fuchs who relented on the day of trial by offering a 15 year “cap”
without requiring the Court to make finding of the use of a deadly weapon, thus
allowing Applicant to apply for adjudicated (regular) community supervision.
This offer made possible a sentence of less than fifteen years without an
affinnative finding leading to earlier parole eligibility. The likelihood of
adjudicated community supervision being granted was described to Applicant as
being extremely remote. I had retained Dr. Michael Arambula, a highly qualified
forensic psychiatrist, who subsequently testified at App1icant’s sentencing hearing
in much the same manner as he would have testified in ajury trial. In addition to
being a forensic psychiatrist, Dr. Arambula has an advanced post doctorate in
Pharmacy (referred to as a Pharm D.) This unique combination makes Dr.
Arambula among the most highly qualified to testify with regard to
psychopharmacology, the study of effects of alcohol and other chemicals on the
mind and body. The assertion that I was not prepared for trial is demonstrably
\f131|3P1S7S
ludicrous, as evidenced by the testimony of this expert witness and several
character witnesses from out of town during the sentencing hearing that resulted
from his voluntary plea. These are the very witnesses who would have testified to
ajury. Based upon the unraveling of the initial defense and the changing of the
plea offer to a “cap” with the option of the court not entering an affirmative 3(g)
06112015
finding, Applicant made an intelligent and fully informed decision to waive ajury
and enter a plea bargain agreement. Each of the very witnesses that would have
used in his jury trial testified in his sentencing hearing. They would not have done
so were I not prepared for trial. He simply wisely decided to limit his exposure, as
the truth of his behavior became unavoidable. ”
. “This is a complete and utter falsehood. The Applicant was always informed that
the ossibili of pro Eatron from the court was extremely remote. Applicant was
run concurrently and that there was a possibility that the Hon. Judge Herr would
be somewhat solomonic with regard to the “cap” of fifteen (15) years and the full
range of punishment, each offense having a minimum sentence of two (2) years.
Unfortunately for Applicant, the prosecution successfully counters this possibility
by literally “packing the courtroom” with friends and family of the decedent and
complainants. One complainant had been extremely disfigured in the collision, a
fact which the prosecution underlined by displaying a “before” photo showing that
he had previously been “movie star” handsome. His live testimony then made his
unfortunate disfigurement obvious. This case was unique in my experience in that
the head-on collision leading to the death and injuries was actually captured on the
dashboard camera of a patrol car. The police officer was responding to reports of
Applicant’s vehicle traveling on the wrong side of the highway for a long
distance, almost striking other drivers who them phoned 911. The ofiicer testified
that he was rushing to the scene to intercept Applicant by “bumping" him off the
road before such a tragedy as this could occur. This unique situation led to the
actual capture of the violent head-on collision between the victims’ and
Applicant's trucks on that officer’s “dash cam". I relate this event in order to
explain the environment in which Judge Herr was required to pronounce sentence.
When the video of the collision was played in open court , a relative of one of the
victims ran from the courtroom, loudly retching; a dramatic occurrence which
dominated the subsequent news coverage. This, combined with Applicant's poor
testimonial performance and other aspects of this case led to the growing
inevitability of the maximum sentence being pronounced in open court in the
presence of the many friends and family of the dead and disfigured victims."
a Judication has not ‘been available even or stm e an W1 su se uent
Ma"fislaTIghter'iFthé 73'“ legislature (effective September 1, 1994), deferred
adjudication has never been available for these offenses as well. TheTfi’atters
were explained to Applicant and his family at length and in detail in response to
their initial inquires regarding the potential for plea bargaining and sentencing
from the beginning of my representation. Applicant was initially (and throughout
V1310-PXS7
my representation) completelflnd clearly infonned of the sentencing realities
pursuant to Texas Law and that he could not receive deferred adjudication for
circumstance and that with the use of a deadly weapon
being fonnally alleged, he could only receive probation (adjudication community
supervision) from a jury after atrial. The topic of deferred adjudication never
@6i12@1S
SEQEIISB
arose in conjunction with the discussion of the plea bargain offer.”
. “Not true. Applicant had always been told that the trial court could not grant
Again, a complete and utter fal§hood. The Ap licant was adviseTcF
that weapon
right circumstances, Judge I-lerr might reward him for having waived ajury and
entering a plea by “splitting the baby” with a sentence less than the maximum
and/or by possibly not entering a deadly weapon finding judgment. It should be
!_.rLSIcl0I£II\
noted that up until the time of impending jury selection, the offer had been a fiat
l5 years to do (not a cap) with an affinnative finding of use of a deadly weapon.
In a jury trial, Applicant was faced with the possibility of being denied probation
by thejury and then facing with the possibility of Judge Herr ordering any jury
sentences to be run consecutively. It is because the plea changed to a “cap” of 15
years concurrent without the requirement that the court enter a deadly weapon
finding and the resulting possibility of a sentence under the cap and/or without a
deadly weapon finding, that Applicant elected to enter into a plea bargain
agreement. Again, the possibility of community supervision from the court was
always described to Applicant as being extremely remote.”
. “Placing this case in full context will help the court understand the unique
dynamics involved leading up to Applicant’s plea. I was a zealous and committed
advocate for Applicant from the moment his father Bob Allen first appeared in my
office until the time that I was unforrned (sic) that Applicant had filed a pro se
writ of habeas corpus challenging my effectiveness. Mr. Allen came to me
concerned that his son (Applicant) would be irrevocably injured were he to be
moved to general population in the Bexar County Jail. Applicant had received a
cervical fracture in the collision which led to his arrest. This fracture placed him
at risk for spinal cord injury in the violent atmosphere of Bexar County Jail
general population. Despite the fact that Mr. Allen could not pay me, I put aside
other work and sought Applicant’s release from custody on person recognizance. I
was successful in this regard. I told Mr. Allen at that time that Applicant’s only
hope was from a jury, given the death and severity of injures he had
for probation
caused. The plan from the outset was trial byjury. Mr. Allen described his son as
young and inexperienced, not given to drinking alcohol and the type of drinker
who would not even finish a beer. Mr. Allen described how his son had become
romantically involved with an older woman and that this involvement lead to an
episode of drinking with her friends during which he had become intoxicated.
When he was lefi behind by the group, he had drunkenly found his way to his
truck, driven off and caused the fatal accident. I determined to present the
mitigating aspects of this scenario to a jury hoping for probation under the
circumstances. In this regard, I hired Dr. Michael Arambula, a forensic
psychiatrist and Pharm D. making him authoritative in psychopharmacology (the
effect of drugs and alcohol on the mind). I also planned to present individuals who
knew Applicant as an inexperienced non-drinker whose naivete would be viewed
as mitigating by thejury. As the case progressed however, it became apparent that
51031190
Mr. Allen’s version of the event was complete fiction. A picture emerged that
Applicant had in fact started drinking heavily in this new relationship and had
probably embarrassed his girlfriend with his drunken behavior on the night in
question. When she sought to have him stay behind to “sleep it off’, he
experienced this as an humiliating abandonment by his “first love”, became
suicidal and tried to “end it all” by intentionally driving down the wrong side of
the highway without regard to the innocent lives he might effect thereby. The
initial medical records brought to me by Applicant’s father were consistent with ‘3£SlclFJ'E€I!\
the false story he gave me about Applicant’s naivete with alcohol. As trial
approached, I obtained more complete records in discovery that revealed
Applicant’s growing history of alcohol abuse, records in which he admitted
periodic binge drinking leading up to the offense in question and a developing
alcoholism consistent with his family history and one which he had been
desperate to conceal from them. Applicant’s mother is Native American. Her
brother’s alcohol addiction led to multiple DWI arrests, imprisonment and
eventual death from acute alcohol poisoning. I expressed my concerns that (1) this
had been withheld from me (2) with the well-known genetic basis for alcoholism
and (3) how incompatible this was with his defense of naivete. As trial
approached and l inquired about witnesses with whom he was drinking on the
night of the accident, it became clear that their presence would further undennine
his claims of inexperience and seal his fate. I was forced to adapt my trial strategy
to conceal these truths from t.he prosecution. As it was, Applicant and I were
careful to structure his testimony to avoid any mention of his former girlfriend’s
_name, a commercial photographer with a webpage who could easily be found on
the lntemet by a quick thinking prosecutor. lt was evident that had the prosecution
made contact, it would have led to disastrous results.”
“While I was prepared to present mitigation to Judge Herr in the sentencing
hearing, I had not anticipated how effectively the prosecution would counter this
by literally packing the courtroom with the friends and family of the victims. This
seemed to place sociopolitical pressure on the sentencing judge. I infonned
Applicant that I might be able to counter this during the 30-day period of
continuingjurisdiction. It is true that I did not expect or predict that Judge Herr
would give Applicant no leniency at all under the tenns of the plea bargain
agreement, sentencing him to the maximum allowed under the “cap”. The
likelihood only developed during the sentencing hearing.
. In this affldavit, l have ex ressl described each if Applicantfs aslsertions as
complete and utter falsehoods for a reason: it is becfiisfihey are co—rn;)Ttea‘nd
utter falsehoods and because he knows that they are. for
applicant before, during and after his trial and 1 am therefore somewhat mystified
by the completely baseless claim of Ineffective Assistance of Counsel, particularly
because Applicant was advised of a legitimate avenue for seeking a new trial.
After his sentencing, Applicant and his family were repeatedly informed of the
thirty (30) day motion for new trial jurisdiction and were urged by me to contact
experienced Board Certified Criminal Law Specialist in order to attempt to set
aside the resulting sentence. I received a number of calls from qualified lawyers
SIP-JZI190
and spoke with several experienced criminal defense lawyers about areas of
possible post-conviction relief and my willingness to assist in this regard. For
example, this case was extensively litigated in a pretrial motion to suppress
regarding the validity of the warrantless blood draw. That motion was overruled
by the court. It is highly likely that the trial court was in error in that regard. The
prosecutor at the time (Mr. Fuchs) confided in me his concerns that my
suppression argument was valid and his fear that the judgment could be
overturned on appeal when l structured the plea in such a way as to preserve E>£S'ld0'[£11\
Applicant’s right to appeal rulings on pretrial motions. In response to have
structured the plea to appeal the motion to suppress, the prosecutor supplemented
the stipulations in a way he believed would defeat such an appeal. That avenue
was not pursued then, due to the pendency of the above described credit for time
sewed. However, it should have been raised in this writ of Habeas Corpus by
seeking an out of time appeal in that regard, as that issue would in my opinion
have a high likelihood of success, certainly higher than that of patently absurd
claim of ineffective assistance of counsel. The Applicant’s post-conviction
pursuits would have been better placed in that regard and why that has been
abandoned is beyond me except for Applicant’s acting pro se and without
competent legal advice in this regard. I had previously advised Applicant and his
family of the post-conviction strategy of seeking an out of time appeal challenging
the denial of the motion to suppress. I had explained that Applicant could file a
motion for a new trial and/or give notice of appeal regarding the motion to
suppress the ruling. i also explained that doing so might draw attention to the
unauthorized credit for time served and caused an interested prosecutor to
challenge this credit. There also remained the possibility of the trial court
reconsidering the deadly weapon finding by removing or omitting it in the
judgment. As it developed, the trial court amended the judgment by awarding
credit for time served. Judge Herr actually did this after herjurisdiction had
expired in a manner which could now (and then) be challenged as invalid.
Unfortunately, the affimtative finding of the use of a deadly weapon remained.
The better strategy for Applicant would have been to employ experienced counsel
and seek an out of time appeal of motion to suppress through a post-conviction
writ of habeas corpus, a strategy which is probably now foreclosed by the “one
writ rule”. By acting pro se and not following my advice, he has (I) lost legitimate
challenge to his conviction and (2) threatened the continuing viability for his
unauthorized credit for time served. If the prosecution now challenges that credit
for time served, he will probably lose it. Additionally, he will not be able to
challenge the trial court’s erroneous denial of his motion to suppress the
warrantless blood draw, thus ruling out any further challenge to his sentence.”
CONCLUSIONE OF LAW
SI'BZ'LT,90
1. Under the two-prong standard for reviewing ineffective assistance of counsel claims,
Applicant must show that (1) counsel’s representation fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel’s deficient 09S'[d-@T£I;r’\
performance, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668 (1984); See also McFarland v. State, 845 S.W.2d 824, 842-43
(Tex. Crim. App. 1992).
Trial counsel sufficiently rebuts all allegations made against him and provided a detailed
account of his work on the case, the court concludes that his representation of Applicant
did not below an objective standard of reasonableness. Therefore, this court
,1’ r——
recornrnends that Applicant’s second, third and fourth grounds for relief pertaining to
ineffective assistance of counsel be DENIED. See Strickland v. Washinglon, 466 U.S.
668 (1984).
Based on the foregoing findings of fact and conclusions of law, it is hereby recommended
that this application be DENIED.
SI!‘-)ZI1‘9(-J
0RDERS IA‘
The District Clerk of Bexar County, Texas, is hereby ordered to prepare a copy of this
15
document, together with any attachments and forward the same to the following persons by mail or
the most practical means:
T9SId‘E)
a. The Court of Criminal Appeals
Austin, Texas 78711
b. Nicholas “Nico” LaHood
Criminal District Attorney
Cadena - Reeves Justice Center
Bexar County, Texas 78205
c. Lynwyatt Allen
TDCJ ID: 01935579
Dominguez Unit
6535 Cagnon Road
San Antonio, Texas 78252
SIGNED, ORDERED and DECREED on / U //45% Z 0/5
F i1soN MOORE
e l86TH Judicial District Court
exar County, Texas
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