Petition for Writ of Certiorari — Shawn Pinson, Petitioner v. Texas

Supreme Court briefDec 7, 2021

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IN THE

SUPREME COURT OF THE UNITED STATES

Supreme Court, U S

FILED

DEC 0 7 2021

SHAWN PAUL PINSON

— PETITI

jiff the clerk

(Your Name)

vs.

STATE OF TEXAS

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

TEXAS COURT OF CRIMINAL APPEALS

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Shawn Paul Pinson #2109680

(Your Name)

12071 FM 3522

(Address)

Abilene, Texas 79601

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

IS THE TEXAS COURT OF CRIMINAL APPEALS VIOLATING PROCEDURAL

DUE PROCESS BY DENYING RELIEF TO HABEAS APPLICANTS WITHOUT

EXPLANATION WHEN THE TRIAL COURT HAS MADE EXTENSIVE FINDINGS

OF FACT AND CONCLUSIONS OF LAW RECOMMENDING RELIEF?

LIST OF PARTIES

[xl All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

State of Texas v. Shawn Paul Pinson; Cause No. B-44,548;

in the 161st District Court, Ector County, Texas

Pinson v. State, 2018 WL 6722294, No. 11-17-00003-CR (Tex. App.Eastland 2018, pet. ref'd)

Ex parte Shawn Paul Pinson; Cause No. WR-92,773-01

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

2.3

INDEX TO APPENDICES

APPENDIX A Pinson v. State, 2018 WL 6722294, No. 11-17-00003-CR

(Tex. App.-Eastland 2018, pet. ref'd)

APPENDIX B State Court's Finding of Facts and Conclusions of Law

Recommending Relief

APPENDIX C Order denying relief from the Court of Criminal

Appeals

APPENDIX D Letter from habeas counsel notifying Applicant that

Reconsideration was denied

APPENDIX E Trial counsel responses to the first set of

interrogatories from habeas counsel

APPENDIX F Trial counsels responses to the second set of

interrogatories from habeas counsel

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

1.Evitts v. Lucey, 469 U.S. 387, 396 (1985)

2.Kyles v. Whitley, 514 U.S. 419, 434 (1995)

3. McMann v. Richardson, 397 U.S. 759, 791 (1970)

4. Powell v. Alabama, 287 U.S. 45, 71 (1932)

5. Smith v. Robbins, 528 U.S. 259, 285 (2000)

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

9, 10, 15

7. White v. Thaler,610 F.3d 890, 912 (5th Cir. 2010)

8. Almanza v. State 686 S.W.2d 157, 171 (Tex. Crim. App.

1985)

9. Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) 14

10. Banks v. State, 819 S.W.2d 676, 679-82 (Tex. App.13

San Antonio 1991, pet. ref'd)

11. Barrios v. State, 283 S.W.3d 348, 353 (Tex. Crim. App. 13, 14

2009)

STATUTES AND RULES

1. U.S. CONST, amend. VI

2. U.S. CONST, amend. XIV

3. TEX. PEN. CODE Sec. 6.03(a)

4. TEX. PEN. CODE Sec. 6.03(b)

OTHER

9, 15

9, 15, 21

12. Chaney v. State, 314 S.W.3d 561, 573 (Tex. App.15, 16, 18

AmiriMio 2010, pet. ref'd)

13. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim.

11, 12, 17

App. 1994)

14. Ex parte Aguilar, 2007 WL 3208751 *3 (Tex. Crim. App.

2007)

15. Exzparte Connors, WR-73,203-03, 2020 WL 1542424 (Tex.

Crim. App. Apr. 1, 2020)

16. Ex parte Daigle, 848 S.W.2d 691, 692 (Tex. Crim. App.

1993)

17. Ex parte Drinkert, 821 SWW.2d 953, 955-57 (Tex. Crim.

App. 1991)

18. Ex parte Miller, 330 S.W.3d 610, 624-25 (Tex. Crim. App.

2009)

19. Ex parte Molina, No. WR-83,007-01, 2015 WL 519737 (Tex.

Crim. App. Nov. 25, 2015)

20. Ex parte Peterson,1117 S.W.3d 804, 818 (Tex. Crim. App.

2003)

21. Ex parte Rene, No. WR-90,417-01, 2021 WL 1257226 (Tex.

Crim. App. Feb. 24, 2021)

22. Ex parte Stoneman, No. WR-86,966-02\ LEXIS 369 (Tex.

Crim. App. May 9, 2018)

23. Ex parte Strickland, No. WR-27,079-02, 2020 WL 3635907

(Tex. Crim. App. July 21, 2020)

24. Green v. State, 891 S.W.2d 289. 294 (Tex. App.-Houston

[1st Dist.] 1994, pet. ref'd)

25. Lee v. State,99Z1 S.W.2d 130, 131 (Tex. App.-Houston

[14th Dist.] 1998, pet. ref'd)

26. Pinson v. State, 2018 WL 6722294, No. 11-17-00003-CR

(Tex. App.-Eastland 2018, pet. ref'd)

27. Sims v. State, 99 S.W.3d 600, 604 (Tex. Crim. App.

19,

2003)

28. Sneed v. State, 803 S.W.2d 833, 835 (Tex. App. 12, 15, 16,

Dallas 1991, pet. ref'd)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[X] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_§__ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the Texas iSouirt of Criminal Appeals

appears at Appendix _J___ to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

court

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was______________________

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including_______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[X] For cases from state courts:

The date on which the highest state court decided my case was 9/22/21

A copy of that decision appears at Appendix

[Xl A timely petition for rehearing was thereafter denied on the following date:

September 29. 2021 and a copy of the order denying rehearing

appears at Appendix___4

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourteenth Amendment of the United States Constitution

states; "All persons born or naturalized in the United States, '

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No state

shall make or enforce any law which shall abridge the privileges

or immunities of the 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."

STATEMENT OF THE CASE

Question Presented: Is the Texas Court of Criminal Appeals violating

procedural due process by denying relief to habeas applicants

without explanation when the trial court has made extensive findings

of fact and conclusions of law recommending relief?

I. CHRONOLOGY OF THE PROCEEDINGS.

’ _

Shawn Paul Pinson, "Applicant’,', pled not guilty to murder

in cause number B-44,548 in the 161st District Court of Ector

County before Judge John Smith. A jury convicted him and

assessed his punishment at 70 years in prison and a $10y000

fine on December 9, 2016. Matt Thomas represented him at trial.

The Eleventh Court of Appeals affirmed Applicant's

conviction in an unpublished memorandum opinion issued on

December 21, 2018. The Court of Criminal Appeals refused

discretionary review on April 17, 2019. This Court denied

certiorari on October 7, 2019. Pinson v. State, 2018 WL 6722294,

No. 11-17-00003-CR (Tex. App.-Eastland 2018, pet. ref'd)(AX 1).

Michele Green represented him on appeal.

Applicant filed a post-conviction writ of habeas corpus

challenging the legality of his confinement in the state court.

The state habeas court made extensive findings of fact and

conclusions of law recommending relief be granted. (AX 2). The

Court of Criminal Appeals entered an order denying Applicant

relief on September 22, 2021, without explanation. (AX 3).

Reconsideration was denied on September 29, 2021. (AX 4). Randy

Schaffer represented him in habeas corpus proceedings.

II. STATEMENT OF FACTS.

The Indictment

The indictment alleged, in pertinent part, that on or about

October 18, 2014, Applicant did "intentionally and knowingly

cause the death of... DANIEL SEARCY, by hitting or striking

with his hand or an object unknown to the Grand Jury or by

kicking or stomping with his foot the said DANIEL SEARCY, or by

a manner and means unknown to the Grand Jury, or by a

combination therof"; and, that Applicant did, "intending to

cause serious bodily injury to DANIEL SEARCY, intentionally and

knowingly commit an act clearly dangerous to human life, namely

hitting or striking with his hand or an object unknown to the

Grand Jury or by kicking or stomping with his foot the said

DANIEL SEARCY, or by a manner and means unknown to the Grand

Jury, or by a combination thereof, which caused the death of the

said DANIEL SEARCY". (C.R. 7-8).

The Evidence

Daniel "Searcy" was seen in Applicant's front yard on

Saturday, October 18, 2014 (8 R.R. 168-72). Applicant had a

party that night (9 R.R. 31). His girlfriend, Allison "Blessie",

testified that he was using methamphetamine the entire weekend

(9 R.R. 27, 31-32, 49). She took a Xanax and was asleep by 11:00

p.m. (9R.R. 32). He was still awake when she awoke on Sunday (9

R.R. 32-33). When she left on Sunday night, he was acting

paranoid and appeared to be in fear for his life (9 R.R. 35, 53).

He gave her a note that said she could have his dog and Corvette

and wrote a note to his parents that he loved them and was sorry

(9 R.R. 38-41; S.X. 190, 193).

Cedric "Reese", a friend, testified that Applicant called

him and said that he was in trouble and needed money to leave

town (9 R.R. 105-06).

Charles "Christensen", another friend, saw Applicant working

on his car on Monday (8 R.R. 87, 92-93). Applicant would not go

inside the house and was upset but would not say why (8 R.R. 9394). Christensen returned on Tuesday, saw Applicant working on

his car, and asked to go inside (8 R.R. 97-98). Applicant said

that the sewer pipe broke and that he did not want to live any

longer and "deal with this" (8 R,R. 98-99). Christensen thought

he was referring to his drug problem.

Tamara "Ingraham", Searcy's sister, testified that she and

her mother drove to Applicant's home on Wednesday, saw

Applicant and another man outside, and asked if they had seen

Searcy (8 R.R. 174, 176-81). Applicant said th&t he last saw

Searcy on Sunday (8 R.R. 181-82).

Christensen received a call from Paul "Neatherlin" on

Friday, called the sheriff to report what Neatherlin told him,

and called Ingraham to ask whether she had located Searcy (8

R.R. 100, 102-03). Ingraham called the police and drove to

Applicant's home (8 R.R. 183-84).

Odessa Police Department Sergeant James "Chadwick" testifiedo

that officers conducted a welfare check at Applicant's home on

Friday, October 24, and found Searcy's body in the livingrroom

(7 R.R. 176-77; 8 R.R. 48). He had wires and electrical cord

around his neck and body and zip ties around his wrists and

ankles (8 R.R. 50).

A pathologist testified that Searcy had fractures to his

skull, thyroid cartilage, and ribs and that he died from blunt

force injuries (7 R.R. 124, 126, 133). The skull and rib

fractures could have been caused by being hit, kicked, or

stomped (7 R.R. 137). He might have survived had he received

medical treatment (7 R.R. 135).

A forensic scientist testified that a glove found at the

scene contained a mixture of DNA from Applicant, Searcy, and

two other persons (8 R.R. 126-28, 142-43). A partial profile on

a bottle of bleach and the bindings on Searcy's body did not

contain Applicant's DNA (8 R.R. 132, 138).

Neatherlin, Applicant's employee and friend, testified that

he went to Applicant's home on October 19th to ask about work

(9 R.R. 68, 74-75).1 Applicant was crying in the frint yard and

asked him to leave (9 R.R. 74). He asked what was going on (9

R.R. 76). Applicant said that he would tell him later.

Neatherlin testified that he returned four or five days

later and saw Applicant, who was high, working on his car (9

R.R. 76-77). He noticed a padlock on the door and an unusual

odor (9 R.R. 76). Applicant said that a sewer pipe broke. They

drove to a Wal-Mart for Applicant to buy cleaning supplies (9

R.R. 77-78). Applicant gave Neatherlin money to buy bleach and

air freshener (9 R.R. 78-79).2

1. Neatherlin, who vas living in a dag treatment facility, had charges of possession of

a controlled substance, fraudulent use and possession of identification information, burglary

of a buildirg, and unauthorized use of a motor vdnicle pendirg in Midland Gxnty and Bead/

Gxnty vhan he testified (9 R.R. 69, 98). He denied that he vculd receive leniency for his

testimony (9 R.R. 70, 100).

2.Applicant and Neatherlin made several purchases at the Uhl-ffart cm October 22 and 23,

but tohl-t'fart's records could not confirm that they purchased cleaning supplies and bleachr,(8

R.R. 153-65; S.X. 201-05).

Neatherlin testified that, when they returned to

Applicant's home, he saw clothes and food outside and asked

what was going on (9 R.R. 84). Applicant cried, said that he

would not lie anymore, unlocked the door, took him inside, and

showed him Searcy's body (9 R.R. 84-85). Neatherlin asked if

Applicant killed him (9 R.R. 86). Applcant said, 'I didn't mean

to do it. I killed him, but I didn't do what they did in there.

Mexicans are crazy,

He elaborated that Searcy had stolen from

him; that he wanted to teach Searcy a lesson; and that "the

Mexicans" put ties and cable wires around Searcy's neck (9 R.R.

86-87,' .91) .

Neatherlin testified that he left and called the sheriff and

Christensen (9 R.R. 88-89). He hired a lawyer because he was

concerned that he had bought bleach and air freshener (9 R.R.

89-90). The police contacted him, and he gave a statement (9

R.R. 90).

The Court's Charge

The coutt instructed the jury on murder, manslaughter, and

negligent homicide (C.R. 64-66).

The Arguments

The prosecutors argued that Applicant knocked Searcy down

during a struggle, stomped on his head, and bound him while he

was unconscious (10 R.R. 33-35); that Applicant told Neatherlin

that he was responsible for Searcy's death but did not mean to

kill him (10 R.R. 14); that Neatherlin was credible because he

called the sheriff and had no deal on his pending charges (9 R.R.

38-39); that Applicant should be convicted of murder instead of

manslaughter because this was an "intentional act" (10 R.R. 11,

35-36); and, that Applicant demonstrated consciousness of guilt

by lying to Searcy's family, buying cleaning supplies, and

giving away his property (10 R.R. 13-14, 43).

Defende counsel argued that Neatherlin was not credible

because he used methamphetamine and had pending charges (10 R.R.

17-18); and, whoever hit and kicked Searcy didinot intend to

kill him or realize the seriousness of his injuries (10 R.R. 3031).

The Verdict

The jury convicted Applicant of murder (C.R. 72).

III. THE STATE HABEAS PROCEEDINGS.

In his state habeas proceedings Applicant advanced two

grounds. One against trial counsel and the second against

appellate counsel.

A. The Standard Of Review For Effectiveness Of Trial Counsel

Applicant had a right to effective assistance of counsel at

trial. U.S. CONST, amends. VI and XIV; Powell v. Alabama, 287

U.S. 45, 71 (1932). Counsel must act within the range of

competence demanded of counsel in criminal cases. McMann v.

Richardson, 397 U.S. 759, 771 (1970).

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

Supreme Court addressed the federal constitutional standard to

determine whether counsel rendered reasonably effective

assistance. Thewdafendant first must show that counsel's

performance was deficient under prevailing professional norms.

Id. at 687-88. The defendant also must show that counsel's

deficient performance prejudiced the defense by depriving him

of a fair trial with a reliable result. Id. at 687.

The defendant must identify specific acts or omissions that

are alleged not to have been the result of reasonable judgment.

Strickland, 466 U.S. at 690. The reviewing court must then

determine whether, in light of all the circumstances, the

identified acts or omissions were outside the range of

professionally competent assistance. Id. Ultimately, the

defendant must show "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

Id. at 694. Strickland requires a cumulative prejudice analysis.

Ex parte Aguilar, 2007 WL 3208751 *3 (Tex, Crim. App. 2007)(not

designated for publication); White v. Thaler, 610 F.3d 890, 912

(5th Cir. 2010).

Applicant need not show a reasonable probability that, but

for counsel's errors, he would have been acquitted. "The result

of a proceeding can be rendered unfair, and hence, the proceeding

itself unfair, even if the errors of counsel cannot be shown by

a preponderance of the evidence to have determindd the outcome."

Strickland, 466 U.S. at 694. The issue is whether he received a

fair trial that produced a verdict worthy of confidence. Cf.

Kyles v. Whitley, 514 U.S. 419, 434 (1995).

Deficient Performance

1. Applicant alleged that counsel was ineffective where he did not

object to the court's charge that failed to limit the definitions

the culpable mental statesiito the result of Applicant's crimductr.and

to the erroneous arguments that the culpable mental states apply

to the nature of his conduct.

Specifically, Neatherlin testified that Applicant told him

that he did not mean to kill Searcy (9 R.R. 86). The pathologist

testified that Searcy might have survived had he received

medical treatment (7 R.R. 135). The court instructed the jury

on murder, manslaughter, and negligent homicide (C.R. 64-66).

The court provided the definitions of the culpable mental states

of intentionally and knowingly in Sections 6.03(a) and (b) of

the Penal Code (C.R. 63).

A. person acts intentionally, or with intent, with respect

to the nature of his conduct or to a result of his

conduct when it is his conscious objective or desire to

engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect

to the nature of his conduct or to circumstances

surrounding his conduct when he is aware of the nature

of his conduct or that the circumstances exist. A person

acts knowingly, or with knowledge, with respect to a

result of his conduct when he is aware that his conduct

is reasonably certain to cause the result.

Counsel did not object to the court's failure to limit the

definitions of the culpable mental states to the result of

Applicant's conduct.

The prosecutors argued without objection during summation

that Applicant was guilty of murder instead of manslaughter

because this was an"intentional act" (10 R.R. 11, 35-36).

Murder is an"result of conduct" offense. Cook v. State, 884

S.W.2d 485, 491 (Tex. Crim. App. 1994). To convict, the jury

must find that the defendant intended the result; it is not

enough that he intended the conduct. The trial court errs in

instructing the jury, with regard to a "result of conduct"

offense, that the definitions of the culpable mental states

apply to both the nature and the result of the conduct instead

of limiting them to the result of the conduct. Id. at 486.

The court's charge improperly authorized the jury to convict

Applicant of murder based on a finding that he intentionally or

knowingly engaged in the conduct. Cf. Sneed v. State, 803 S.W.2d

833, 835 (Tex. App.-Dallas 1991, pet. ref'd). The jury should

have been instructed that he could not be convicted of murder

unless he intended to cause death or serious bodily injury. Id.

at 836. Thus, a correct definition of the culpable mental

states would have been, "A person acts intentionally, or with

intent, with respect to a result of his conduct when it is his

conscious objective or desire to cause the result. A person

acts knowingly, or with knowledge, with respect to a result of

his conduct when he idsaware that his conduct is reasonably

certain to cause the result."

Counsel informed habeas counsel in writing that he knew at

the time of trial that murder is a "result of conduct" offense,

but the definitions of the culpable mental states in theecourt's

charge tracked the statute and, as a result, both the charge

and the prosecutor's arguments were correct. (AX 5, 6). Clearly,

he is not aware of Cook and its progeny.

Counsel performed deficiently in failing to object that the

court's charge failed to limit the definitions of the culpable

mental states to the result of Applicant's conduct. Instead, it

allowed the jury to convict him of murder on a finding that he

intentionally or knowingly engaged in the conduct without regard

to whether he intendedxthe result. Counsel also performed

deficiently in failing to object to the prosecutor's erroneous

arguments that Applicant was guilty of murder instead of

manslaughter because he acted intentionally. See Banks v. State,

819 S.W.2d 676, 679-82 (Tex. App.-San Antonio 1991, pet. fef'd)

(counsel ineffective in failing to object to court's failure to

limit definitions of culpable mental states to result of conduct

in injury to a child case). No sound strategy could justify

these omissions.

2. Applicant alleged that counsel failed to object to prosecutor's

erroneous argument and verdict form that required the jury to

unanimously acquit applicant of murder before it could consider

the lesser included offenses.

A prosecutor argued without objection during summation that

the jury could consider the lesser included offenses only if it

unanimously acquitted Applicant of murder (10 R.R. 35). The

verdict forms also required the jury to acquit him of murder in

order to consider manslaughter and negligent homicide (G.R. 6970),

The court's charge cannot require the jury to acquit the

defendant of the charged offense before it can consider any

lesser included offenses. See Barrios v. State, 283 S.W.3d 348,

353 (Tex. Crim. App. 2009). The prosecutor cannot properly

argue that the juty must unanimously agree that the defendant

is not guilty of the charged offense before it can consider the

lesser included offenses. See Lee v. State, 971 S.W.2d 130, 131

(Tex. App.-Houston [14th Dist.] 1998, pet. ref'd).

Counsel informed habeas counsel in writing that the verdict

forms in Ector County have always required the jury to acquit

the defendant of the charged offense before considering the

lesser included offenses and that the prosecutor?s argument and

the verdict forms were correct (AX 6). Clearly, he is not aware

of Barrios and Lee.

Counsel performed deficiently in failing to object to this

improper argument. C£. Ex parte Drinkert, 821 S.W.2d 953, 95557 (Tex. Crim. App. 1991)(counsel ineffective in failing to

object to prosecutor's misstatement of law during summation).

No sound stategy could justify counsel's failure to object to

argument that misstates the applicable law to defendant's

detriment. See Andrews v. State

159 S.W.3d 98, 103 (Tex. Crim.

App. 2005).

Prejudice

The jury was misled regarding the applicable law and probably

convicted Applicant of murder because it found that he

intentionally engaged in the conduct (hitting and kicking Searcy)

without finding that he intended to cause the result (death or

serious bodily injury that resulted in death). Had the court

correctly instructed the jury that it could not convict Applicant

unless it found beyond a reasonable doubt that he intended to

cause the death or serious bodily injury, and had counsel

successfully objected to the verdict forms and the prosecutor's

misstatements of the law during summation and obtained

instructions to disregard, there is a reasonable probability

that the jury would have convicted Applicant of manslaughter or

deadlocked. Had the court overruled timely objections to the

erroneous definitions and arguments, there is a reasonable

probability that an appellate court would have reversed any

■j

conviction for murder.

Appellate courts have reversed convictions for "result of

conduct" offenses, such as murder and aggravated assault, where

the jury received these erroneous definitions of the culpable

mental states and the prosecutors argued that the jury could

convict the defendant of the charged offense if he intentionally

engaged in the conduct. See Sneed, 803 S.W.2d at 837 (aggravated

assault conviction reversed, despite counsel's failure to object,

where court failed to limit definitions of culpable mental states

to result of conduct and prosecutor argued that defendant could

be convicted if he intended the conduct and it was reasonably

certain to cause the injuries); Chaney v. State, 314 S.W.3d 561,

573 (Tex. App.-Amarillo 2010, pet. ref'd)(murder conviction

reversed, despite counsel's failure to object, where erroneous

definitions of culpable mental states undermined defense theory

that death was result of reckless or negligent conduct).3 A

murder conviction obtained under these circumstances is not

worthy of confidence. Accordingly, Applicant is entitled to a

new trial.

D. The Standard Of Review For Appellate Counsel

Applicant had a right to effective assistance of counsel on

appeal. U.S. CONST, amends. VI and XIV. Evitts v. Lucey, 469

U.S. 387, 396 (1985). Strickland - applies in the appellate

context. Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate

counsel has a duty to raise any issue that woudd require r&l&df.

3. The court of appeals sua spcnte ordered the parties to brief this issue as uiassigped

error. Chaney, 314 S.W.3d at 563

Where appellate counsel failed to raise a viable issue, a habeas

applicant is entitled to an out-of-time appeal if reasonably

competent counsel would have raised the issue and there is a

reasonable probability that an appellate court would have

granted relief. See Ex parte Daigle, 848 S.W.2d 691, 692 (Tex.

Crim. App. 1993)(appellatedcounsel ineffective in failing to

raise denial of jury shuffle); Ex parte Miller, 330 S.W.3d 610,

624-25 (Tex. Crim. App. 2009)(appellate counsel ineffective in

failing to raise that evidence was insufficient to prove prior

conviction alleged for enhancement of punishment).

Deficient Performance

1. Applicant alleged that appellate counsel failed to

raisad the issue that the trial court erred in failing

to limit the definitions of the culpable mental states

to the result of applicant'sa conduct.

Competent appellate counsel would have challenged the

erroneous definitions of the culpable mental states for the

reasons set forth on pages 11-15 of Applicant's brief.

Prejudice

Had appellate counsel raised the issue, there is a reasonable

probability that an appellate court would have found egregious

harm and reversdd Applicant's conviction pursuant to Sneed and

Chaney. Thus, he is entitled to an out-of-time appeal.

The Trial Court's Factual Findings And Conclusions Of Law

After a hearing on the merits, the habeas court made

extensive findings of fact and conclusions of law recommending

habeas relief for Applicant■(AX 2).

The Denial

In a one sentence opinion, the Court of Criminal Appeals

denied Applicant's writ without explanation (AX 3).

The Suggestion For Reconsideration

After the denial of habeas relief Applicant submitted a

motion for Applicant's Suggestion For Reconsideration arguing

that it is procedural due process for an appellate court to

reject a trial court's findings of fact and conclusions of law

recommending habeas corpus relief without explaining why they

are not supported by the record.

Applicant requested that the Court of Criminal Appeals, on

its own initiative, reconsider the denial of relief and, at the

very least, explain why it rejected the trial court's conclusion

that Applicant was harmed by the erroneous definition of the

culpable mental states in the abstract portion of the charge

where the prosecutors argued that the jury should convict him

of murder because this was an"intentional act".

The Court of Criminal Appeals denied Applicant's suggestion

for reconsideration (AX 4).

ISSUE ONE

Is the Texas Court of Criminal Appeals violating

procedural due process by denying relief to habeas

applicants without explanation when the trial court

has made extensive findings of fact and conclusions

of law recommending relief?

Standard Of Review

It is well settled law in theaState of Texas that finding

error in the jury charge begins, rather than ends, the appellate

court's inquiry. The next step is to make an evidentiary review

of the record as a whole which may illuminate the actual, not

just the theoretical harm to appellant. See Cook, 884 S.W.2d

at 491-92 (holding intentional murder is a "result of conduct"

offense, therefore, the trial judge erred in not limiting the

culpable mental states to the result of appellant's conduct);

Sneed, 803 S.W.2d at 836 (aggravated assault of a public

servant conviction reversed where the State did not prove Sneed

intended the result obtained); Chaney, 314 S.W.3d at 568

(murder conviction reversed where the State did not present

evidence that it was appellant's purpose that [victim] would

die as a result of their confrontation); Green v. State, 891

S.W.2d 28.9, 294 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd)

(aggravated assault conviction affirmed where evidence that

appellant intended the result was overwhelming).

Thus, under Texas law, due process required that Applicant's

claim of jury charge error be assessed in light of the total

circumstances of the trial. Namely, 1) the state of the

evidence, including contested issues and weight of probative

evidence; 2) the entirety of the jury charge; 3) the argument

of counsel; and 4) any other relevant information that the

trial reveals. Almanza W»State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985)(on reh'g).

The Denial Of Due Process

There is nothing in the record which suggests that the

Court of Criminal Appeals conducted the required Almanza

analysis. Instead, it rejected the trial court's factual

findings and conclusions of law recommending habeas relief for

Applicant without any explanation whatsoever. However, this is

contrary to the court's own holdinds in regard to the court's

showing their work. See Ex parte Peterson, 117 S.W.3d 804, 818

(Tex. Crim. App. 2003)^holding that courtbtfshould "hhcaw their

work" so that their ultimate factual and legal conclusions are

clear to the parties and to reviewing courts); Sims v. State,

99 S.W.3d 600, 604 (Tex. Crim. App. 2003)(stating that when

rejecting a defendant's factual sufficiency claim, TRAP 47.1

"suggests that the court of appeals should 'show their work',

much as we had to when learning long division in elementary

school").

Was The Denial Of Relief An Arbitrary Decision

According to habeas counsel, the Court of Criminal Appeals

has made a jaabtern of not explaining in any meaningful way why

it rejects trial court recommendations to grant relief in cases

in which he or his son represented the applicants. See Ex parte

Molinaj No. WR-83,007-01, 2015 WL 519737 (Tex. Crim. App. Nov.

25, 2015)(not designated for publication)(rejecting

recommendation to grant relief on an ineffectiveness claim with

the comment that findings and conclusions "are not supported by

the record"); Ex parte Strickland, No. WR-27,079-02, 2020 WL

3635907 (Tex. Crim. App. July 21, 2020)(not designated for

publication)(same); Ex parte Connors, WR-73,203-03, 2020 WL

1542424 (Tex. Crim. App. Apr. 1, 2020)(not designated for

publication) (rej ecting recommendation to grant relief on a

suppression of evidence claim with the comment that the findings

and recommendation "are not supported by the record"); Ex parte

Rene, No. WR-90,417-01, 2021 WL 1257226 (Tex. Crim. App. Feb.

24, 2021)(not designated for publication)(rejecting

recommendation to grant relief on suppression of evidence,

false testimony, and ineffectiveness claims with the comment

that Eecommendation "is not supported by the record"). Applicant

is concerned that the denial of relief without explanation as

to why the court rejected the trial court's recommendation was

more about the court's disfavor of habeas counsel that the

circumstances of his case. See Ex parte Stoneman, No. WR-86,96601, LEXIS 369 (Tex. Crim. App. May 9, 2018)(not designated for

publication)(noting counsel's repeated instances of unpro

unprofessional behavior in habeas proceedings, and reporting

counsel to the Office of the Chief Disciplinary Counsel of the

State Bar of Texas).

Whatt:Procedural Due Process Requires

"As a general proposition, reviewing courts ought to

mention a party's number one argument and 'explain' why it does

notrhave the persuasive force that the party thinks it does.

The party may be dissatisfied with the decision, but at least

he will know the reason he was unsuccessful." Sims, 99 S.W.3d

at 603. "Where the issues are settled, the court should write

a brief memorandum opinion no longer than necessary to advise

the parties of the court's decision and the basic reasons for

it." Id. at 604.

In Applicant's case, the Court of Criminal Appeals has

failed to adhere to its own procedural requirement and inform

Applicant, to his apparent dissatisfaction, the reason that he

was unsuccessful.

IV. CONCLUSION.

The Fourteenth Amendment of the United States Constitution

forbids government conduct that deprives "any person of life,

liberty, or property without due process of law." Procedural

due process may require government to assure that individuals

are afforded certain procedures before they are deprived of

life, liberty or property. This Court has an opportunity to

clarify once, and for all, whether the State of Texas denies

habeas applicant's their constitutional right to procedural

due process when it rejects a habeas court's factual findings

and conclusions of law recommending relief without providing

the applicant with any explanation for its decision.

V. RELIEF REQUESTED.

WHEREFORE , PREMISES considered, Applicant respectfully

requests that this Honorable Court enter an order granting him

a writ of certioari, and remand his case back to the Court of

Criminal Appeals with an order that Applicant be granted a new

trial, or at the very least, that an explanation be given

explaining the reason for the court's decicion, and any such

further relief that is proper.

REASONS FOR GRANTING THE PETITION

This Court should grant this petition because it confronts

the Court with a very important question of law. What does due

process require of the state's highest court in deciding a

habeas applicant's case whenr.it chooses to reject a trial

court's factual findings and conclusions of law recommending

relief. This will not only assist Applicant, but also the

countless others who may come after him, in ensuring that each

of these persons may understand why it is that they are being

denied the ultimate liberty interest, when clearly there

appears to be a dispute as to the legality of their confinement

amongst the judicial bodies. This case gives this Court an

opportunity to clarify once and for all that persons deprived

of liberty are entitled to know a court's reasoning for such

deprivations.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

.—_J H .

2. )

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.