Petition for Writ of Certiorari — Jason Wayne Carlile, Petitioner v. Texas

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------JASON WAYNE CARLILE,

Petitioner,

vs.

STATE OF TEXAS,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Court Of Appeals,

Second Appellate District Of Texas

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------LEONARD THOMAS BRADT

14090 Southwest Freeway,

Suite 300

Sugar Land, Texas 77478

(281) 201-0700

Fax: (281) 201-1202

ltbradt@flash.net

Counsel of Record for

Jason Wayne Carlile

TRACY D. CLUCK #00787254

12600 Hill Country Blvd.,

Suite R-275

Austin, Texas 78738

(512) 329-2615

Fax: (512) 329-2604

tracy@tracyclucklawyer.com

Of Counsel

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1. May a defense attorney completely fail to subject

the State’s case to adversarial testing during a trial,

without thereby depriving a criminal defendant of the

effective assistance of counsel guaranteed by the Sixth

Amendment and a fair trial guaranteed by the Fourteenth Amendment? (Implicating Amend. V, VI and

XIV, U.S. Constitution)

2. Does it deny a Defendant Due Process of law when

the Court of Appeals goes outside of the record on appeal to find that there was an intentional strategy

engaged in with the approval of the Defendant, for

defense counsel to not ask any questions during trial?

(Implicating Amend. V and XIV, U.S. Constitution)

ii

PARTIES TO THE PROCEEDING

Jason Wayne Carlile –

Petitioner

State of Texas

Respondent

–

RULE 29.6 STATEMENT

Petitioner is not a corporate entity.

RELATED CASES

In re Jason Wayne Carlile, No. 02-19-00445-CV, in the

Second Court of Appeals at Fort Worth, Texas. Memorandum Opinion issued December 6, 2019.

In re Jason Wayne Carlile, WR-90,715-01, in the Texas

Court of Criminal Appeals. Leave to file denied without

written order on December 9, 2019.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

ii

RULE 29.6 STATEMENT ....................................

ii

RELATED CASES ...............................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

OPINIONS BELOW.............................................

1

STATEMENT OF JURISDICTION .....................

1

RELEVANT CONSTITUTIONAL PROVISIONS ....

2

RELEVANT STATUTORY PROVISIONS ...........

3

STATEMENT OF THE CASE..............................

4

Introduction ......................................................

4

BACKGROUND FACTS AND PROCEDURAL

HISTORY .........................................................

5

STANDARD OF REVIEW ...................................

8

REASONS FOR GRANTING THE WRIT............

8

Importance Of Case: ......................................... 11

Importance Of Case: ......................................... 13

CONCLUSION AND PRAYER ............................ 13

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX

Memorandum Opinion, Court of Appeals, Second

Appellate District of Texas (Nov. 24, 2021) ..... App. 1

Judgment, Court of Appeals, Second Appellate

District of Texas (Nov. 24, 2021) .................... App. 25

Denial of Review, Court of Criminal Appeals of

Texas (Mar. 2, 2022) ....................................... App. 26

v

TABLE OF AUTHORITIES

Page

CASES

Brady v. Maryland, 373 U.S. 83 (1963) .... 4, 7, 8, 11, 14

Murray v. Carrier, 477 U.S. 478 (1986) ........................9

Padilla v. Kentucky, 559 U.S. 356 (2010)......................9

Rubio v. State, 596 S.W.3d 410 (Tex.App. Dallas

2020) ........................................................................10

Salve Regina College v. Russell, 499 U.S. 225

(1991) .........................................................................8

Strickland v. Washington, 466 U.S. 668 (1984) ..........10

United States v. Bagley, 473 U.S. 667 (1985) ... 4, 8, 11, 14

United States v. Cronic, 466 U.S. 648 (1984) ............ 9, 10

United States v. Wells, 519 U.S. 482 (1997) ..................11

Yarborough v. Gentry, 540 U.S. 1 (2003) ......................8

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. V .................................... 2, 7, 12, 13

U.S. Const. Amend. VI ................................ 2, 7, 8, 9, 14

U.S. Const. Amend. XIV .............................. 2, 3, 7, 8, 12

STATUTES

28 U.S.C. § 1257(a) ........................................................1

TEX. CODE CRIM. PRO. Art. 39.14 ..................................7

TEX. CODE CRIM. PRO. Art. 39.14(a) .......................... 3, 4

TEX. CODE CRIM. PRO. Art. 39.15 ..................................3

1

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

Petitioner, Jason Wayne Carlile, respectfully petitions for a writ of certiorari to review the judgment of

the Second Court of Appeals at Fort Worth, Texas.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Texas Court of Criminal Appeals refused a Petition for Discretionary Review without written opinion. One Justice would have granted on Issue Three.

The notice of that refusal is reproduced at App. 26. Petitioner did not move for rehearing of that refusal. The

judgment and opinion of the Second Court of Appeals

at Fort Worth, Texas in Docket No. 02-19-00468-CR, affirming Petitioner’s conviction, is unpublished and is

reproduced at App. 1. There was no Motion for Rehearing.

---------------------------------♦---------------------------------

STATEMENT OF JURISDICTION

The Texas Court of Criminal Appeals’ refusal of

the petition for discretionary review of the opinion of

the Fourteenth Court of Appeals was issued on March

2, 2022. This Court has jurisdiction pursuant to 28

U.S.C. § 1257(a). App. 26. This petition is timely filed.

---------------------------------♦---------------------------------

2

RELEVANT CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the United States Constitution provides as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation. U.S.

Const. Amend. V

The Sixth Amendment to the United States Constitution provides as follows:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his defence. U.S. Const. Amend. VI

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, as follows:

3

. . . No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws. U.S. Const. Amend. XIV

---------------------------------♦---------------------------------

RELEVANT STATUTORY PROVISIONS

Article 39.14(a), Texas Code of Criminal Procedure, provides:

Subject to the restrictions provided by Section

264.408, Family Code, and Article 39.15 of this

code, as soon as practicable after receiving a

timely request from the defendant the state

shall produce and permit the inspection and

the electronic duplication, copying, and photographing, by or on behalf of the defendant, of

any offense reports, any designated documents, papers, written or recorded statements

of the defendant or a witness, including witness statements of law enforcement officers

but not including the work product of counsel

for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or

objects or other tangible things not otherwise

privileged that constitute or contain evidence

material to any matter involved in the action

and that are in the possession, custody, or control of the state or any person under contract

with the state. The state may provide to the

4

defendant electronic duplicates of any documents or other information described by this

article. The rights granted to the defendant

under this article do not extend to written

communications between the state and an

agent, representative, or employee of the

state. This article does not authorize the removal of the documents, items, or information

from the possession of the state, and any inspection shall be in the presence of a representative of the state.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Introduction

There is no reciprocal discovery in a criminal case

in Texas. Only Article 39.14(a), TEX. CODE CRIM. PRO.

and Brady1 impose a duty on the State to produce evidence to the defense. Article 39.14(a) imposes a duty

on the State to produce responsive evidence “as soon

as practicable.”

The State’s belated production of hundreds of

pages of documents in the two weeks before trial, was

the production of Article 39.14(a), TEX. CODE CRIM.

PRO. material, or it was the production of Brady/Bagley

material, or both.

The question arises under Brady and Bagley2

whether the production of exculpatory evidence must

1

2

Brady v. Maryland, 373 U.S. 83 (1963).

United States v. Bagley, 473 U.S. 667 (1985).

5

be at a time that affords a defendant sufficient time to

properly and fully investigate the evidence that is ultimately produced.

---------------------------------♦---------------------------------

BACKGROUND FACTS AND

PROCEDURAL HISTORY

On July 30, 2018, Jason Wayne Carlile was

charged by two Indictments with Aggravated Sexual

Assault of a Child, Cause Numbers 60829-B*1-2 and

60817-B. One of the Indictments alleges that the complaining witness was under 14 years of age, while the

other alleges the complaining witness was under 6

years of age. On May 15, 2019, Cause Number 60829B*1-2 was dismissed and re-indicted as Cause Number

61562-B*1-9. In Cause Number 61562-B*1-9, Jason

Wayne Carlile was charged by Indictment with four

counts of Aggravated Sexual Assault of a Child, and

five counts of Sexual Assault of a Child.

On November 8, 2019, the indictment was

amended.3

The case was set for trial on Tuesday, December 3,

2019—the week after Thanksgiving. Two weeks before trial, the State produced hundreds of pages of

records—records which the State had previously denied existed, records which required an expert to review and records that disclosed the possible existence

of exculpatory/impeachment evidence that would have

3

C.R. pp. 358–359.

6

to be investigated. None of which could be done before

trial.

The Wednesday before Thanksgiving, the State

produced hundreds of pages of records—records

which the State had previously sworn did not exist,

records which required an expert to review and records

that disclosed the possible existence of exculpatory/

impeachment evidence that would have to be investigated. None of which could be accomplished before

trial.

On December 3, 2019, Petitioner sought to continue the trial. The State opposed the continuance and

the motion was denied.4

Voir began December 4, 2019.5 On December 4,

2019, Petitioner sought mandamus from the Second

Court of Appeals in Fort Worth, which denied relief.

The Texas Court of Criminal Appeals also denied any

relief.

On December 11, 2019, the jury convicted on all

counts.6 The jury assessed punishment at confinement

for life and a $10,000 fine on Counts 1 and 2; the jury

assessed punishment at confinement for twenty years

and a $10,000 fine on each of Counts 3–8.7 A judgment

4

Had the continuance not been opposed and denied, defense

counsel could have properly investigated the leads disclosed in

the hundreds of pages of document and not been forced to stand

mute by the State’s actions.

5

R.R. Vol. 11.

6

C.R. pp. 496–514.

7

C.R. pp. 520–524.

7

was entered on that verdict.8 The court certified defendant’s right to appeal.9 A timely notice of appeal

was filed.10

Petitioner appealed to the Second Court of Appeals in Fort Worth. Appellant raised and briefed the

following points of error (phrased another way): Did

the State violate its duty to promptly provide the defense with Art. 39.14 (Brady) material; Did the prosecutor violate Petitioner’s due process rights and his

duty to see that justice is done by waiting until near

the trial date to turn over Brady and Art. 39.14 material to the defense; Did the trial court deprive Petitioner his fundamental right to a fair trial and the

effective assistance of counsel by denying his motion

for continuance; and, Was Petitioner denied his Sixth

Amendment right to effective assistance of counsel and

his Fifth and Fourteenth Amendment right to a fair

trial when his attorneys failed to present a defense or

otherwise participate in his trial? In an unpublished

memorandum opinion, the Second Court of Appeals

discussed and overruled Petitioner’s four points of error. The Texas Court of Criminal Appeals denied discretionary review, with one Justice saying he would

grant as to the third issue.

This timely petition for writ of certiorari follows.

---------------------------------♦--------------------------------8

C.R. pp. 525–548.

C.R. p. 549.

10

C.R. pp. 550–551.

9

8

STANDARD OF REVIEW

Because this petition involves the interpretation

of federal constitutional law and prior holdings of this

Court, the standard of review is de novo.11

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

Because of the position that she was

placed in by the belated dump of Brady/

Bagley material, Petitioner’s attorney

conducted no voir dire, exercised no

strikes, made no opening statement, examined no witnesses, made no objections, presented no defense, made no

closing argument and presented nothing

on punishment. This denied Petitioner

his Sixth Amendment guaranteed assistance of counsel and Fourteenth Amendment right to due process and a fair trial.

“The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right

is denied when a defense attorney’s performance falls

below an objective standard of reasonableness and

thereby prejudices the defense.”12 It is this Court’s responsibility under the Constitution to ensure that no

criminal defendant, whether a citizen or not, is left to

11

See Salve Regina College v. Russell, 499 U.S. 225, 231–232

(1991).

12

Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

9

the mercies of incompetent counsel.13 Especially in

light of this Court’s holding that,

“ . . . if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial

testing, then there has been a denial of Sixth

Amendment rights that makes the adversary

process itself presumptively unreliable.”14

Although a defendant generally bears the risk of

attorney error that results in a procedural default,

such error cannot be attributed to the defendant

when counsel’s performance is constitutionally ineffective.15 When defense counsel does not even “fog a mirror”, is that performance constitutionally ineffective

and can that conduct ever be attributed to the defendant?

This Court has held that a convicted defendant’s

claim that counsel’s assistance was so defective as to

require reversal of a conviction has two components:

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant 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

13

Padilla v. Kentucky, 559 U.S. 356, 374 (2010).

United States v. Cronic, 466 U.S. 648, 659 (1984).

15

See Murray v. Carrier, 477 U.S. 478, 488 (1986).

14

10

deprive the defendant of a fair trial, a trial

whose result is reliable.16

The State’s belated dump of many hundreds of

pages of records—records that required expert review

and further investigation,17 put Petitioner’s trial counsel in a box. That box was, ask any questions and have

everything determined to be trial strategy, or not participate in the trial to preserve the error for appellate

review.18 Stated another way, unless defense counsel

entirely fails to subject the State’s case to meaningful

adversarial testing, the defendant loses the Cronic presumption of prejudice.19

Faced with this dilemma, Petitioner’s attorney

conducted no voir dire, exercised no strikes, made no

opening statement, examined no witnesses, made no

objections, presented no defense, made no closing argument and presented nothing on punishment.20

And, predictably, Petitioner was convicted on all

counts, with the jury assessing the maximum punishments on all counts.

16

Strickland v. Washington, 466 U.S. 668, 687 (1984).

C.R. pp. 433–438.

18

Rubio v. State, 596 S.W.3d 410, 428 (Tex.App. Dallas

2020), citing United States v. Cronic, 466 U.S. 648 (1984), rev’d

on other grounds, 638 S.W.3d 693 (Tex.Crim.App. 2022).

19

Rubio v. State, 596 S.W.3d 410, 428 (Tex.App. Dallas

2020), citing United States v. Cronic, 466 U.S. 648 (1984), rev’d

on other grounds, 638 S.W.3d 693 (Tex.Crim.App. 2022).

20

Entire R.R..

17

11

The Fort Worth Second Court of Appeals affirmed,

holding, inter alia, that counsel’s failure to participate

in the trial was “trial strategy” that Petitioner acquiesced in and was, therefore, “invited error.”21 The Fort

Worth Second Court of Appeals did not hold that Petitioner was denied his constitutionally guaranteed effective assistance of counsel.

This “invited error” holding misapplies the concept of “invited error” as observed by this Court. As this

Court noted, “[the] Courts of Appeals have stated more

broadly under the ‘invited error’ doctrine ‘that a party

may not complain on appeal of errors that he himself

invited or provoked the [district] court . . . to commit.’ ”22

Trial counsel’s refusal to participate in the trial

was not something that the trial court committed. It

was something that trial counsel did after being put

into the box of the State’s creation.

IMPORTANCE OF CASE:

This Court has never delimited when the State

must produce Brady/Bagley material. The facts of this

case show that this Court’s guidance in that area is

sorely needed. Further, this case presents the question

of whether a defendant may ever agree to his attorney not subjecting the State’s case to meaningful

21

22

App. 17–25.

United States v. Wells, 519 U.S. 482, 487–488 (1997).

12

adversarial testing—unless that agreement affirmatively appears on the record.

It denies a Defendant Due Process of law

when the Court of Appeals goes outside

of the record on appeal to find that there

was an intentional strategy engaged in,

by defense counsel, with the acquiescence of the Defendant, for defense counsel to not ask any questions during trial.

It cannot be gainsaid that defense counsel’s strategy to not subject the State’s case to any adversarial

testing was intentional, for the reasons set forth above.

This Court has never decided whether a defendant,

who is represented by counsel, may agree to counsel’s

strategy to not subject the State’s case to meaningful

(any) adversarial testing. The Court’s guidance in this

area is needed.

Assuming, arguendo, that a defendant may agree

to counsel’s strategy to not subject the State’s case to

any adversarial testing, must that agreement be found

in the record, or may the appellate court infer acquiescence from a silent record without violating the defendant’s Fifth and Fourteenth Amendment Due Process

rights?23

While the trial court sent Petitioner and his counsel out to discuss her strategy, as that “strategy” was

stated in the record by the District Attorney, the record

is silent as to any colloquy between the court and

23

App. 17–25.

13

Petitioner, or his counsel, as to whether he did or did

not agree with his attorney’s strategy to not subject the

State’s case to any adversarial testing, much less what

was discussed between Petitioner and his attorney.24

To infer anything from a criminal defendant’s silence is to violate that defendant’s Fifth Amendment

right to remain silent. It also ignores the conventional

wisdom that defendants remain silent in court, unless

and until they are questioned by the trial court or are

called by their counsel to testify.

IMPORTANCE OF CASE:

This Court has never decided whether a defendant

may (or must) agree to his counsel’s decision to not

subject the State’s case to any adversarial testing.

Should this Court decide that a defendant must agree

to his counsel’s decision to not subject the State’s case

to any adversarial testing, this Court should announce

how that agreement must be reflected in the record on

appeal.

---------------------------------♦---------------------------------

CONCLUSION AND PRAYER

Petitioner prays that this Honorable Court grant

certiorari to determine whether, when defense counsel

conducts no voir dire, exercises no strikes, makes no

opening statement, examines no witnesses, makes no

objections, presents no defense, makes no closing argument and presents nothing on punishment, is that

24

Entire R.R..

14

attorney constitutionally ineffective under the Sixth

Amendment? Related thereto, Petitioner prays that

this Honorable Court grant certiorari to determine

when the State must produce Brady/Bagley material

so as to not deprive a defendant of Due Process and the

right to a fair trial.

Petitioner also prays that this Honorable Court

grant certiorari to determine both whether a defendant may agree with trial counsel’s strategy to not subject the State’s case to meaningful adversarial testing;

and, if so, how must that agreement be reflected in the

record?

Petitioner prays for general relief.

Respectfully submitted,

LEONARD THOMAS BRADT

14090 Southwest Freeway,

Suite 300

Sugar Land, Texas 77478

(281) 201-0700

Fax: (281) 201-1202

ltbradt@flash.net

Counsel of Record for

Jason Wayne Carlile

TRACY D. CLUCK #00787254

12600 Hill Country Blvd.,

Suite R-275

Austin, Texas 78738

(512) 329-2615

Fax: (512) 329-2604

tracy@tracyclucklawyer.com

Of Counsel