Opposition Brief — Victor Santana, Petitioner v. Texas

No. 22-1139

IN THE

Supreme Court of the United States

__________________________

VICTOR SANTANA,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

_________________________

On Petition for Writ of Certiorari to the

Texas Court of Criminal Appeals

___________________________

RESPONDENT’S BRIEF IN OPPOSITION

___________________________

KEN PAXTON

Attorney General

of Texas

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

BRENT WEBSTER

First Assistant

Attorney General

LORI BRODBECK*

Assistant Attorney General

* Counsel of Record

JOSH RENO

Deputy Attorney General

for Criminal Justice

P.O. BOX 12548

Austin, Texas 78711-2548

(512) 936-1400

Lori.Brodbeck@oag.texas.gov

Attorneys for Respondent

QUESTIONS PRESENTED

Petitioner, Victor Santana (Santana) was convicted

for beating his girlfriend’s adult daughter on the head

with a club-sized stick. He contends that the Texas

Court of Criminal Appeals (TCCA) erred during state

habeas review when it denied his ineffectiveassistance-of-trial-counsel claims. Specifically, he

argues that the TCCA’s decision, by overruling the

lower court’s recommendation to grant habeas relief,

was contrary to this Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984).

Respondent (the “State”) objects to Santana’s

Questions Presented. Instead, the State suggests the

following:

Should the Court grant certiorari to determine

whether the TCCA’s denial of garden variety

ineffective-assistance-of-trial-counsel claims

was contrary to Strickland when the decision

below is splitless, fact-bound, and correct?

i

TABLE OF CONTENTS

Question Presented........................................................i

Table of Contents ......................................................... ii

Index of Authorities .................................................... iii

Introduction .................................................................. 1

Opinions Below ............................................................. 2

Jurisdiction ................................................................... 2

Constitutional Provision Involved ............................... 2

Statement of the Case .................................................. 2

Summary of the Argument ........................................... 5

Argument ...................................................................... 5

I.

II.

III.

IV.

The TCCA’s Decision Was Narrowly Decided

Based Upon Non-Extensible and Fact-Bound

Application of Settled Law Under Strickland.

........................................................................ 5

This Case Involves Straightforward Strickland

Claims More Appropriate for a Federal

Habeas Proceeding and Offers No Important

or Compelling Reason for Review. ............... 11

Santana Presents No Meaningful Error in the

Manner Through Which the TCCA Denied

Relief .............................................................. 13

The State Court Record Supports the TCCA’s

Denial of Relief. ............................................. 14

Conclusion ................................................................... 23

ii

INDEX OF AUTHORITIES

CASES

Anders v. California, 386 U.S. 738 (1967) ...................3

Bd. of Pardons & Paroles ex rel. Keene v. Ct. of Appeals

for Eighth Dist., 910 S.W.2d 481

(Tex. Crim. App. 1995) ......................................4

Burt v. Titlow, 571 U.S. 12 (2013).................. 14–15, 21

Chandler v. United States, 218 F.3d 1305

(11th Cir. 2000) .................................................9

Cullen v. Pinholster, 563 U.S. 170 (2011) ..................15

Duncan v. Walker, 533 U.S. 167 (2001) .....................12

Dunn v. Reeves, 141 S. Ct. 2405 (2021) ......................14

Ex parte Reed, 271 S.W.3d 698

(Tex. Crim. App. 2008) .................................4, 13

Ex parte Santana, No. WR-92,804-01,

2023 WL 2146382

(Tex. Crim. App. Feb. 24, 2021) ...............Passim

Fretwell v. Norris, 133 F.3d 621

(8th Cir. 1998) ....................................................9

Grayson v. Thompson, 257 F.3d 1194

(11th Cir. 2001) ..................................................9

Greiner v. Wells, 417 F.3d 305 (2d Cir. 2005) ..............8

Harrington v. Richter, 562 U.S. 86 (2011) ..... 15, 19, 22

Johnson v. Williams, 568 U.S. 289 (2013) .............6, 23

Kyles v. Whitley, 498 U.S. 931, 932 (1990) ................11

Lockhart v. Fretwell, 506 U.S. 364 (1993)..................20

Maryland v. Kulbicki, 577 U.S. 1 (2015)..............20–21

Michel v. State of La., 350 U.S. 91 (1955) ..................20

Murtishaw v. Woodford, 255 F.3d 926

(9th Cir. 2001) ...................................................9

Padilla v. Kentucky, 559 U.S. 356 (2010) ..................15

iii

Romine v. Head, 253 F.3d 1349, 1357

(11th Cir. 2001) ..............................................8–9

Ross v. Moffitt, 417 U.S. 600 (1974) .........................2, 6

Santana v. State, No. 14-14-00130-CR,

2014 WL 5795482

(Tex. App.—Houston [14th Dist.] 2014) ...........3

Strickland v. Washington,

466 U.S. 668 (1984). .................................Passim

Teague v. Lane, 489 U.S. 288 (1989) ..........................17

United States v. Johnson, 268 U.S. 220 (1925)..........21

White v. Thaler, 610 F.3d 890 (5th Cir. 2010) .........6–8

Yarborough v. Gentry, 540 U.S. 1 (2003) ...................21

STATUTES

28 U.S.C. § 2244(d) .....................................................12

28 U.S.C. § 2254 ..........................................................12

RULES

Sup. Ct. R. 10 ...................................................... passim

iv

INTRODUCTION

Santana fails to identify any questions that

warrant this Court’s review. This is so because the

issues decided below involve highly fact-bound

applications of settled Strickland precedent. Like most

judicial applications of Strickland, the decision below

is tightly confined to the peculiar circumstances facing

trial counsel in 2014, the time of trial. Critically, the

TCCA’s unpublished decision is also tied to the

unusual timing of Santana’s state habeas application,

which he filed almost seven years after trial. The delay

meant that the lead defense attorney could no longer

recall the circumstances of trial, or the rationale

behind his strategic and tactical decision-making.

As he must, Santana expends considerable effort

suggesting that no attorney, anywhere, would ever

pursue a strategy that permitted the State to introduce

“objectionable” testimony about him through the

victim of his aggravated assault. This strategy

intended to show that Santana’s victim was ultimately

unreliable regarding the charged offense. But

Strickland repudiates Santana’s push for per se rules

in favor of flexible standards for constitutional

competence. Necessarily then, the decision below

creates no split of authority because the cases he cites

all involve a different mix of material details in support

of largely insular holdings. He essentially asks the

Court to renounce years of precedent refusing to

impose or countenance such formalities because they

restrict the wide latitude counsel must have in making

tactical decisions at trial. Indeed, Santana pursues

simple error correction for its own sake, with reference

to a cherry-picked description of the state court record.

1

He alleges nothing more than that the TCCA

misapplied a properly stated rule, which is an

insufficient basis for this Court’s review. See Sup. Ct.

R. 10; Ross v. Moffitt, 417 U.S. 600, 616–17 (1974)

(“This Court’s review . . . is discretionary and depends

on numerous factors other than the perceived

correctness of the judgment we are asked to review.”).

Accordingly, Santana’s complaints do not warrant

certiorari review.

OPINIONS BELOW

The TCCA’s opinion denying Santana’s state

habeas application (located at Pet’r App’x. 1a–2a) is not

reported. Finally, the district court’s recommended

findings and conclusions (located at Pet’r App’x. 3a–

29a) are also unreported.

JURISDICTION

The Court has jurisdiction to review the TCCA’s

judgment denying Santana habeas relief under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Question Presented concerns the Sixth

Amendment right to “effective counsel” as described in

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

STATEMENT OF THE CASE

Santana was convicted of aggravated assault for

striking Kristine Gonzalez in the head twice with a

hickory stick that weighed roughly two pounds and

resembled the handle of an axe or sledgehammer.

2

Resp’t App’x. 7b–8b, 3e, 7e–8e, 11e. An intermediate

appellate court, after reforming the face of the

judgment to reflect aggravated assault in the title,

affirmed Santana’s conviction and forty-year sentence,

after giving Santana a chance to present claims once

his appellate counsel filed an Anders1 brief. Santana v.

State, 2014 WL 5795482 (Tex. App.—Houston [14th

Dist.] 2014). Santana did not file a petition for

discretionary review (PDR) with the TCCA. See id.

Approximately six-years after the intermediate

court affirmed his conviction, Santana sought state

habeas relief based mostly on Strickland claims,

therefore, both of his trial attorneys submitted

affidavits in response. Resp’t App’x. 1c–10c; Pet’r

App’x. 30a–38a. Sarah Doezema stated that she was

not the lead attorney and did not have a separate file

for Santana’s case; but, she recalled that the defense

theory centered on the “complaining witness ma[king]

several unreliable statements,” and therefore could not

credible. Resp’t App’x. 2c–3c. She explained that when

she did not object to objectionable testimony, the

testimony was not contrary to their defense strategy,

thus, it would help their case. Id. at 2c–3c, 8c. The lead

defense attorney, George Powell, explained that he had

a file for Santana’s case, but it was destroyed in 2017

by Hurricane Harvey. Pet’r App’x. 30a. He admitted he

could not independently recall the case, including any

strategy he had for his decisions at trial. Id. at 30a–

31a. Despite Powell’s inability to recall his strategic or

tactical decision-making at trial, he retrospectively

opined in relation to some, but not all, of Santana’s

1

Anders v. California, 386 U.S. 738 (1978).

3

questions that he would have pursued different tactics

at trial. Id. at 31a–38a.

The state habeas trial court2 entered proposed

findings recommending that habeas relief be granted.

Pet’r App’x. 3a–29a. Notably, the district judge

presiding over the state habeas proceeding did not

preside over Santana trial. Resp’t App’x. 1a, 23a, 1e.

Thus, the state habeas court had no independent

recollection of the trial proceedings and relied only

upon the affidavits. Regarding Santana’s ineffective

assistance claims, the state habeas court found there

was either no defense strategy to explain the alleged

errors or that any strategy was unreasonable. Pet’r

App’x. 7a–11a. The TCCA, rejecting the state habeas

findings and recommendation, denied relief in a

reasoned, albeit briefly, written order. Ex parte

Santana, 2023 WL 2146382, No. WR-92,804-01 (Tex.

Crim. App. 2023). The TCCA concluded that, based on

its independent review, the lower court’s “findings and

recommendation [were] not supported by the record,”

and Santana failed to meet his burden under either

Under Texas procedure, “[j]urisdiction to grant

postconviction habeas corpus relief on a final felony conviction

rests exclusively with [the TCCA]. Bd. of Pardons & Paroles ex rel.

Keene v. Ct. of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex.

Crim. App. 1995) (emphasis added). Hence, the state habeas trial

court functions much like a “special master,” authorized to make

advisory factual findings and legal recommendations, which the

TCCA is fully authorized to reject. See, e.g., Ex parte Reed, 271

S.W.3d 698, 728 (Tex. Crim. App. 2008) (“When our independent

review of the record reveals that the trial judge’s findings and

conclusions are not supported by the record, we may exercise our

authority to make contrary or alternative findings and

conclusions.”).

2

4

prong from Strickland. Id. Santana now seeks a writ of

certiorari.

SUMMARY OF THE ARGUMENT

Santana’s issues are not worthy of certiorari. First,

Santana cannot possibly show that the TCCA’s

rejection of his ineffective assistance claims was

contrary to Strickland. He can only propose simple

error correction, which this Court’s rules generally

prohibit. Moreover, he presents no error which could

have rendered his state habeas proceeding

unconstitutional. Finally, the TCCA correctly applied

Strickland and its principles. Santana failed to meet

his burden to overcome the powerful deference owed to

trial strategy. He failed to show that his trial attorneys’

performances fell below an objective standard of

reasonableness. And he has not shown that, outside

their alleged unprofessional errors, there was a

reasonable probability that the result of his criminal

proceeding would have been different.

ARGUMENT

I.

The TCCA’s Decision Was Narrowly

Decided Based Upon Non-Extensible and

Fact-Bound Application of Settled Law

Under Strickland.

Santana’s petition fails from the outset. The TCCA

rejected his claims, declined to adopt the lower court’s

findings, and concluded Santana simply failed to meet

the Strickland standard. Ex parte Santana, 2023 WL

2146382. Disagreeing with this conclusion, Santana

now petitions this Court to review the TCCA’s

decisions. But he fails to identify any questions that

5

warrant this Court’s review. See Sup. Ct. R. 10. The

issues decided below are fact-bound resolutions of

settled law. And like most applications of established

Strickland precedent, the decision here creates no split

of authority despite Santana’s suggestion to the

contrary. Instead, Santana pursues basic error

correction, arguing that the TCCA misapplied a

properly stated rule, which is an insufficient basis for

this Court’s review. See Sup. Ct. R. 10; Ross, 417 U.S.

at 616–17. This point bears repeating: Santana asks

the Court to review the entirety of a “cold” state court

record; to re-weigh evidence and resolve record-based

factual disputes; and finally, to issue a reasoned

opinion regarding a garden-variety Strickland claim.

See, e.g., Pet. Cert. 15 (“When the trial record is

reviewed carefully, it is apparent that trial counsel did

not intend to open the door to the tidal wave of prior

bad act evidence.”). But the Court normally does “not

grant a certiorari to review evidence and discuss

specific facts.” United States v. Johnson, 268 U.S. 220,

227 (1925); accord Sup. Ct. R. 10 (certiorari is “rarely

granted” when the petition asserts “erroneous factual

findings”).

Santana’s failing in this regard becomes apparent

when analyzing the “precedent” he believes conflicts

with the TCCA’s decision below. For example, Santana

suggests a conflict with White v. Thaler, 610 F.3d 890

(5th Cir. 2010). Pet. Cert. 13–15. To be sure, the court

in White determined that defense counsel was

constitutionally deficient when he opened the door for

the prosecutor to impeach White with his post-arrest

silence, which was otherwise inadmissible. White, 610

F.3d at 900. However, the Fifth Circuit’s decision was

critically dependent on an additional fact, which is not

6

present here: In White, defense counsel submitted an

affidavit during state habeas in which he affirmatively

averred that his ”questioning with respect to White’s

post-arrest silence,” which opened the door for the

prosecutor to impeach White, “was not part of a

strategy.” Id. This admission helped to overcome

Strickland‘s powerful presumption in favor of strategic

thinking and attorney competence.

Santana seemingly recognizes the critical nature of

defense counsel’s admission in White when he

observes, “like Mr. Santana’s case, trial counsel [in

White] admitted that his opening the door to postarrest silence was not strategic.” Pet’r Cert. 14

(emphasis added). Santana repeats this tack in the

next paragraph when he says, “Also like Santana’s

case, defense counsel [in White] offered no strategy for

his failure to object. Id. (emphasis added). Thus,

according to Santana’s own logic, White applies here

only if trial counsel affirmatively admitted that their

decision to permit certain testimony from the victim

was not strategic. See id.

However, the record here affirmatively contradicts

Santana’s suggestion that trial counsel admitted their

decisions at trial were not strategic. This becomes

apparent with reference to two facts that Santana does

not fully acknowledge in his petition. First, the lead

defense attorney, George Powell, lost his file for

Santana’s January 2014 trial during Hurricane

Harvey. See Pet. App’x. 30a. He consistently averred

that he could not recall his strategic thinking for any

of the tactics or strategies he may have pursued at

trial. See generally, id. at 30a–38a. Santana’s pursuit

of his Strickland claims nearly seven years after the

7

trial surely contributed to Powell’s memory lapse.

Second, Santana neglects to mention that the secondchair defense attorney, Sarah Doezema, did recall

their overall defense strategy, which was generally

consistent with trial counsels’ actions at trial. Compare

Resp’t App’x. 2c–3c (the defense strategy was to

demonstrate the victim’s “several[,] unrealiable

statements”), with Resp’t App’x. 10e (the victim

admitted she went back to caring for her grandmother

and later to work after receiving the injury), and Resp’t

App’x. 11e (the victim admitted she provided multiple

explanations for her injuries), and Resp’t App’x 12e

(victim admitted that, while the case was pending, she

lived at home where the abuse occurred). In sum,

unlike defense counsel in White, Powell never stated

that he lacked a strategy—he simply couldn’t

remember. Conversely, Doezema averred that they

affirmatively pursued a strategy that was consistent

with the events at trial.

Moreover, Powell’s inability to remember his

planning and strategic thinking cannot satisfy

Santana’s burden of proof or overcome the strong

presumption of reasonable assistance—indeed,

counsel’s failure to remember redounds in favor of

attorney competence, not against. See, e.g., Greiner v.

Wells, 417 F.3d 305, 325 (2d Cir. 2005) (“Time

inevitably fogs the memory of busy attorneys. That

inevitability does not reverse the Strickland

presumption of effective performance. Without

evidence establishing that counsel’s strategy arose

from the vagaries of ignorance, inattention or

8

ineptitude, Strickland’s strong presumption must

stand.”).3

Finally, Santana’s effort to identify an issue worthy

of certiorari by suggesting a pure legal conflict between

the TCCA’s decision below and the Strickland

implementations of a small handful of circuit and state

courts, fails too. See Pet. Cert. 12–16. To be sure, the

courts in each instance recognized Strickland

violations—but only after weighing and resolving

See also Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.

2001) (“The problem is that by the time Thomas was asked about

the matter at the state habeas hearing, a decade had passed and

he could no longer remember his reasoning about not using Mrs.

Romine’s prior convictions to impeach her. But the placement of

burdens in a federal habeas proceeding means that the effect of

that problem falls on Romine.”); Fretwell v. Norris, 133 F.3d 621,

623–24 (8th Cir. 1998) (“The trial had taken place nine years

earlier, and counsel’s files were later destroyed in a flood. Yet

counsel testified at the hearing without reviewing the extensive

state court record, which is part of our record on appeal. Because

he was unprepared, counsel was unable to explain, or even recall,

the reasons underlying much of his performance before and

during trial. The district court repeatedly used counsel’s inability

to recall as establishing lack of competent performance. This

violates the presumption that attorneys perform reasonably.”);

Grayson v. Thompson, 257 F.3d 1194, 1268 (11th Cir. 2001)

(where record is silent why counsel did not file motion to suppress,

court presumes counsel acted properly); Murtishaw v. Woodford,

255 F.3d 926, 952 (9th Cir. 2001) (a silent record means the

allegations are not supportable and court assumes counsel

consulted); Chandler v. United States, 218 F.3d 1305, 1314 n.15

(11th Cir. 2000) (en banc) (“An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption.

Therefore, ‘where the record is incomplete or unclear about

[counsel]’s actions, we will presume that he did what he should

have done, and that he exercised reasonable professional

judgment.’”).

3

9

material issues of historic fact, which included review

of the detailed circumstances animating defense

counsel’s conduct at trial. But none of the cited cases

holds that trial counsel is categorically deficient for

failing to mechanistically object to all inadmissible

evidence at trial. On this point Santana is simply

incorrect. For example, in Pape v. Thaler, the Fifth

Circuit recognized that a defensive strategy in which

trial counsel directly elicited testimony regarding the

extraneous bad acts of his own client from the mother

of the victim—in the calculated hope that the jury

would disbelieve her testimony—“fell within the wide

range of trial tactics that constitute reasonable

assistance.” 645 F.3d 281, 290–91 (5th Cir. 2011), cert.

denied, 565 U.S. 1162 (2012). If, in his reply, Santana

tries to distinguish the facts and circumstances facing

the court in Pape, he will have gone far to conceding

that no overriding legal principle controls the outcome

here. Facts matter.

In sum, the decision below does not “conflict” with

any decision of this Court or of any other court. Beyond

recitation that he is entitled to relief, and cursory

discussion of a few Circuit opinions, Santana advances

no special or important reason to grant a writ of

certiorari for his garden-variety Strickland claim. And

none exists. The facts of each Strickland claim—

particularly the underlying trial strategy of any given

attorney—vary case-to-case.

10

II.

This Case Involves Straightforward

Strickland Claims More Appropriate for a

Federal Habeas Proceeding and Offers No

Important or Compelling Reason for

Review.

Where, as here, certiorari review is requested for

a simple disagreement with a state court decision,

consideration of state collateral review proceedings by

this Court is particularly inapt. Justice Stevens

explained:

[T]his Court rarely grants review at

this stage of the litigation even when

the application for state collateral

relief is supported by arguably

meritorious federal

constitutional

claims. Instead, the Court usually

deems federal habeas proceedings to be

the more appropriate avenues for

consideration of federal constitutional

claims.

Kyles v. Whitley, 498 U.S. 931, 932 (1990) (Stevens, J.,

concurring in denial of a stay). Justice Stevens’s

reasoning applies here. Santana alleges that trial

counsel were ineffective for not objecting to hearsay

testimony, opening the door for extraneous bad acts

evidence, and not requesting certain jury instructions.

Again, the TCCA found adversely to Santana based on

the record, which supports trial attorney Doezema’s

affidavit explaining the defense’s strategic decisions.

Ex parte Santana, 2023 WL 2146382; Resp’t App’x. 2c–

3c, 8c. Doezema clearly explained the defense strategy,

which the TCCA implicitly found reasonable when it

11

rejected those claims. When reading the entire trial

record, the decisions of trial counsel to act or not act at

any given point line up with that strategy, as explained

below.

Considering the above, there are significant

prudential concerns raised by the procedural posture

of Santana’s case. It is undoubtedly the better course

for the lower federal courts to consider these heavily

fact-bound Strickland claims pursuant to 28 U.S.C. §

2254. Conveniently, Santana excludes or fails to fully

discuss sections of the record running contrary to his

claims, including Doezema’s affidavit. Meanwhile, he

acknowledges that he could proceed to federal district

court to file a federal habeas petition pursuant to 28

U.S.C. § 2254. Pet. Cert. 18. He further admits he

would now be barred by AEDPA’s statute of

limitations. Id.; 28 U.S.C. § 2244(d). Therefore, he

pleads, “only this Court can ensure that the [TCCA’s]

decision actually applied this Court’s guiding

principles.” Id.

Santana unabashedly asks the Court to disclaim its

historic preference of channeling garden-variety

Strickland claims through federal habeas because his

six-year delay makes them untimely. In this, he seeks

to deny the State the benefit of the limitations period

in 28 U.S.C. § 2244(d), which was designed to ensure

finality to state convictions. See Duncan v. Walker, 533

U.S. 167, 179 (2001). The Court should reject Santana’s

invitation.

12

III.

Santana Presents No Meaningful Error in

the Manner Through Which the TCCA

Denied Relief.

Santana seemingly attacks the state habeas

process when he asserts that the TCCA, in an

“unreasoned” opinion, fails to apply this Court’s

principles. Pet. Cert. 11, 17. But contrary to this

assertion, the TCCA issued a brief, yet reasoned,

decision citing the controlling case for ineffective

counsel claims.

Although succinct, the TCCA’s written order

plainly stated why the state habeas trial court’s

specific findings favorable to Santana were wrong,

rejected those findings, found Santana failed to meet

his burden, and then denied relief on its own review of

the record. Ex parte Santana, 2023 WL 2146382. As

the TCCA quoted from its previous opinion:

When our independent review of the []

record reveals findings and conclusions

that are unsupported by the record, we

will, understandably, become skeptical

as to the reliability of the findings and

conclusions as a whole. In such cases, we

will proceed cautiously with a view

toward exercising our own judgment.

And when we deem it necessary, we will

enter alternative or contrary findings

and conclusions that the record supports.

Ex parte Reed, 271 S.W.3d at 727. Applying its own

procedures, the TCCA found Santana failed to meet

13

either prong under the Strickland standard and denied

relief. Ex parte Santana, 2023 WL 2146382.

Even with the TCCA’s succinct denial of relief

without an extended opinion, Santana still has no error

for this Court to review. Denying relief without an

opinion does not violate Strickland, or any other

constitutional provision as the “federal courts have no

authority to impose mandatory opinion-writing

standards on state courts.” Johnson v. Williams, 568

U.S. 289, 300 (2013). Thus, a state court’s writing

standard does not give rise to an error, and simply

reemphasizes that this case should be first heard in

federal court under AEDPA. As such, there is no error

in the TCCA’s written order, and a writ of certiorari

should not issue.

IV.

The State Court Record Supports the

TCCA’s Denial of Relief.

Even if Santana somehow convinced this Court to

perform a de novo review of his Strickland claims, he

still fails to present a valid reason granting certiorari.

He asks this Court to reject the TCCA’s decision and

accept the state habeas trial court’s perception of the

facts and legal conclusions. Yet Santana ignores the

TCCA’s implicit conclusion, which tracks the core legal

principles of Strickland—deference is due to trial

counsels’ performance and their chosen strategies. To

grant Santana habeas relief, a reviewing court must

second-guess these strategic decisions, but no evidence

supports such hindsight. Because doing so would run

contrary to this Court’s precedent, the TCCA correctly

denied habeas relief. See Dunn v. Reeves, 141 S. Ct.

2405, 2410 (2021); Burt v. Titlow, 571 U.S. 12, 22–23

14

(the defendant carries the burden of rebutting the

presumption that counsels’ strategies were reasonable,

and an “absence of evidence cannot overcome” that

presumption).

To prove ineffectiveness under Strickland’s

familiar standard, an inmate must establish that the

attorneys’ actions were deficient and that such

deficiency prejudiced the defense. Strickland, 466 U.S.

at 687. A failure to prove either requirement results in

the denial of the claim. Id. at 697. “Surmounting

Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010). “Even under de

novo review, the standard for judging counsel’s

representation is a most deferential one.” Harrington

v. Richter, 562 U.S. 86, 105 (2011).

Establishing a deficient performance requires an

inmate to show that “counsel’s representation fell

below an objective standard of reasonableness,” and

there is a “strong presumption” that counsel’s

representation was within the “wide range” of

reasonable professional assistance. Strickland, 466

U.S. at 688–89. This presumption requires that courts

not simply “give [an inmate’s] attorneys the benefit of

the doubt, but to affirmatively entertain the range of

possible reasons [] counsel may have had for proceeding

as they did.” Cullen v. Pinholster, 563 U.S. 170, 196

(2011) (citations omitted) (internal quotation marks

omitted) (emphasis added).

15

Concerning

prejudice,

a

petitioner

must

demonstrate “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.” Strickland, 466 U.S. at

694. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id.

at 693 (emphasis added). Rather, counsel’s errors must

be “so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.” Id. at 687.

For deficiency, Santana asserts that attorneys,

Powell and Doezema, were ineffective for failing to: (1)

object to the Prosecutor bolstering the complainant’s

testimony through her opinion and through other

testimony; (2) object to hearsay testimony; (3) object to,

or otherwise avoiding opening the door for, evidence of

Santana’s prior bad acts; (4) request a limiting

instruction for the prior bad acts; (5) include the

required definition of serious bodily injury in the jury

charge; and (6) object to the testimony being read back

to the jury. Pet. Cert. at 3–10. He further alleges that,

at the state habeas proceeding, “defense counsel

offered no reasonable trial strategy for the errors.” Id.

at 12.

For the prejudice prong, Santana points to a jury

note that revealed that eight jurors were in favor of a

not guilty verdict. Pet. Cert. 8. The next jury notes

requested to hear the testimony concerning the “abuse

of other family members,” and when the victim claimed

that another person “did it.” Id. at 8–9. Santana argued

that within an hour of the jury having all this

testimony read back to them, they returned a guilty

16

verdict. Id. at 9. Finally, Santana claims counsel’s

many alleged failures amounted to cumulative

ineffective assistance. Id. at 9–11. The state habeas

court agreed that the “combined errors gave rise to

ineffective assistance of counsel.” Pet. App’x. at

28a−29a.4

But the record refutes Santana’s assertion that his

attorneys had no reasonable strategy. Powell’s file had

been destroyed by Hurricane Harvey, and he admitted

he could not independently recall Santana’s case or

why he made certain decisions during the trial. Pet.

App’x. 30a−37a (Nos. 1, 2, 9 through 15, 20, 22, 24, 27

through 28, 30 through 31, 38). However, Doezema

could specifically recall that the defense had a trial

strategy in place. Resp’t App’x. 2a–3c, 8c. She

explained that certain objections would not be “in the

best interest of [the] theory of the defense,” which was

to attack the credibility of the victim using her varied

and “unreliable statements.” Id. at 2a–3c (No. 5). Thus,

the defense strategy was to further highlight the

victim’s inconsistencies, which would include declining

Santana fails to demonstrate any controlling case law

from this Court requiring the TCCA to cumulate counsels’ alleged

errors. Given the lack of this Court’s precedent on this issue,

Santana’s claim would be barred under Teague v. Lane, 489 U.S.

288, 301 (1989). That is, this Court would have to fashion a new

rule to overturn the TCCA’s decision. A new rule exists “if [a

matter’s] result was not dictated by precedent existing at the time

the defendant’s conviction became final.” Id. at 301 (emphasis

added). This Court has made clear that courts are precluded from

granting habeas relief based on a new rule. Id. at 316.

4

17

to object if the evidence helped “bolster [that] theory.”

Id. at 2c–3c (No. 5), 8c (Nos. 32–35).

The record supports Doezema’s averment that the

defense’s strategy relied on the complainant’s

inconsistent statements. The cross-examination of

Henry Anderson, Officer Hope and the victim focused

on her multiple stories regarding her injuries. Resp’t

App’x. 2e, 4e, 10e–11e. In her closing, Doezema

reminded the jury that the victim submitted “multiple

stories,” to multiple people that should cause them to

“question her credibility.” Id. at 14e–16e. Doezema

even used the victim’s testimony on the extraneous bad

acts to challenge her credibility. She questioned why “a

24-year-old woman,” would not simply “leave,” “move

out,” or “tell on this guy?” Id. at 16e. Doezema further

noted that the prosecution declined to present

testimony from the other witnesses in the house, even

though it “ha[d] the power to subpoena those people.”

Id. Powell’s closing also reflected this defense theory by

asking the jury to “look closely at” the victim’s

credibility. Id. at 17e. He mirrored Doezema’s

argument that, even at twenty-four, the victim never

reached out to the police, a friend, or co-worker, despite

the abuse. Id. He concluded that “one convenient way

to get rid of somebody that you don’t like is to accuse

them of a crime. . .” Id. at 18e.

The state habeas trial court found this defense

theory and strategy as “unreasonable.” Pet’r App’x. 10a

(No. 33). The state habeas court further, and

inexplicably, found trial counsels’ decisions were not

based on any “valid” or “reasonable” defense strategy.

Id. at 3a–10a (Nos. 2, 12, 16, 20, 27, 30, and 33). In

response, the State filed its very detailed objections to

18

the findings. Resp’t App’x. 1b–27b.5 The TCCA

specifically mentioned these objections in its written

order before denying relief. Ex parte Santana, 2023 WL

2146382. The objections noted that, in ruling the

defense had no reasonable strategy, the state habeas

court inexplicably relied on Powell’s affidavit yet

dismissed Doezema’s declaration. Resp’t App’x. 3b–4b.

However, Powell could recall “nothing about

[Santana’s] case. Id. at 4b. Thus, he could only

contribute hindsight suggestions concerning his trial

performance, which this Court strictly prohibits. But

Strickland prohibits such hindsight review. See, e.g.,

Richter, 562 U.S. at 109–10.6 Because “it is all too easy

for a court, examining counsel’s defense after it has

proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable,” that

reviewing court must remove “the distorting effects of

The State filed lengthy, substantive objections to the state

habeas court’s findings, in which the State thoroughly and

thoughtfully repudiated the recommendation to grant Strickland

relief. Given the word-count limit for this brief in opposition, the

State is unable to reproduce that comprehensive analysis here.

Hence, in the unlikely event the court opts to explore the

“correctness” of the underlying Strickland denial, the State asks

the Court to review its objections below. See Resp’t App’x. 1b–27b.

5

“After an adverse verdict at trial even the most

experienced counsel may find it difficult to resist asking whether

a different strategy might have been better, and, in the course of

that reflection, to magnify their own responsibility for an

unfavorable outcome. Strickland, however, calls for an inquiry

into the objective reasonableness of counsel’s performance, not

counsel’s subjective state of mind.” Richter, 562 U.S. at 109–10.

6

19

hindsight.” Strickland, 466 U.S. at 689 (emphasis

added).

The State correctly pointed out that the lower

habeas court’s findings failed to align with this

Strickland precept. Resp’t App’x. 4b. It further argued

that “[n]one of the habeas court’s findings and

conclusions regarding defense counsel’s strategic

thinking and defensive strategy are supported by the

record.” Id. at 18b. Then using Strickland’s required

parameters, the State’s arguments contemplated

counsels’ thought processes based on the record, while

fully embracing the reasonableness of their strategic

decisions at the time of the trial—not in hindsight. Id.

at 3b–19b; Strickland, at 690 (“counsel is strongly

presumed to have rendered adequate assistance and

made all significant decisions in the exercise of

reasonable professional judgment.”); Maryland v.

Kulbicki, 577 U.S. 1, 4 (courts must “combat” the

“’natural tendency to speculate as to whether a

different trial strategy might have been more

successful.”) (quoting Lockhart v. Fretwell, 506 U.S.

364, 372 (1993)). Indeed, it is Santana’s burden to

overcome the strong presumption that his attorneys’

performances were within the wide range of reasonable

professional assistance. Strickland, 466 U.S. at 689

(“the defendant must overcome the presumption that,

under the circumstances, the challenged action ‘might

be considered sound trial strategy.’”) (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)) (emphasis added).

That Santana—or a reviewing judge—would have in

retrospect made different trial decisions does not

render this strategy unreasonable. Id. (“There are

countless ways to provide effective assistance in any

20

given case. Even the best criminal defense attorneys

would not defend a particular client in the same way.”).

Furthermore, Powell’s seemingly inadvertent

decision to open the door for the admissions of

extraneous bad acts could also fall within the realm of

reasonable professional assistance. Again, Powell

could not recall his reasons for asking the questions

found to have opened the door. Pet’r App’x. 32a (No.

10). Powell claimed—again in hindsight—that he

“would be inclined to withdraw any questions [that] . . .

would make [his] client more susceptible to any

evidence of prior bad acts.” Id. at 32a–33a (No. 11);

Resp’t App’x. 8e (Powell asked Kristina why she did not

like Santana, and the prosecution asked to approach).

At the trial, Powell argued that he did not believe he

had opened the door for Santana’s prior bad acts.

Resp’t App’x. 8e. The defense then offered to withdraw

the question and disagreed with the prosecution’s

argument that it was too late. Id. at 9e. Ultimately, the

trial court agreed with the State. Id.

But the defense later used this evidence to further

their theory that Kristina, despite all this abuse, still

chose to stay in the household and never reported the

abuse to anyone. Id. 12e, 16e–18e. Counsel further

capitalized on the fact that the prosecution brought

forth no other witness to verify Kristina’s varying

claims of abuse. Id. at 16e. Moreover, even if Powell’s

question were not used strategically, the “Sixth

Amendment does not guarantee the right to perfect

counsel.” Titlow, 571 U.S. at 24; Kulbicki, 577 U.S. at

5 (the lower appellate court “demanded something

close to ‘perfect advocacy’—far more than the

‘reasonable competence’ the right to counsel

21

guarantees.”) (quoting Yarborough v. Gentry, 540 U.S.

1, 8 (2003)). Indeed, even with an “inadvertent,”

mistake, “relief is not automatic.” Yarborough, at 8.

Thus, Powell’s question perceived as a mistake should

not be automatically deemed deficient, particularly

when the defense strategically used Kristine’s

response to support their theory. Richter, 568 U.S. at

105 (under prevailing professional norms, the

“question is whether there is any reasonable argument

that counsel satisfied Strickland’s deferential

standard,” and not whether counsel’s performance

“deviated from best practices or most common

custom.”).

As for prejudice, Santana relies on the jury notes

made before their verdict. Pet. Cert. 8–9. On the first

day of deliberation, the jury had eight votes favoring a

not guilty verdict. Resp’t App’x. 4b, 24e. Santana

contends that this changed to a unanimous guilty

verdict on the second day, after Kristine’s testimony

was read back to them. Pet. Cert. 8–9. As the State

argued to the TCCA, Kristine was the final witness

before the jury began deliberating on the first day.

Resp’t App’x. 12b–13b, 13e, 18e. With her testimony

still fresh in their minds, the jury had a majority vote

for a not-guilty verdict. Id. 12b–13b, 4d, 13e. It does not

necessarily follow that the jury moved to a guilty

verdict simply by hearing this testimony again the

following day. Again, the record shows that Santana’s

perception here is not nearly as persuasive as he

contends. Thus, the TCCA’s rejection of his prejudice

argument could not be an unreasonable application of

Strickland. 466 U.S. at 693 (a defendant does not meet

his heavy burden by simply showing trial counsel’s

22

“errors had some conceivable effect on the outcome of

the proceeding.”).

Finally, Santana’s invitation to resolve this issue in

his favor and against the TCCA’s determination would

require making factual determinations not entirely

clear on this record. The lower court’s determinations

came after receiving trial counsels’ affidavits but not

their live testimony. Resp’t App’x. 23a–26a. Thus, the

TCCA saw fit to find Doezema more credible. For relief,

Santana must overcome deference to that implicit

factual finding. But again, this Court tends to “not

grant a certiorari to review evidence and discuss

specific facts.” Johnson, 268 U.S. at 227; Sup. Ct. R. 10

(certiorari is “rarely granted” when the petition asserts

“erroneous factual findings”). This general limitation

finds application here because the TCCA’s implicit

credibility and factual determinations were necessarily

premised upon a detailed analysis of the record. It

conducted this analysis pursuant to its parochial

manner of resolving these claims in state

postconviction review. For these reasons, prudence

calls for the Court to deny certiorari.

CONCLUSION

Based on the foregoing, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

23

JOSH RENO

Deputy Attorney General for

Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

s/ Lori Brodbeck____________

LORI BRODBECK*

Assistant Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1400

Lori.Brodbeck@oag.texas.gov

*Counsel for Respondent

24

No. 22-1139

IN THE

Supreme Court of the United States

__________________________

VICTOR SANTANA,

v.

Petitioner,

STATE OF TEXAS,

Respondent.

_________________________

On Petition for Writ of Certiorari to the

Texas Court of Criminal Appeals

___________________________

RESPONDENT’S APPENDICES

___________________________

KEN PAXTON

Attorney General

of Texas

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

BRENT WEBSTER

First Assistant

Attorney General

LORI BRODBECK*

Assistant Attorney General

* Counsel of Record

JOSH RENO

Deputy Attorney General

for Criminal Justice

P.O. BOX 12548

Austin, Texas 78711-2548

(512) 936-1400

Lori.Brodbeck@oag.texas.gov

Attorneys for Respondent

Respondent’s Appendix A

(Petitioner’s State Habeas Application &

State Habeas Hearing)

Resp’t App’x. 1a

Resp’t App’x. 2a

Case No. 1312173

(The district clerk of the county of conviction

will fill in this blank.)

IN THE COURT OF

CRIMINAL APPEALS OF TEXAS

APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY

CONVICTION UNDER CODE OF CRIMINAL

PROCEDURE ARTICLE 11.07

NAME: Victor Santana

DATE OF BIRTH: _12/3/63____

_______

PLACE OF CONFINEMENT: _Polunsky Unit______

WARDEN: _Daniel Dickerson__

TDCJ-CID NUMBER: ___01909615

SID NUMBER: _ 03967881

(1)

_______

_________

___________

This application concerns (check all that apply):

√

a conviction

parole

√

a sentence

mandatory supervision

time credit

out-of-time appeal

or petition for

discretionary review

Resp’t App’x. 3a

(2)

What are the court number and county of the

district court in which you were convicted?

_174th District Court, Harris County, Texas _

(3)

What was the case number in the trial court? (Put

only one case number here, even if it includes

multiple counts. You must make a separate

application on a separate form for other case

numbers.)?

_1312173

(4)

_____________________ __

What was the name of the trial judge?

_Ruben Guerrero _______________________

(5)

Were you represented by counsel? If yes, provide

the attorney’s name:

_George Powell and Sarah Doezema ________

(6)

What was the date that the judgment was entered?

_1/30/2014_________________________________

(7)

For what offense were you convicted and what was

the sentence?

Aggravated Assault of a Family Member, 40 years

TDCJ

____________________

(8)

If you were sentenced on more than one count of an

indictment in the same court at the same time, what

Resp’t App’x. 4a

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

√ not guilty

guilty-plea bargain

nolo contendere/no

contest

If you entered different pleas to counts in a multicount indictment, please explain:

___________________________________________

___________________________________________

(10)

What kind of trial did you have?

no jury

(11)

jury for guilt and punishment

√ jury for guilt, judge for

Punishment

Did you testify at trial? If yes, at what phase of the

trial did you testify?

_No

_________________________

(12)

(12) Has your sentence discharged?

yes √ no

(13)

Did you appeal from the judgment of conviction?

Resp’t App’x. 5a

√ yes

no

If you did appeal, answer the following questions:

(A) What court of appeals did you appeal to?

_Fourteenth Court of Appeals

_______

(B) What was the case number?

NO. 14-14-00130-CR

_____________

(C) Were you represented by counsel on appeal? If

yes, provide the attorney’s name:

Yes, Mark Kratovil of the Harris County

Public Defender's Office

___ _______

(D) What was the decision and the date of the

decision? Judgement reformed to

remove

"family member" finding, and judgement

affirmed.

_

____

_

(14)

Did you file a petition for discretionary review in

the Court of Criminal Appeals?

yes

√ no

If you did file a petition for discretionary review,

answer the following questions:

(15)

(A) What was the case number? _

_

(B) What was the decision and the date of the

decision?

_

Have you previously filed an application for a writ

of habeas corpus under Article 11.07 of the Texas

Resp’t App’x. 6a

Code of Criminal Procedure challenging the

conviction in this case number?

yes

√ 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 briefly explain why the current grounds

were not presented and could not have been

presented in your previous application.

____

___ _________________________________

_________________________________________ __

(16)

Do you currently have any petition or appeal

pending in any other state or federal court?

 yes

√ no

If you answered yes, please provide the name of the

court and the case number:

___________________________________________

(17)

If you are presenting a time credit claim, other than

Resp’t App’x. 7a

for pre-sentence jail time credit, have you

exhausted your administrative remedies by

presenting the time credit claim to the time credit

resolution system of the Texas Department of

Criminal Justice? (This requirement applies to any

final felony conviction, including state jail felonies.)

yes

√ no

If you answered yes, answer the following

questions:

What date did you present the claim to the time

credit resolution system? _____________________

(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 presented your time credit claim to the time

credit resolution system of the Texas Department

of Criminal Justice:

____

___ _________________________________

_________________________________________ __

(18)

Beginning on page 6, state concisely every legal

ground for why you think that you are being

illegally confined or restrained and then briefly

summarize the facts supporting each ground. You

must present each ground and a brief summary of

the facts on the application form. If your grounds

and a brief summary of the facts have not been

presented on the application form, the Court will

Resp’t App’x. 8a

not consider your grounds. A factual summary that

merely references an attached memorandum or

another ground for relief will not constitute a

sufficient summary of the facts.

If you have more than four grounds, use pages 14

and 15 of the application 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 application form a

memorandum of law if you want to present legal

authorities or provide greater factual detail, but the

Court will not consider grounds for relief set out in

a memorandum of law that were not raised on the

application form. The memorandum of law must

comply with Texas Rule of Appellate Procedure 73

and must not exceed 15,000 words if computergenerated 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 of law.

If the application form does not include all of the

grounds for relief, additional grounds brought at a

later date may be procedurally barred.

GROUND ONE:

Trial counsel was ineffective for opening the door to otherwise

inadmissible prior bad act evidence.

Resp’t App’x. 9a

FACTS SUPPORTING GROUND ONE:

During the cross examination of Ms. Gonzalez,

although the defense counsel had already established that Ms.

Gonzalez did not like Mr. Santana, defense counsel went a step

further by suggesting she did not like Mr. Santana because he

had been left a van by her grandfather. 3 RR at 66-67. The trial

court found that in doing so, trial counsel had opened the door

a plethora of prior bad acts. Id. at 72.

The record makes clear this mistake was not strategic.

Attorney Doezma attempted to "withdraw the question." Id. at

67. Attorney Powell argued the door had not been opened. Id.

at 67-72. Mr. Powell explained pleaded "[w]e're not ready to

open that door, Judge." Id. at 69. But the door was open and

the results were disastrous for the defense. The jury was then

permitted to hear testimony about the following previous bad

acts: Mr. Santana "was a controlling abusive person"; he was

physically violent; he punched Ms. Gonzalez in the ribs for

talking to co-workers about her life at home (which he

discovered by spying her); he used an "old-school paddle" to

strike the family all over their body; the abuse occurred for

very minor infractions; he would punch the family members

for minor infractions; if the family members lied they had to

eat a jalapeno (and if they spit up they had to eat the spit up);

Resp’t App’x. 10a

he would use paddles to paddle their bare feet; if Ms. Gonzalez

went to the police Mr. Santana was going to "hurt" her aunts;

when her sister moved out he refused to give return her

personal belongings. 3 RR at 76-85.

It is clear the prosecutor did not intend to introduce this

evidence prior to the door being opened. Prior to Ms.

Gonzalez's testimony, the trial prosecutor asked for a break to

"admonish [Ms. Gonzalez] once again that we are only to talk

about the assault that took place on that day." Id. at 40. The

prosecutor suggested that if a jury heard about the other bad

acts a new trial would be necessary. Id.

The jury was initially hung with eight votes in favor of

finding Mr. Santana not guilty. After having this otherwise

inadmissible prior bad act evidence read back to them the jury

quickly came back with a verdict of guilty.

GROUND TWO:

Trial counsel was ineffective for failing to object to

inadmissible prior bad act evidence.

FACTS SUPPORTING GROUND TWO:

After trial began, the prosecution filed its amended

Rule 404(b) notice which included the following allegation:

Resp’t App’x. 11a

"On or about October 1, 2011 in Harris County, Texas the

defendant told Kristene Gonzalez to call the District Attorney's

office to drop charges. CR at 451. This evidence was

introduced against Mr. Santana during the prosecution's direct

examination of Ms. Gonzalez.

Specifically, the prosecution elicited testimony that, a

few weeks after Mr. Santana's arrest, the complainant called

the trial prosecutor and told her that she and her boyfriend

Oscar been in an argument and that her boyfriend had "struck

[her] in the face and the head 'cause of an argument." Id. at 6163. As a result, the complainant told the prosecutor she wanted

to "drop it and let it go." Id. In response to the prosecutor's

questions Ms. Gonzalez explained that she was "sitting in the

room with Mr. Santana at the time" and that it was his idea to

call. Mr. Santana created the story and told her to call. Id. at

64.

At this point in the trial this inconsistent statement

given by the complainant had not been discussed by either

party, and defense counsel had done nothing to open the door

to this prior bad act evidence.

Once again, we have proof that the jury considered this

inadmissible prior bad act testimony to Mr. Santana's

Resp’t App’x. 12a

detriment. In a note sent out during deliberations the jury

specifically requested to hear this testimony. CR at 465;

Appendix A The Court then permitted the testimony to be read

back to the jury in its entirety. 6 RR at 12-16; Appendix B. A

short time later, the jury returned its guilty verdict. CR at 461.

GROUND THREE:

Trial counsel was ineffective for failing to request a limiting

instruction upon the admission of prior bad act evidence and

actually objecting to the limiting instruction in the jury charge.

FACTS SUPPORTING GROUND THREE:

After allowing the prosecution to enter objectionable

prior bad act evidence, and then opening the door to a wealth

of harmful prior bad act evidence, defense counsel

compounded the error by not requesting a limiting instruction.

Indeed, not only did defense counsel not request a limiting

instruction, counsel went so far as to object to the limiting

instruction the trial court included in the jury charge. 3 RR at

95. Defense counsels seemed to believe there was no

"extraneous offenses" evidence presented at trial. Id. at 95. The

prosecution recognized they had "presented extraneous bad

acts" but suggested the charge should be removed as well. The

Court seemed surprised at the request but removed the limiting

instruction. Id. at 95-96. The final charge did not include an

Resp’t App’x. 13a

extraneous bad act limiting instruction, although the Harris

County Jury Charge Bank contains the exact charge required

in this case. See Appendix D. The result is that the jury was

free to consider the prior bad act evidence without regard to a

burden of proof and for any purpose whatsoever.

GROUND FOUR:

Trial counsel was ineffective for not objecting to the improper

jury readback related to the prior bad act evidence.

FACTS SUPPORTING GROUND FOUR:

After initially telling the court that they were

deadlocked in favor of a not guilty verdict, the jurors sent out

a note asking for certain testimony. See Appendix A The

request included the following:

We would like any testimony that spoke to the abuse

of other family members.

...

We would like to hear the testimony of Christina when

she testifying about her call to DA with Victor present

and said "Oscar" did it. We would also like to include

her testimony about the second call to DA to say that

no it was really victor.

Resp’t App’x. 14a

A readback was improper because there was absolutely

no evidence that the jury was in disagreement about this

testimony. Tex. Code Crim. Pro. Ann. art. 36.28. Indeed, the

notes suggest that the jury was actually aware of the testimony

(noting the specific details of what they wanted to hear) and

simply wanted to hear it once again. Had counsel simply

objected to the read back the damaging testimony would not

have been read back to the jury.

GROUND FIVE:

Trial counsel was ineffective for failing to request a limiting

instruction upon the admission of prior bad act evidence and

actually objecting to the limiting instruction in the jury charge.

FACTS SUPPORTING GROUND FIVE:

In this case the State alleged the assault was committed

with a deadly weapon. CR at 22. Section l .07(a)(l 7)(B) of the

Texas Penal Code defines a "deadly weapon" to include:

"anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury." After the

defense team attempted to make an opening statement in the

form of a closing argument, and then hastily decided to rest

their case, the defense team requested "a little bit of time to go

over the charge." Id. at 94. However, trial counsel failed to

request an instruction on seriously bodily injury. See CR at

Resp’t App’x. 15a

455-461. The instruction was required in the charge. The

charge correctly noted the definition of "deadly weapon," as

relevant here: "anything that in the manner of its use or

intended use is capable of causing death or serious bodily

injury." CR at 455. However, the charge specifically failed to

provide the jury with the definition of serious of bodily injury:

"' Serious bodily injury' means bodily injury that creates a

substantial risk of death or that causes death, serious

permanent disfigurement, or protracted loss or impairment of

the function of any bodily member or organ." Tex. Pen. Code

Ann. § 1.07 (a)(46). As this is a defined term, it was necessary

for the trial court to include the term in the instruction.

Trial counsel performed deficiently by not requesting

that the definition of serious bodily injury be included in the

charge. The state had alleged aggravated assault by use of a

deadly weapon because there was no serious bodily injury in

this case. See CR at 22. Indeed, there is no testimony that could

a prove a permanent disfigurement, substantial risk of death,

or impairment of the function of the body. The only evidence

that the stick was a deadly weapon was Officer Hope's

affirmance that "this stick if struck, if used to strike someone

in the head [could] cause serious bodily injury or death?" 3 RR

at 36. The most Ms. Gonzalez testified about, concerning the

Resp’t App’x. 16a

stick, was that Mr. Santana struck her "twice on the head" and

that "he used all the force he had, his natural force." Id. at 53.

Trial counsel should have requested the instruction because it

is clearly a part of the law applicable to the case and it is likely

that had the jury known the definition of serious bodily injury

the jury would not have found that Mr. Santana used the stick

in such a way as to cause death or serious bodily injury.

GROUND SIX:

Trial counsel was ineffective for failing to request a limiting

instruction upon the admission of prior bad act evidence and

actually objecting to the limiting instruction in the jury charge.

FACTS SUPPORTING GROUND SIX:

The prosecution's opening statement, like the majority

of its case, relied upon hearsay statements from the

complainant and the prosecutor's own personal opinion that

she would tell the truth, and defense counsel failed to make the

proper objections.

In her opening remarks, the trial prosecutor explained

that Manager Henry Anderson "continued to press Kristine

Gonzalez. And he's going to tell you that eventually she said,

'My stepfather did it."' 3 RR at 9. This statement was hearsay,

and because the defense did not even give an opening it was

not offered pursuant to Rule 801 (e)(l)(B) as a prior consistent

Resp’t App’x. 17a

statement. This argument introduced inadmissible hearsay

which bolstered the complainant's upcoming testimony and

should have been objected to.

The prosecutor did the exact same thing in anticipation

of Officer Hope's testimony: "Officer Hope went to the

hospital, the hospital that Kristine Gonzalez had to go to

because of her injuries and there she finally told Officer Hope

who had done it. It was her stepfather." Id. Once again this was

harmful hearsay which should have been objected to. Id.

The prosecutor then improperly provided her own

bolstering opinion about Ms. Gonzalez's upcoming testimony:

"But what you're going to hear from her on the stand today is

the truth about what happened on July 5th, the truth about this

man assaulting her." Id. at 10. As the credibility of Ms.

Gonzalez had not been attacked prior to opening this testimony

was inadmissible, and indeed was inadmissible simply

because it was the opinion of the trial prosecutor.

Henry Anderson was also allowed to testify about

harmful hearsay statements and bolster Ms. Gonzalez's future

testimony without objection. He testified that "[s]he said it

happened at home. Her stepfather hit her upside the head with

Resp’t App’x. 18a

a stick." Id. at 18. This was hearsay and because there was no

prior impeachment related to Ms. Gonzalez it was also not a

prior consistent statement. Mr. Anderson was also allowed to

testify about hearsay statements which established prior bad

acts: "The first story she told me, that she was already -always having a problem and she had other bruises that had

occurred and that she was having problems at home." Id. He

recounted once again that "she just told me that she was just

hit on the head with a stick." Id. at 18. Mr. Anderson was

finally permitted to give his opinion that Ms. Gonzalez story

about being hit by the stick was truthful.

Officer Hope was allowed to testify to statements

which were hearsay and inadmissible prior bad acts. He

testified that Ms. Gonzalez was fearful and afraid that the

defendant would harm her mother and sister if she called the

authorities. He also testified about hearsay statements related

to the allegations against Mr. Santana.

Resp’t App’x. 19a

GROUND SEVEN:

The cumulative effect of trial counsels' multiple deficiencies

is that Mr. Santana's conviction should be reversed because of

ineffective assistance of counsel.

FACTS SUPPORTING GROUND SEVEN:

Even if no single error in isolation rendered Mr.

Santana's trial unfair, when considered in their totality, it is

obvious that Mr. Santana can establish prejudice. From

opening statement and throughout the trial defense counsel

permitted the prosecution to admit inadmissible hearsay

evidence and prior bad act evidence which was detrimental

Mr. Santana's case. Defense counsel opened the door to

multiple prior bad acts and failed to request a limiting

instruction so that the jury was permitted to consider those

prior bad acts, some related to people other the complainant,

as propensity evidence. Trial counsel went so far as to have the

limiting instruction removed from the jury charge prior to

closing argument.

Resp’t App’x. 20a

WHEREFORE, I PRAY THAT THE COURT GRANT

THE RELIEF TO WHICH APPLICANT MAY BE

ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application form must be verified in one of the

following ways by either an applicant or a petitioner or it

may be dismissed for noncompliance.

Applicants

In order to verify this application form, an applicant

must sign one of the following:

(1)

(2)

(3)

the "Unsworn Declaration" for inmates (page 16) if

applicant is an inmate; or

the "Unsworn Declaration" for non-inmates (page 17)

if applicant is not an inmate; or

the "Oath Before a Notary Public" before a notary

public (page 18).

Petitioners

If a petitioner, including an attorney, presents an

application form on behalf of an applicant, the petitioner may

verify the application form for the applicant. In order to verify

this application form, a petitioner must sign one of the

following:

(1)

(2)

(3)

the "Unsworn Declaration" for inmates (page 16) if

petitioner is an inmate; or

the "Unsworn Declaration" for non-inmates (page 17)

if petitioner is not an inmate; or

the "Oath Before a Notary Public" before a notary

Resp’t App’x. 21a

public (page 18).

In addition, all petitioners, including attorneys, presenting an

application on behalf of an applicant must complete

"Petitioner's Information" and sign "Petitioner's Statement"

(page 19).

UNSWORN DECLARATION (INMATE)

My name is (First) __________ (Middle) __________

(Last) _________, my date of birth is ____________ and my

inmate identifying number, if any, is _____________.

I am presently incarcerated in (Corrections unit name)

___________ in (City) _____________, (County) ________,

(State) __________ , (Zip Code) ________. I declare under

penalty of perjury that the contents of this application for a writ

of habeas corpus and the facts stated in the application form

are true and correct.

Executed on the _________ day of (Month) __________

(Year) __________.

Signature of Declarant: _________________________.

UNSWORN DECLARATION (NON-INMATE)

My name is (First) Jonathan (Middle) David (Last) Landers,

my date of birth is 12/16/1982, and my address is (Street) 917

Franklin, Ste. 300, (City) Houston, (State) TX, (Zip Code)

77002, and (Country) USA. I declare under penalty of perjury

that the contents of this application for a writ of habeas corpus

and the facts stated in the application form are true and correct.

Executed in Harris County, State of TX, on the 2nd day of

(Month) December (Year) 2020.

Resp’t App’x. 22a

Signature of Declarant: _________________________.

[Signed Oath Omitted]

PETITIONER’S INFORMATION

(Contact information for a petitioner presenting this

application on behalf of the applicant)

Petitioner’s printed name: __Jonathan D. Landers______

State bar number, if applicable: _24070101

_

Address: 917 Franklin St, Ste. 300_________________

Houston, TX 77002 _____________

Telephone: __713-685-5000________________

Fax: ______713-513-5505____ _____________

Email Address: __jlanders.law@gmail.com________

PETITIONER’S STATEMENT

"I am signing and presenting this application form on behalf

of the applicant for the purpose of obtaining relief from the

applicant's felony conviction. I have consulted with the

applicant concerning this application and the applicant has

given consent to the filing of this application form."

/s/ Jonathan David Landers ____

Signature of Petitioner

Signed on 12/2/2020

Resp’t App’x. 23a

[Line numbers, stamps and received date removed]

REPORTER’S RECORD

VOLUME 1 OF 2 VOLUMES

TRIAL COURT CAUSE NO. 1312173-A

COURT OF CRIMINAL APPEALS NO. WR-92,804-01

EX PARTE

VICTOR SANTANA

) IN THE DISTRICT COURT

)

)

) HARRIS COUNTY, TEXAS

)

)

) 174TH JUDICIAL DISTRICT

******************************

WRIT OF HABEAS CORPUS HEARING

******************************

On the 7th day of September, 2021, the following

proceedings came on to be heard in the above-titled

and numbered cause before the Honorable Hazel B.

Jones, Judge presiding, held in Houston, Harris

County, Texas;

Proceedings reported by computer-aided

transcription/stenoraph shorthand.

Resp’t App’x. 24a

INDEX

VOLUME 1

(WRIT OF HABEAS CORPUS HEARING)

SEPTEMBER 7, 2021

Page Vol.

Writ of Habeas Corpus .................................. 3

1

Reporter’s Certificate ..................................... 7

1

ALPHABETICAL WITNESS INDEX

(No witnesses this volume)

EXHIBIT INDEX

NUMBER DESCRIPTION OFFERED ADMITTED VOL.

DX-1

Disk/trial record

5

5

1

Resp’t App’x. 25a

[Line numbers, stamps and received date removed]

REPORTER’S RECORD

VOLUME 2 OF 2 VOLUMES

TRIAL COURT CAUSE NO. 1312173-A

COURT OF CRIMINAL APPEALS NO. WR-92,804-01

EX PARTE

VICTOR SANTANA

) IN THE DISTRICT COURT

)

)

) HARRIS COUNTY, TEXAS

)

)

) 174TH JUDICIAL DISTRICT

******************************

EXHIBIT VOLUME

******************************

The following proceedings came on to be heard in

the above-titled and numbered cause before the

Honorable Hazel B. Jones, Judge presiding, held in

Houston, Harris County, Texas;

Proceedings reported by computer-aided

transcription/stenoraph shorthand.

Resp’t App’x. 26a

NUMBER DESCRIPTION OFFERED ADMITTED VOL.

DX-1

Disk/trial record

5

5

1

Respondent’s Appendix B

(State’s Objections to the

State Habeas Court’s Findings)

Resp’t App’x. 1b

NO. WR-92,804-01

IN THE

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

CAUSE NO. 1312173-A

IN THE

174TH DISTRICT COURT

HARRIS COUNTY, TEXAS

EX PARTE VICTOR SANTANA

STATE’S OBJECTIONS TO THE HABEAS

COURT’S FINDINGS OF FACT, CONCLUSIONS

OF LAW, AND RECOMMENDATION OF A NEW

TRIAL

THE STATE OF TEXAS objects to the habeas

court’s November 23, 20211 1 findings of fact,

conclusions of law, and recommendation that the

applicant receive a new trial on the ground of

The State received notice of the habeas court’s findings on

November 29, 2021. These objections are timely. See TEX. R. APP.

P. 73.4(b)(2).

1

Resp’t App’x. 2b

ineffective assistance of counsel. The State requests

that the Court of Criminal Appeals consider these

Objections and the State’s Proposed Findings of Fact

and Conclusions of Law filed on June 7, 2021. The

State requests that the Court of Criminal Appeals

exercise its authority to make alternative findings of

fact and conclusions of law and to deny habeas corpus

relief.

I.

STANDARD OF REVIEW

The State objects to the habeas court’s findings

of fact, conclusions of law, and recommendation of a

new trial because they are unsupported by the habeas

record and are contrary to the law. The Court of

Criminal Appeals is not bound by the habeas court’s

findings of fact and conclusions of law. See Ex parte

White, 160 S.W.3d 46, 49 (Tex. Crim. App. 2004). If the

record does not support the habeas court’s findings,

then the Court of Criminal Appeals may exercise its

authority to make contrary findings. Ex parte Bagley,

509 S.W.2d 332, 335 (Tex. Crim. App. 1974); Ex parte

Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1972).

Because the record and the law do not support the

habeas court’s findings of fact and conclusions of law,

the State urges the Court of Criminal Appeals to make

contrary findings and deny habeas relief. Additionally,

the habeas court did not enter any findings regarding

the credibility of any witnesses. Accordingly, the Court

of Criminal Appeals need not give deference to the

habeas court’s findings because it did not base them on

Resp’t App’x. 3b

credibility. See Diamond v. State, 613 S.W.3d 536, 544

(Tex. Crim. App. 2020) (findings based on credibility

and demeanor receive special deference).

II.

OBJECTIONS

The habeas court’s findings of fact and

conclusions of law that the applicant has established

ineffective assistance of counsel are not “firmly

founded” in the record and the record does not

“affirmatively

demonstrate

the

alleged

ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). The habeas court’s findings of

fact and conclusions of law regarding laches are not

supported by the record and are contrary to the law.

See Ex parte Carrio, 992 S.W.2d 486, 487 (Tex. Crim.

App. 1999) (the doctrine of laches can bar habeas relief

in the circumstance that the State is harmed as a

result of an unreasonable delay in pursuing a habeas

claim).

A.

FINDING NOS. 2, 6, 12, 16, 20, 23, 27, 30,

AND 33 AND CONCLUSION NOS. 13 AND

33 THAT TRIAL COUNSEL’S ACTIONS

WERE NOT THE RESULT OF STRATEGY

ARE NOT SUPPORTED BY THE RECORD.

The habeas court cites to lead trial counsel

George Powell’s affidavit to support Finding Nos. 2, 6,

12, 16, 20, 23, 27, 30, and 33 and Conclusion Nos. 13

and 33 that his actions were not the result of a valid

Resp’t App’x. 4b

trial strategy. In those findings and conclusions, the

habeas court found that Powell’s motion practice, his

questioning of the complainant, his failures to object,

his failure to request a limiting instruction in the jury

charge, and his failure to request “serious bodily

injury” in the jury charge were not the result of a valid

trial strategy. However, Powell has no recollection of

his actions in the applicant’s case. Powell Affidavit.

Powell’s affidavit provides no insight whatsoever into

his actions at trial. Id. He recalls nothing about the

applicant’s case. Id. He cannot refresh his memory

with his defense file because it was destroyed in

Hurricane Harvey. Id. The best Mr. Powell can provide

is hindsight after reading the trial record 7 years later.

Id. And yet the habeas court decided that Powell and

Doezema’s actions at trial were not the result of a valid

defense strategy. Court’s Substantial Adoption of

Applicant’s Proposed Findings of Fact and Conclusions

of Law. Ineffective assistance of counsel claims are not

built on hindsight and retrospective speculation. Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

Under Strickland v. Washington, 466 U.S. 668, 686

(1984), a defendant must prove, by a preponderance of

the evidence, that there is, in fact, no plausible

professional reason for a specific act or omission. Id. at

836.

In Finding No. 2, the habeas court found that

Powell filed a discovery motion but never sought a

ruling on it and that this goes against Powell’s general

practice and was not valid defense strategy (C.R. at

Resp’t App’x. 5b

119-129). However, the habeas court ignores that

Powell was the applicant’s third lawyer and that

Harris County has an open-file system in place where

defense counsel could review the State’s file with the

exception of work-product (C.R. at 56-57). State’s Writ

Exhibit A, Docket Sheets. There is no evidence in the

habeas record that Powell was surprised by any of the

State’s evidence at trial, which the habeas court seems

to imply with its related Finding No. 3. The habeas

court is not entitled to make findings that are not

supported by the record.

In Finding No. 6 and Conclusion No. 13, the

habeas court concluded that Powell’s questioning of the

complainant that opened the door to the introduction

of bad act evidence was not a part of his defense

strategy. To support this conclusion, the habeas court

cites to Powell’s affidavit that he “would not ask a

question expecting it to open the door to prior bad acts.”

Powell Affidavit, p.2. Clearly, a defense attorney would

never intentionally ask a question they thought would

open the door to unfavorable evidence against their

client. The habeas court’s reliance on this universal

notion to prove that it was not strategic is unsound.

The habeas court ignores that Powell cannot

recall why he pursued this line of questioning with the

complainant regarding why she did not like the

applicant. Id. However, the trial record reflects that

Powell was demonstrating that the complainant was

biased against the applicant and was fabricating her

Resp’t App’x. 6b

testimony because she did not like him. In closing,

Powell argued: “[The applicant] is [the complainant’s]

mother's boyfriend. She's made it clear that she did not

like him. I can't be exactly sure why 'cause so many of

the stories have changed so many different times, but

I do know that she doesn't like him. And I think one

convenient way to get rid of somebody that you don't

like is to accuse them of a crime and hopefully they'll

go to jail and you won't have to worry about it 'cause

they won't be around.” (3 R.R. at 106). Powell’s line of

questioning was reasonable trial strategy even though

he inadvertently opened the door to extraneous

offenses. See, e.g., Jensen v. State, 66 S.W.3d 528, 53940, 543-44 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d) (trial counsel inquiring about the “rocky

relationship” between the defendant and his ex-wife

not unreasonable even though this line of questioning

opened the door to extraneous offenses).

Throughout trial, the applicant’s attorneys

aggressively attacked the complainant’s credibility.

Sarah Doezema, the second chair to Powell, argued: “I

myself have been a victim of assault. There's – there's

nothing worse. We're not here to say that's okay. We're

not here to condone it or say it's acceptable . . . The only

thing that is worse than that is somebody who comes

and makes a false allegation.” (3 R.R. at 89). Doezema

also emphasized: “If she was being abused by this

person, if this person was hitting her over the head

with objects or abusing her in any other way, leave!

Why didn't you leave? Why didn't you move out? Why

Resp’t App’x. 7b

didn't you tell on this guy? You're not -- you're not a

child. You're not a seven year old or a nine year old or

a ten year old. You are a grown woman. You're not even

18. You're 24. And she chose to stay in that home for a

few months after this happened. She stayed there.” (3

R.R. at 103).

The habeas court forgets that the applicant did

not testify and the defense did not intend to call or

present any witnesses in guilt-innocence (3 R.R. at 2123, 36, 73-74, 94, 99-100, 104-105). Doezema Affidavit,

p. 5. Because the applicant chose not to testify, the

defense brought out the applicant’s theory of the case

through cross examination of the State’s witnesses (3

R.R. at 21-23, 36, 73-74, 94, 99-100, 104-105). Even

though the defensive strategy was not ultimately

successful, trial counsel will not be found ineffective for

employing a reasonable trial strategy. White, 160

S.W.3d at 55 (just because another attorney would

have pursued another strategy does not make this

strategy unreasonable); See, e.g., Jensen, 66 S.W.3d at

539-40, 543-44.

Moreover, the applicant cannot show that the

testimony related to the prior bad acts and extraneous

offenses harmed him. That is, at the conclusion of the

State’s case, the jury was heavily favoring a “not

guilty” verdict (C.R. at 462-63). State’s Writ Exhibit A.

The trial record reflects that the complainant was the

State’s final witness (3 R.R. at 42- 88). The trial record

also reflects that the last piece of testimony the jury

Resp’t App’x. 8b

heard was from the complainant on re-direct

examination concerning the applicant’s prior bad acts

and extraneous offenses (3 R.R. at 77-88). Despite all

of this, and after two hours of deliberations that day,

the jury was polling 8-4 in favor of a “not guilty” verdict

(C.R. at 462-63). State’s Writ Exhibit A. The applicant

cannot show, based on this trial record, that he was

harmed by the complainant’s testimony on re-direct

examination.

In Finding No. 12, the habeas court found that

it was not a part of defense strategy for Powell to fail

to object to the introduction of prior bad act evidence

elicited on direct examination of the complainant,

including that the applicant was in the room when the

complainant called the DA to recant and that the

applicant came up with the story that it was the

complainant’s boyfriend that caused her injuries.

However, the habeas court ignores that the

complainant’s telephone call and recantation to the DA

was beneficial testimony for the applicant. Again, the

defense sought to discredit the complainant but had no

intention of calling the applicant or any witnesses in

guilt-innocence (3 R.R. at 21- 23, 36, 73-74, 94, 99-100,

104-105). Doezema Affidavit, p. 5. Instead, the

applicant’s attorneys used the complainant’s changing

stories to support its theory that she was a liar and

that her word could not be trusted. Doezema argued:

“Now, [the complainant] submitted multiple stories to

the prosecutor, multiple stories to the officer about

what happened. The first story was that she fell. The

Resp’t App’x. 9b

second story was that [the applicant] assaulted her.

The third story was that it was a boyfriend. Now, this

boyfriend was identified as Oscar in the beginning. We

never heard anything else about this boyfriend. Don't

know if a boyfriend existed. She says that he didn't

exist, but is she protecting that boyfriend? We have no

idea. Then she comes back and says that I want you to

drop the case. This never happened ever. Nothing ever

happened. I don't want to pursue this case against [the

applicant]. And then she comes back again and says,

okay, I want you to pursue the case against [the

applicant]. We don't know the truth. We have -- we

have no idea what happened. She's said so many

different stories, how do we know that what she's

telling us today is the truth?” (3 R.R. at 99-100). The

habeas court’s finding that this un- objected-to

testimony was harmful to the defense and was not

strategic is not supported by the record.

In Finding No. 16, the habeas court found that

defense counsel’s choice not to ask for a limiting

instruction in the jury charge was not a part of defense

strategy. However, Powell has no recollection about

why he did not ask for one. Powell Affidavit, p. 2. The

habeas court ignores that there is a well-established

reason why a trial court is not required sua sponte to

give a jury instruction during the guilt phase on the

State’s burden of proof for extraneous offenses. See

TEX. R. EVID. 105(a). That is because these are issues

that frequently depend upon trial strategy and tactic,

i.e., a party might forego a limiting instruction as part

Resp’t App’x. 10b

of its deliberate trial strategy to minimize the jury’s

recollection of the unfavorable evidence. See Delgado v.

State, 235 S.W.3d 244, 249-50 (Tex. Crim. App. 2007)

(the trial court does not have a sua sponte duty to

instruct the jury on all potential defensive issues,

lesser-included offenses, or the proper use of certain

evidence because these are strategic decisions

generally left to the lawyer and client).

A plausible reason here for Powell and Doezema

to not ask for a limiting instruction would be that they

adopted an “all or nothing” approach to the

complainant’s credibility. See, e.g., de la Luz Torres v.

State, 570 S.W.3d 874 (Tex. App.—Houston [1st Dist.]

2018, pet. ref’d) (trial court considered defendant’s “all

or nothing” defense when deciding that the defendant

was not egregiously harmed by the absence of a

unanimity instruction in continuous sexual abuse

case); See, e.g., Harper v. State, 540 S.W.3d 223 (Tex.

App— Houston [1st Dist.] 2018, pet. ref’d) (defendant’s

defense to multi-party capital murder was “all or

nothing” in that he did not kill anyone—which weighed

against egregious harm where the charge permitted

the jury to convict the defendant without agreeing on

which complainants he murdered). The applicant’s

attorneys were positioning the complainant as a liar

for all purposes and that the jury could not trust

anything that she said (3 R.R. at 89-91, 98-107).

Doezema argued: “If she was being abused by this

person, if this person was hitting her over the head

with objects or abusing her in any other way, leave!

Resp’t App’x. 11b

Why didn't you leave? Why didn't you move out?” (3

R.R. at 103). Powell further argued: “The store

manager, Mr. Anderson, and Officer Hope, while very

presentable witnesses, could not give you anything

beyond what they'd been told by the witness you last

saw up there and that's [the complainant]. They had

no firsthand account of what took place that day. Only

she does. So, what they know actually depends on what

she tells them. So, let's look closely at her and her

credibility 'cause that's the only evidence we really

have and the only evidence upon which you can base

your decision.” (3 R.R. at 104-05). The record does not

support the habeas court’s finding that there was no

strategic reason to forego requesting a limiting

instruction.

In Finding No. 20 and Conclusion No. 33, the

habeas court concluded that it was not based on any

valid defense strategy for defense counsel to fail to

object to the jury read-back. However, again, Powell

has no recollection about why he did not object. Powell

Affidavit, p. 3. Both Powell and Doezema understood

the law as it relates to TEX. CRIM. PROC. CODE art.

36.28 and they understood when jury read-back is

permitted. Id.; Doezema Affidavit, p. 6. Powell objected

to the jury hearing any read-back testimony that was

overly broad to the jury’s request, but did not make any

objections based on the disagreement requirement of

art. 36.28 (6 R.R. at 5). While a simple request for

testimony does not, by itself, reflect disagreement,

implicit or express, and is not a proper request under

Resp’t App’x. 12b

Art. 36.28, Moore v. State, 874 S.W.2d 671, 673 (Tex.

Crim. App. 1994) and Robison v. State, 888 S.W.2d 473,

481 (Tex. Crim. App. 1994), it is evaluated under an

abuse of discretion standard upon a proper objection by

the defense.

There is a reason why art. 36.28 is subject to a

proper objection by the defense because an objection (or

no objection) could be used strategically. See Robison,

888 S.W.2d at 481; See Delgado, 235 S.W.3d at 249-50.

Here, the notes sent by the jury do not specify that

there was a disagreement about certain testimony

(C.R. at 464-65). However, Powell and Doezema did not

object to the read-back on this basis, and it is evident

that some off-the-record discussion occurred about the

relevant sections of testimony requested by the jury (6

R.R. at 4). It logically follows that Powell and Doezema

did not object to the read-back for strategic reasons. A

plausible reason is that they reasonably believed the

read-back might help the jury to acquit their client.

There is support in the record for this plausibility

because at the close of evidence and during the first

two hours of jury deliberations, the jury was polling 84 in favor of a “not guilty” verdict (C.R. at 462-63).

State’s Writ Exhibit A. As discussed earlier, the jury

heavily favored this “not guilty” verdict the same day

they heard the complainant’s re-direct examination

where she testified to the applicant’s prior bad acts and

extraneous offenses (3 R.R. at 77-88). Clearly, the jury

was not immediately swayed by the complainant’s

testimony (C.R. at 462-63). Powell and Doezema could

Resp’t App’x. 13b

have reasonably believed that if the jury heard this

testimony again, the other 4 jurors would go along with

the 8 and acquit. See Duncan v. Louisiana, 391 U.S.

145, 150-154 (1968) (noting that trial by jury in

criminal cases is fundamental to the American scheme

of justice); See Williams v. Florida, 399 U.S. 78, 86-87

(1970) (noting that the long tradition of attaching great

importance to the concept of relying on a body of one's

peers to determine guilt or innocence was a safeguard

against arbitrary law enforcement). The jury’s

vacillation does not mean that Powell and Doezema

were ineffective. Accordingly, the habeas court’s

conclusion that not objecting to the read-back

testimony was not a valid defense strategy is not

supported by this habeas record.

In Finding No. 23, the habeas court found that

defense counsel’s failure to request the definition of

“serious bodily injury” in the jury charge was not a part

of the defense strategy. Powell does not recall why he

did not request it, but now retrospectively believes that

it should have been included. Powell Affidavit, pp. 2-3.

Based on the indictment, the State was required to

prove that the applicant committed aggravated assault

by intentionally and knowingly causing bodily injury

to the complainant by using a deadly weapon, namely,

a stick or a club (C.R. at 22, 455-60) (3 R.R. at 5). The

jury charge defined “deadly weapon” as anything

manifestly designed, made, or adapted for the purpose

of inflicting death or serious bodily injury; or anything

that in the manner of its use or intended use is capable

Resp’t App’x. 14b

of causing death or serious bodily injury (C.R. at 455).

The jury charge defined “bodily injury" as physical

pain, illness, or any impairment of physical condition

(C.R. at 455). The jury charge did not define “serious

bodily injury” (C.R. at 455-60). Officer Stephen Hope

was the only witness that testified that the stick/club

could cause serious bodily injury or death if it was used

to strike someone in the head (3 R.R. at 35-36). The

defense did not ask Officer Hope a single question

about whether the stick/club could cause serious bodily

injury or death (3 R.R. at 35-39). Neither the State nor

the defense argued a single word about whether the

stick/club could cause serious bodily injury or death (3

R.R. at 89-115).

The habeas court treats defense counsel’s failure

to ask for this definition in the jury charge as a crucial

missed opportunity; when in reality, the applicant’s

case never turned on whether the stick/club was a

deadly weapon. As discussed at length already, the

defensive theory centered on the complainant’s

credibility. The applicant cannot show that there is a

reasonable probability that the result of the proceeding

would have been different had trial counsel requested

the definition of serious bodily injury in the jury

charge. The habeas court’s findings regarding the jury

charge are not supported by the record.

In Finding No. 27, the habeas court found that

defense counsel’s failure to object to bolstering and

hearsay in the prosecution’s opening statement was

Resp’t App’x. 15b

not part of the defense strategy. Powell has no

recollection about why he did not object to any part of

the State’s opening statement. Powell Affidavit, p. 3. In

her opening, the prosecutor outlined the fact that the

complainant told her manager Henry Anderson three

different stories about her injuries (3 R.R. at 8-9). The

prosecutor also outlined the fact that the complainant

was reluctant to report her injuries to Officer Hope and

that she “finally” told him that the applicant caused

her injuries (3 R.R. at 9). Throughout trial, defense

counsel capitalized on the complainant’s multiple

stories to different people (3 R.R. at 21- 23, 36, 73-74,

99-100, 104-105). These statements were used by the

defense to undermine the complainant’s credibility. It

would make little sense for Powell and Doezema to

object to statements that were helpful to the

applicant’s theory of the case. The habeas court’s

findings regarding this section are inconsistent with

the trial record.

The habeas court also mischaracterizes the

following statement from the prosecutor as an

improper person opinion: “But what you're going to

hear from her on the stand today is the truth about

what happened on July 5th, the truth about this man

assaulting her.” (3 R.R. at 10). The habeas court’s

characterization in Finding No. 26(c) and Conclusion

No. 52 that this statement was an improper personal

opinion is an unreasonable stretch. The prosecutor’s

opening statement was within the proper bounds of

TEX. CRIM. PROC. CODE art. 36.01(a)(3). The

Resp’t App’x. 16b

prosecutor was stating the facts that she expected to

prove. While the defense could have lodged an

objection to the prosecutor’s opening statement, the

applicant cannot show that there is a reasonable

probability that the result of the proceeding would

have been different. Vaughn v. State, 931 S.W.2d 564,

566-67 (Tex. Crim. App. 1996) (the applicant must

show that the trial court would have committed error

in overruling the objection). Accordingly, the habeas

court’s finding and conclusion is not supported by the

applicable law here.

In Finding No. 30, the habeas court found that

defense counsel’s failure to object to inadmissible

hearsay testimony through Henry Anderson was not a

part of the defense’s strategy. Powell does not recall

why he did not object. Powell Affidavit, p. 3. However,

the habeas court’s findings are controverted by the

trial record. Anderson’s testimony was helpful to the

defense because it emphasized that the complainant

told him at least three different stories about how she

sustained her injuries (3 R.R. at 16, 18-19). The habeas

court mislabels this as “bolstering” by the prosecution.

It was not “bolstering”—the defense used this

testimony to argue that the complainant’s inconsistent

statements meant that her words were not trustworthy

(3 R.R. at 99-104). The habeas court’s finding is

unsupported by the record.

In Finding No. 33, the habeas court found that

defense counsel’s failure to object to inadmissible

Resp’t App’x. 17b

hearsay and prior bad act testimony through Officer

Hope could not be part of a reasonable defense

strategy. Doezema handled the cross-examination of

Officer Hope (3 R.R. at 36-39). Doezema stated that

Hope’s testimony was not contrary or adverse to the

defense strategy. Doezema Affidavit, pp. 8-9. The

applicant complains that Doezema did not specifically

object to testimony from Officer Hope describing the

complainant as fearful and worried that her mother

and sister would come up injured because of the

applicant (3 R.R. at 29). The trial record reflects that

Officer Hope testified in a manner that was nonresponsive to the prosecutor’s question when he

testified that the complainant was worried that her

mother and sister would come up injured because of

the applicant. Id. Although Doezema did not object, the

crux of this testimony was that the complainant was

reluctant to talk to Officer Hope about the cause of her

injuries. This testimony was not directly adverse to the

defense strategy because Doezema used this to argue

that the complainant’s reluctance meant that she was

lying: “[The complainant said] I don't want to pursue

this case against [the applicant]. And then she comes

back again and says, okay, I want you to pursue the

case against [the applicant].” (3 R.R. at 100). The

habeas court’s finding that this testimony was harmful

to the defense is not supported by the record because

Doezema used the complainant’s reluctance to argue

against her credibility.

The applicant also complains that Doezema did

Resp’t App’x. 18b

not object to testimony from Officer Hope where he

repeated to the jury what the complainant had told him

about the location of the stick/club used in her assault

(3 R.R. at 30). However, Officer Hope actually

recovered the stick/club from the applicant’s bedroom

and told the jury where he found it (3 R.R. at 34-35).

The complainant later told the jury that the applicant

placed the stick/club next to his bed after striking her

in the head with it twice (3 R.R. at 52-54). Even

without Officer Hope’s testimony from the complainant

about the location of the stick/club, the jury would have

still heard that the complainant’s description of the

location of the weapon matched the location where

Officer Hope recovered it. The applicant cannot show

that Doezema’s failure to object to this testimony was

harmful because this testimony would have come in

anyway, and it did in fact come in anyway. The habeas

court’s findings here are not supported by the record.

None of the habeas court’s findings and

conclusions regarding defense counsel’s strategic

thinking and defensive strategy are supported by the

record. Despite having no firm factual basis for such

findings and conclusions, the habeas court decided that

Powell and Doezema were ineffective. Contrary to

those findings, the habeas record is silent on those

issues. And when it is silent, it should find the

attorneys’ performance deficient only if the conduct

was so outrageous that no competent attorney would

have engaged in it. See Ex parte Scott, 541 S.W.3d 104,

117 (Tex. Crim. App. 2017) (citing Andrews v. State,

Resp’t App’x. 19b

159 S.W.3d 98, 101 (Tex. Crim. App. 2005)). It is the

applicant's responsibility to overcome the strong

presumption that trial counsel’s performance falls

within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 689. Accordingly,

the habeas court’s Conclusion Nos. 13-28, 32-36, 42-46,

51-58, and 61-65 are not supported by the habeas

record and are contrary to the law.

B.

CONCLUSION NOS. 1-4 REGARDING

LACHES ARE NOT SUPPORTED BY THE

RECORD AND ARE CONTRARY TO THE

LAW.

In Conclusion Nos. 1 and 2, the habeas court

concludes that the applicant’s delay was not

unreasonable and that the applicant’s lack of financial

resources to hire an attorney is a justifiable excuse.

The habeas court also incorporated the applicant’s

written laches response and sworn affidavit into its

Conclusions of Law. In the applicant’s laches response,

the applicant admits “[t]hese ineffectiveness claims are

heavily record based.” Applicant Santana’s Response

Concerning Latches [sic], p. 3. In fact, his claims are

entirely record-based. The applicant uses the fact that

his claims are record-based for justification that

Powell’s lack of recollection does not prejudice the

State in responding to the ineffective assistance of

counsel claim. Id. However, in the very next section of

his written response, the applicant cites Trevino v.

Thaler, 569 U.S. 413, 423-26 (2013) to argue that “[i]t

Resp’t App’x. 20b

would be improper to fault [the applicant] for not

raising his ineffective assistance of counsel claims on

direct review.” Id. at p. 5. On the one hand, he says his

claims are record- based so it does not matter what

trial counsel recalls. On the other hand, he says he

could not have litigated his claims on direct appeal

even though they are record-based. The applicant

cannot have it both ways. The habeas court’s

conclusion that the applicant’s delay was not

unreasonable is not supported by the record.

The applicant’s blind reliance on Trevino—

which is a factually and procedurally dissimilar case to

his—ignores the fact that the applicant’s trial record

was short with only 3 witnesses, the facts were simple

and not complex, and his claims are entirely recordbased. Trevino, 569 U.S. at 423-24 (recognizing that

the nature of an ineffective-assistance claim means

that the trial record is likely to be insufficient to

support the claim and a motion for a new trial to

develop the record is usually inadequate because of

Texas rules regarding time limits and the availability

of trial transcripts). Under the narrow and limited

circumstances of the applicant’s claims on habeas,

there is no excuse why he could not have timely

litigated his claims in a motion for new trial. A motion

for new trial would have been the precise vehicle to use

here. See, e.g., State v. Morales, 253 S.W.3d 686, 689–

691 (Tex. Crim. App. 2008), Robertson v. State, 187

S.W.3d 475, 480–481 (Tex. Crim. App. 2006), Burch v.

State, 541 S.W.3d 816, 818-19 (Tex. Crim. App. 2017),

Resp’t App’x. 21b

State v. Gutierrez, 541 S.W.3d 91, 96 (Tex. Crim. App.

2017), Hudgins v. State, No. PD–0163–17, 2018 WL

525716, at *1 (Tex. Crim. App. Jan. 24, 2018) (not

designated for publication).

And in the event that the appellate court found

that the record on direct appeal was inadequate to

evaluate the ineffective assistance of counsel

allegations, the applicant would not be barred from relitigation of those claims on habeas corpus review so

long as the applicant was able to offer additional

evidence in support of those allegations. See Ex parte

Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (if

the appellate court rejects a claim of ineffective

assistance of counsel because the record on direct

appeal does not contain sufficient information to

adequately address and resolve a particular allegation

of counsel’s deficient performance, the defendant may

re-urge consideration of that specific act or omission in

a later habeas corpus proceeding if he provides

additional evidence to prove his claim); Ex parte

Nailor, 149 S.W.3d 125, 127-32 (Tex. Crim. App. 2004)

(the exception in Torres did not apply because the

record on direct appeal was adequate to evaluate the

first four ineffective assistance allegations). Under

these circumstances, the applicant’s delay was

unreasonable when considering that he could have

brought these claims in a motion for new trial or on

direct appeal. The habeas court’s laches conclusions

are contrary to the record.

Resp’t App’x. 22b

Also contrary to the habeas court’s Conclusion

No. 3, the State has shown material prejudice in being

able to respond to the applicant’s writ claims. Powell

has been in private practice as a criminal defense

attorney since 2002. Powell Affidavit, p.1. Powell was

the applicant’s third lawyer and represented him from

April 4, 2012 until the conclusion of his trial on

January 30, 2014. State’s Writ Exhibit A, Docket

Sheets. The presentation of evidence at trial lasted two

hours and twenty minutes (3 R.R. at 11-88). Id. Three

years after the applicant was sentenced, Powell

became the presiding judge of the 351st District Court

of Harris County, Texas from January 1, 2017 until

December 31, 2020. Powell has no recollection of his

actions in the applicant’s case. Powell Affidavit. And

yet the habeas court disregarded this prejudice to the

State in responding to the applicant’s writ claims. The

applicant delayed the filing of his writ application to

the detriment of Powell’s ability to recollect and the

State’s ability to respond. And he has delayed it for

financial reasons, which has yet to be recognized as a

justifiable excuse by the Court of Criminal Appeals.

See Ex parte Caudill, No. WR-86,762-02, 2019 WL

1461929, at *7 (Tex. Crim. App. Jan. 30, 2019) (not

designated for publication) (the “[l]ack of funds, pro se

status, and/or the lack of sophistication of the law

would not, without more, excuse [the applicant’s]

twenty- two year delay” in seeking habeas relief).

The applicant’s habeas application was filed 5

years and 11 months after the mandate issued in his

Resp’t App’x. 23b

case and 7 years after the applicant was sentenced. See

Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013)

(recognizing that delays of more than five years may

generally be considered unreasonable in the absence of

any justification for the delay). The habeas court’s

wholesale acceptance of the applicant’s “financial

excuse” without considering the prejudice to the State

is contrary to how the Court of Criminal Appeals has

prescribed habeas courts to analyze a claim of laches.

Id. at 209-218.

Additionally, the applicant uses his mother and

brother in a joint affidavit to justify his delay in filing

his writ application. Affidavit of Robert Santana &

Edubina Garcia, August 12, 2021. The mother and

brother claim that they had no idea that the applicant

had an appeal. Id. However, the appellate opinion is

clear that “[a] copy of counsel’s brief was delivered to

appellant. Appellant was advised of the right to

examine the appellate record and file a pro se response

. . . Counsel has complied with the Anders procedures .

. . A copy of the appellate record was provided to

appellant, and appellant was advised of the deadline to

file any pro se response to counsel’s brief. As of this

date, more than thirty days have passed since the

deadline and no pro se response has been filed.”

Santana v. State, No. 14–14–00130–CR, 2014 WL

5795482, at *1 (Tex. App.—Houston [14th Dist.] Nov.

6, 2014, no pet.) (mem. op., not designated for

publication). Instead of subjecting this disingenuous

joint affidavit to some level of scrutiny, the habeas

Resp’t App’x. 24b

court blindly incorporates it into its findings and

conclusions.

Inexplicably,

the

habeas

court

incorporated an irrelevant affidavit from the

applicant’s family members concerning the applicant’s

family members’ understanding of the applicant’s legal

options into its findings and conclusions. It should go

without saying that the applicant’s family members’

understanding of the legal process has no bearing on

the applicant’s understanding of his own legal

remedies.

The State points out that there is no affidavit in

the habeas record from the applicant in support of any

of his claims or in response to laches. To the extent that

the family members’ joint affidavit contains

unsubstantiated hearsay from the applicant, those

hearsay statements should be taken with a large grain

of salt. See Ex parte Young, 479 S.W.2d 45, 46 (Tex.

Crim. App. 1972) (an applicant’s delay in seeking relief

can prejudice the credibility of his claim). The habeas

court also ignores the fact that the applicant filed his

writ application at about the same time that Powell

was getting ready to leave his district court bench.

Powell served as judge of the 351st District Court in

Harris County, Texas until December 31, 2020. The

applicant did not file his writ until December 2, 2020.

It is almost as if the applicant waited until Powell was

gone from the bench to make his claims. This is not an

adequate justification for the unreasonable delay.

In Conclusion No. 4, the habeas court concludes

Resp’t App’x. 25b

that laches is not applicable to the applicant’s case and

that relief is not barred. However, the habeas court

failed to balance the prejudice to the State against any

other equitable considerations that weigh in favor of

granting relief. See Perez, 398 S.W.3d at 208, 217. The

habeas court did not “afford adequate weight to the

State’s broad interest in the finality of a long-standing

conviction.” Id. at 218. Accordingly, the habeas court’s

conclusion that laches is not applicable is not

supported by the record or by the applicable law.

C.

THE HABEAS COURT’S FINDINGS AND

CONCLUSIONS ARE IN CONFLICT WITH

THE APPELLATE RECORD.

The habeas court is in no better position today

to decide these issues than an intermediate appellate

court would have been had the applicant raised

ineffective assistance of trial counsel on direct appeal.

Powell has no recollection of his actions in the

applicant’s case. Powell Affidavit. Doezema provides

little insight. Doezema Affidavit. So how is it that the

habeas court found that trial counsel’s actions were not

the result of a valid trial strategy, but the Fourteenth

Court of Appeals concluded “[w]e have carefully

reviewed the record and counsel’s [Anders] brief and

agree the appeal is wholly frivolous and without merit

. . . [and] we find no reversible error in the record.”

Santana, 2014 WL 5795482, at *1. There has been no

substantive

change

in

the

habeas

court’s

understanding of what happened at trial and why trial

Resp’t App’x. 26b

counsel made the decisions that they did at the time.

As already discussed, the habeas court engaged in

retrospective speculation to come to its conclusions

about trial counsel’s actions. The habeas court could

not have come to some greater understanding of the

issues in the present day because trial counsel did not

provide any further insight than what we already

know from the trial record. Consequently, there is now

an irreconcilable conflict between the outcome on

appeal and the outcome on habeas. The habeas court’s

findings and conclusions are in direct conflict with the

appellate record. Accordingly, the Court of Criminal

Appeals should intervene and resolve this conflict with

an independent review of the record.

III.

PRAYER

The State requests that the Court of Criminal

Appeals find that the habeas record does not support

the habeas court’s November 23, 2021 findings of fact

and conclusions of law granting habeas relief.

Accordingly, the State asks the Court of Criminal

Appeals to exercise its authority to make contrary

findings of fact and conclusions of law, and to enter an

order denying the applicant habeas relief on the

grounds urged in his post- conviction habeas petition.

SIGNED this 9TH day of DECEMBER, 2021.

Resp’t App’x. 27b

Respectfully submitted,

/s/ REHANA VOHRA

Rehana Vohra

Assistant District Attorney

Harris County, Texas 1201

Franklin, Ste. 600

Houston, Texas 77002

Texas Bar ID #24070806

vohra_rehana@dao.hctx.net

Tel: 713.274.5990

CERTIFICATE OF SERVICE

Service has been accomplished on this the 9TH

day of DECEMBER, 2021, by e- mailing a copy of these

Objections to habeas counsel for the applicant,

Jonathan Landers, at Jlanders.law@gmail.com.

SIGNED this 9TH day of DECEMBER, 2021.

Respectfully submitted,

/s/ REHANA VOHRA

Rehana Vohra

Assistant District Attorney

Harris County, Texas 1201

Franklin, Ste. 600

Houston, Texas 77002

Texas Bar ID #24070806

vohra_rehana@dao.hctx.net

Tel: 713.274.5990

Respondent’s Appendix C

(Affidavit by Second-Chair Trial Counsel

Sarah S. Doezema)

Resp’t App’x. 1c

No. 1312173 A

EX PARTE

VICTOR SANTANA

§

IN THE 174TH

§

§

DISTRICT COURT

§

§ HARRIS COUNTY, TEXAS

__________________________________________________

AFFIDAVIT OF. SARAH S. DOEZEMA

I, SARAH S, DOEZEMA, file this affidavit the

information contained herein is within my personal

knowledge 'and is true and correct to the best of my

recollection. This affidavit is purposed to summarize

the actions taken to represent Applicant in cause

number 1312173, respond to the allegations of

ineffective assistance of counsel contained in the

instant application for writ of habeas corpus, and

specifically answer the following questions:

In the above captioned matter, I was second

chair to George Powell. I was not under the

employment of Mr. Powell at the time. This was a

client of Mr. Powell’s. I am not in the possession of any

records or files for this Defendant. In compliance with

the Court’s order, Please see answers to the questions

listed below:

1. Do you have your file related to this case? If not,

where was the file stored, and what happened to that

file? This was a client of Mr. Powell’s. All records

Resp’t App’x. 2c

and files would have been maintained by his

office.

2. Describe your preparation for trial in Mr. Santana’s

case. What research was performed prior to trial?

What witnesses were interviewed prior to trial? I was

not the lead on this matter. However, I reviewed

all of the discovery materials provided by the

State of Texas, reviewed the file maintained by

the office of Mr. Powell. I only personally

interviewed the Defendant.

3. At the time of Mr. Santana’s trial, how many

criminal trials had you been lead attorney in? I was

not the lead in this trial. I believe at this time I

had participated in 8 criminal trials; I was lead

in 2-3.

4. At the time of Mr. Santana’s trial describe your

nature of your law practice and how long yon had been

practicing criminal defense? I began practicing law

in 2008. I began my practice in criminal law.

5. Why did you not object to hearsay statements during

the testimony of Henry Anderson or Officer Hope

related to the cause of Ms. Gonzalez’s injuries, (3 RR at

18, 19, 28-30), but object to the same hearsay

statements contained in state’s exhibit 8 (3 RR at 41)?

The statements did not contradict the theory of

the defense. For the cross-examination, I did not

believe a hearsay objection to be appropriate or

required. I was not in the best interest of theory

of the defense that the complaining witness

Resp’t App’x. 3c

made several unreliable statements the

exclusion of said statements did not bolster said

theory.

6. Do you believe you properly requested notice of the

state’s intent to use prior bad acts pursuant to Texas

Rule of Evidence 404? What is your understanding of

how to properly requested Notice under Rule 404? This

would have been handled by Mr. Powell.

7. What is your understanding of how a defendant can

“open the door”' to prior bad acts in Texas? Presenting

an argument, or line of questioning that allows

the opposing counsel to present evidence that

may not otherwise be admissible.

8. Under what circumstances can prior had act

evidence be admitted against a defendant in Texas?

Please see Texas Rules of Civil Procedure 404.

9. Why didn’t you object to the prosecution’s questions

concerning Mr. Santana’s forcing Ms. Gonzalez to call

the prosecutor to change her story and request that

charges be dropped? 3 RR at 61-64. Do you believe this

evidence was prior bad act evidence? If so, why do you

believe the evidence was admissible? I did not crossexamine Ms. Gonzalez.

l0. Why did you ask Ms. Gonzalez questions about why

she did not like Mr. Santana? 3 RR at 65-67. Did you

expect this line of questions to “open the door” to prior

bad acts by Mr. Santana? I did not cross-examine

Ms. Gonzalez.

Resp’t App’x. 4c

11. After the trial, court ruled you had opened the door

to prior bad act evidence, (3 RR at 69-72), why did you

attempt to withdraw your previous questions? Also,

since the door was already open, why did you abandon

your previous line of questions about why Ms.

Gonzalez did not like Mr. Santana? I did not crossexamine Ms. Gonzalez.

12.Why didn’t you request a limiting instruction when

the prosecution admitted prior bad. act evidence

showing that Mr. Santana had abused Ms. Gonzalez in

the past, was controlling and abusive, was always

physically violent, spied on her at work, punched her

in the ribs, paddled her with an old school paddle,

would hit her and her sister for not properly preparing

his food, made her and her sister eat jalapenos and reeat them if they were spit back up, and paddled their,

feet with a paddle? 3 RR at 77-83? I did not crossexamine Ms. Gonzalez.

13.Why didn’t you request a limiting instruction when

Ms. Gonzalez testified that Mr, Santana threatened to

harm her relatives if she ever called the police about

abuse? 3 RR at 85. I did not cross-examine Ms.

Gonzalez.

14. Why didn’t you request a limiting instruction when Ms. Gonzalez testified that Mr. Santana refused

to let her sister retrieve her personal belongings after

her sister moved out of the family home? 3 RR at 85. I

did not cross-examine Ms. Gonzalez.

Resp’t App’x. 5c

15. Why didn’t you request a limiting instruction when

Ms. Gonzalez testified Mr. Santana offered to pay a

friend $500 to keep Ms. Gonzalez quiet? 3 RR at 85. I

did not cross-examine Ms. Gonzalez.

16. What is your understanding of the permissible

bounds of opening statements? An opening

statement is purposed to provide a trier of fact a

road map of what evidence is to be presented.

17. At the beginning of trial, did you intend to put on

any evidence at Mr. Santana’s trialck? I do not

believe that it was the intention of the defense to

make a presentation.

18. What is an extraneous offense, or prior bad act? An

act or offense committed by the Defendant that

is not included in the indictment against the

Defendant.

19. Do you still believe that no extraneous offense

evidence was presented by the State at Mr. Santana’s

trial? See 3 RR at 95-96. Please reference the

responses of Mr. Powell.

20. Why did you object to the extraneous offense

instruction which was included in the original jury

charge? See 3 RR at 95–96. Please reference the

responses of Mr. Powell.

21. Do you believe the definition of serious bodily injury

should have been included in the jury charge? Please

reference the responses of Mr. Powell.

Resp’t App’x. 6c

22. Why didn’t you request a jury instruction regarding

the definition of serious bodily injury? Please refer to

the responses of Mr. Powell.

23. What is your understanding of when it is

permissible to read testimony back to a jury during

jury deliberations? It is permissible to read

testimony back to jurors, if the jurors disagree

about the testimony that was provided by a

particular witness.

24. Why didn’t you object to the jury being read back

testimony related to the prior bad act evidence

admitted against Mr. Santana. CR at 464; 6 R.R. at 416. Please refer to Mr. Powell’s responses.

25. Are prosecutors permitted to inject personal

opinions concerning the truthfulness of the

complainant into statements made to die jury? No.

26. Are prosecutors permitted to rely upon

inadmissible evidence during their arguments to the

jury? No.

27. Why didn’t you object to the prosecutors opening

statement when the prosecutor explained that witness

Henry Anderson “continued to press Kristine

Gonzalez. And he’s going to tell you that eventually she

said, ‘My stepfather did it.’” 3 RR at 9. Is this statement

hearsay? Please refer to Mr. Powell’s responses.

Resp’t App’x. 7c

28. Why didn’t you object to the prosecutors opening

statement when the prosecutor explained that witness

“Officer Hope went to the hospital, the hospital that

Kristine Gonzalez had to go to because of her injuries

and there she finally told Officer Hope who had done

it. It was her stepfather.” Id. Is this statement

hearsay? Please refer to Mr. Powell’s responses.

29. Why didn’t you object to the following statement by

the prosecutor in opening statements: “But what you’re

going to hear from her on the stand today is the truth

about what happened on July 5th, the truth about this

man assaulting her.” Id at 10. Was this opinion by the

prosecutor admissible in opening statement? An

opening statement is not evidence, so no is not

admissible. I am not sure what this question is

asking.

30. Why didn’t you object to witness Henry Anderson’s

statement that “[s]he said it happened at home. Her

stepfather hit her upside the head with a stick.” Id. at

18. Was this statement hearsay? Please refer to Mr.

Powell’s responses.

31. Why didn’t you object to the following statement by

Mr. Anderson: “At first she told us that, Yeah, I slipped

and fell, but when we looked at it, we knew it wasn’t.

And so we kept talking to her and she finally admitted

and told us that her stepfather hit her in the head with

a stick.” Id. at 19. Was this statement based upon

hearsay? Also, was this statement improper bolstering

evidence? Please refer to Mr. Powell’s responses.

Resp’t App’x. 8c

32. Why did you not object when Officer Hope testified

that Ms. Gonzalez was “she was extremely fearful. She

was afraid of getting in trouble at home and she was

afraid of her mother and daughter - or mother and

sister being -- coming up injured ‘cause of the

defendant.” 3 RR at 29. Is this testimony based upon

hearsay? Does the testimony involve inadmissible

prior bad acts? It could he argued as such.

However, the testimony was not contrary to the

defense strategy in this matter.

33. Why did you not object when Officer Hope testified

that Ms. Gonzalez had “described it as a large stick

that her stepfather had kept in the bedroom of his

house.” 3 RR at 30. Was this inadmissible hearsay?

Because it was not a statement that qualified as

hearsay. No. And the testimony was not adverse

to the defense strategy.

34. Why did you not object when Officer Hope testified

that Ms. Gonzalez "said it [the large stick] was in the

bedroom next to a dresser right near the door.” Id. Was

this inadmissible hearsay? Because it was not a

statement that qualified as hearsay. No. And the

testimony was not averse to the defense strategy.

35. Why did you not object when Officer Hope testified

that Henry Anderson told her Kristine’s injuries looked

“very different” on July 5th? Id. at 39. The statement

was not contrary to the defense strategy. The

witness was clearly exaggerating or being

untruthful.

Resp’t App’x. 9c

36. What witnesses, if any, had the defense planned to

call after the opening statement? Please refer to Mr.

Powell’s Responses.

37. Do you believe you can give an opening statement

when you do not intend to prove anything through

evidence? Yes.

38. Why did you tell the trial judge that no extraneous

offenses had been presented? Id. at 95. Please refer

to the responses of Mr. Powell.

39. Had you prepared any witnesses for the

punishment phase of the trial? Yes, there were

witnesses prepared and present. Please refer to Mr.

Powell’s responses.

40. Had you interviewed or investigated mitigation

evidence for the punishment phase of the trial? Yes.

Please refer to Mr. Powell’s responses.

41. Describe what efforts you undertook in mitigation

investigation, if any.

42. Did you have witnesses at court for the punishment

phase who were ready to testify? Yes.

43. If not, why not? N/A

Resp’t App’x. 10c

/s/

Sarah Sue Doezema

SIGNED under oath before me on this 15th day of

April, 2021.

/s/

Margue A. Fountain

Notary Public, State of Texas

Respondent’s Appendix D

(Excerpts from the Clerk’s Record for

Petitioner’s Trial)

Resp’t App’x. 1d

CLERK’S RECORD

VOLUME I of I

Trial Court Cause No. 1312173

In the County Criminal Court at Law #____ of

Harris County, Texas

In the 174th District Court of

Harris County, Texas

Honorable RUBEN GUERRERO,

Judge Presiding

VICTOR SANTANA, APPELLANT

VS

THE STATE OF TEXAS

Appealed to the Court of Appeals for the Fourteenth

District of Texas, At Houston, Texas

Attorney for Appellant(s)

MARK KRATOVIL

ATTORNEY OF RECORD

Resp’t App’x. 2d

1201 FRANKLIN 13TH FL HOUSTON, TX 77002

Telephone No: 713-368-0016

SBOT No: 24076098

Delivered to the Court of Appeals for the

Fourteenth District of Texas, at Houston, Texas on

the 24TH day of March, 2014.

Chris Daniel, District Clerk

Harris County, Texas

By: “/s/” Lisa Arriaga, Deputy

Resp’t App’x. 3d

Resp’t App’x. 4d

Resp’t App’x. 5d

Resp’t App’x. 6d

Resp’t App’x. 7d

Resp’t App’x. 8d

Respondent’s Appendix E

(Excerpts from the Reporter’s Record for

Petitioner’s Trial)

Resp’t App’x. 1e

[Line numbers and received date removed]

REPORTER’S RECORD

VOLUME 3 OF 7 VOLUMES

APPELLATE CASE NO. 14-14-00130-CR

TRIAL COURT CAUSE NO. 1312173-A

VICTOR SANTANA

Appellant

§ IN THE DISTRICT COURT

§

§

VS.

§ HARRIS COUNTY, TEXAS

§

THE STATE OF TEXAS §

Appellee

§ 174TH JUDICIAL DISTRICT

******************************

GUILT AND INNOCENCE PHASE

TESTIMONY

******************************

On the 29th day of January, 2014, the following

proceedings came on to be heard in the above-titled and

numbered cause before the Honorable Ruben

Guerrero, Judge presiding, held in Houston, Harris

County, Texas;

Proceedings reported by computer-aided

transcription/stenoraph shorthand.

ORIGINAL

Resp’t App’x. 2e

[Powell’s Cross-Examination of Henry Anderson]

*

*

*

Q. Okay. At any point during the conversations you

had with her about this incident, did she ever mention

a boyfriend?

A. No.

Q. Did she ever mention any problems she was

having not necessarily with a boyfriend but any other

boy?

A. No.

Q. At any point since the time this took place did

you learn of any complications she had with a boy?

A. No.

Q. Okay. Now, you mentioned that this is not the

first story that she gave you, right? The story

concerning her stepfather was not the first one she

gave you that day, is it?

A. The first -- no.

Q. Thank you, sir.

MR. POWELL: Pass the witness.

*

*

*

Resp’t App’x. 3e

[State’s Direct Examination of Officer Stephen Hope]

*

*

*

MS. GAIDO: Your Honor, at this time state

would offer into evidence State’s Exhibit No. 10 and

tender to defense counsel for objection.

(State’s Exhibit No. 10 was offered.)

MS. DOEZEMA: No objection.

THE COURT: Admitted without objection.

(State’s Exhibit No. 10 was admitted.)

Q. Can you tell the jury one more time where you

found State’s Exhibit No. 10?

A. It was in the defendant’s bedroom next to a

dresser.

Q. Can you describe for the jury sort of because

they won’t be able to feel it just yet, sort of the heft of

State’s Exhibit No. 10?

A. It’s a, uh, it’s a sledgehammer or ax handle

hickory stick. So, it weighs a good couple of pounds.

*

*

*

Resp’t App’x. 4e

*

*

*

CROSS- EXAMINATION

[of Officer Hope]

BY MS . DO EZ EM A:

Q. Hello, officer. I’m Sarah Doezema. Nice to meet

you.

A. Uh-huh.

Q. I just have a few questions for you. One, that

the only information outside of this stick that you

received is the story from Kristine -A. No.

Q. Okay. Did you ever have knowledge of her

changing that story?

A. No.

Q. So, there’s no -- you don’t have any firsthand

personal knowledge of what happened other than the

statement from Kristine?

A. No, ma’am, just her statement.

*

*

*

Resp’t App’x. 5e

*

*

*

KR IS TI NE GON ZA LE Z,

having been first duly sworn, testified as follows:

DI RE CT EXAMINATION

BY MS. GAIDO:

Q. Good morning.

A. Good morning.

Q. Would you please, introduce yourself to the

ladies and gentlemen of our jury?

A. Yes, ma’am. My name is Kristine Gonzalez.

Q. And, Ms. Gonzalez, how old are you?

A. I’m 27 years old.

Q. Where were you born?

A. Houston, Texas.

Q. And where did you grow up, what part of town?

A. Um, southeast.

*

*

*

Resp’t App’x. 6e

[Direct Examination of Kristine Gonzalez, continued]

*

*

*

Q. When you say that you were called to a room,

to which room were you called?

A. To the defendant’s room.

Q. The room that he shared with your mother?

A. Yes, ma’am.

Q. And you said that y’all got into an argument.

A. Yes, ma’am.

Q. Was it a big argument or a little argument?

A. To me, it was a little argument, but other than

that, I don’t remember.

Q. Do you remember what happened uring the

argument? Was the defendant angry or was he calm?

A. He was angry.

Q. And how could you tell that he was angry?

A. Just by the color in his face. He turned red and

– he had just turned red.

Q. What happened during the argument?

A. He picked up the weapon, which is the hickory

stick on the table.

Resp’t App’x. 7e

[Direct Examination of Kristine Gonzalez, continued]

Q. Was July 5th of 2011 the first time that you

had ever laid eyes on the stick?

A. No, ma’am.

Q. Where was the stick normally kept?

A. By the bedside where he could reach it by the

dresser and the bed or if no, tucked underneath the

bed.

Q. On the morning of July 5th during the

argument, you said he picked up this stick.

A. Getting knocked in the head with it.

Q. Was July 5th of 2011 the first time that you

had ever laid eyes on the stick.

A. Yes, ma’am.

Q. What did the defendant do with the stick that

morning?

A. Striked me twice on the head.

Q. Would you say that he used a little force or that

he used a lot of force?

A. For me, he used all the force he had, his

natural force.

Q. This might sound silly, but did it hurt?

A. Yes, ma’am, very much.

Resp’t App’x. 8e

[Powell’s Cross-Examination of Kristine Gonzalez]

Q. Okay. When your grandfather died, did he

leave a van to Mr. Santana?

A. Yes, sir.

Q. How come you don’t like Mr. Santana?

MS. GAIDO: Your Honor, may we approach?

THE COURT: You may.

(At the bench)

THE COURT: Did he leave a van?

MS. GAIDO: Your Honor, I think they’ve opened

the door. They’ve clearly – I think they’ve opened the

door to all the prior assault history. I know that we

admonished – I know –

MR. POWELL: We have not, Judge.

MS. GAIDO: Your Honor, he just asked the

witness why she doesn’t like Mr. Santana. If she is

not able to answer honestly, it will leave a bias in

their mind that she has some bias against him.

MS. DOEZEMA: We withdraw the question.

MS. GAIDO: No, Your Honor, it’s already been

opened.

MR. POWELL: Judge, it has not been – been

opened.

Resp’t App’x. 9e

MS. GAIDO: Your Honor, the first question that

they asked on cross-examination was you don’t like

the defendant; correct?

*

*

*

THE COURT: I agree. Anything else?

MR. POWELL: Nothing further, Judge.

MS. GAIDO: Thank you, Your Honor.

THE COURT: She answers correctly or she answers

– I’m not going to be abel to judge whether she’s telling

the truth or no. So, it doesn’t matter.

MS. GAIDO: Sure, Judge, but she is allowed to get

into things that were previously limined out.

THE COURT: Yes.

MS. GAIDO: Thank you, Your Honor.

THE COURT: Let’s get the jury back in here so we

can finish. We’ll be breaking about 11:30 to take some

pleas.

*

*

*

Resp’t App’x. 10e

[Cross-Examination of Kristine Gonzalez, continued]

*

*

*

Q. (By Mr. Powell) I withdraw the previous

question and I’d like to ask you, ma’am, you mentioned

that you were in the doorway when you were struck.

Were you facing the doorway or did you have your back

to the doorway?

A. My back was towards the door.

Q. Okay. And you said that you were struck how

many times?

A. Twice.

Q. You mentioned that the pain was like did you say

recovering from surgery?

A. Yes, sir, like I was – I don’t know how –

recovering like in so much pain I couldn’t even move

and just – it just hurt so bad, so much.

Q. But you went to work that day; right?

A. Yes, sir. Well, I attempted to work, but they told

me they had called somebody in to cover my shift.

Q. But you actually got to work; right?

A. I went back to work, yes.

Q. Okay. And you were performing your job at the

time that you were approached by the manager?

Resp’t App’x. 11e

A. No. I was about to clock in. I was getting ready,

fixing my shirt about to go back downstairs and clock

in.

Q. So, you weren’t working at the time he

approached you?

A. No. The manager, no.

Q. But after you were struck, immediately after

you were struck, you said you continued to take care of

your grandmother?

A. Yes, went about the normal day.

Q. Okay. And you didn’t call the police; right?

A. No. No, sir.

Q. And so you first told the manager you got hit by

a door; right?

A. Yes, sir.

Q. And then the story became that Victor did it;

right?

A. Yes, sir.

Q. And then you called in and said it didn’t happen

like that and you wanted to withdraw your story; right?

A. Yes, sir.

Q. And now we’re back to Victor doing it again;

right?

Resp’t App’x. 12e

A. Yes, sir.

Q. Where – where did you live during the time that

this case was pending?

A. 106 Altic.

Q. But that’s the -- that’s the address of the

occurrence; right?

A. Yes.

Q. Okay. But after that time, you continued to work

for Fiesta; right?

A. For a brief period of time, yes, sir.

Q. Okay. And then where did you work after that?

A. I was off for about a year, maybe, pretty close to

two years.

Q. And you weren’t still living at the Altic address;

right?

A. No, sir.

Q. Okay. Where were you living after that?

A. An apartment in Texas City.

Q. Okay. Was that the apartment with your mom?

A. With my mom and grandmother, yes sir.

*

*

*

Resp’t App’x. 13e

[Kristine Gonzalez excused as a witness]

MR. POWELL: Thank you, Judge. We have no

further questions for the witness.

THE COURT: All right. What says the state?

MS. GAIDO: Your Honor, the state has no more

questions for this witness.

*

*

*

THE COURT: All right. You may step down.

THE WITNESS: Yes, sir.

THE COURT: May this witness be excused?

MS. GAIDO: She may by the state, Your Honor.

MR. POWELL: She may by the defense, Judge.

THE COURT: All right. You are excused. Thank

you.

THE WITNESS: Thank you, sir.

THE COURT: Call your next witness.

MS. GAIDO: Your Honor, the state rests.

*

*

*

Resp’t App’x. 14e

*

*

*

CLOSING ARGUMENT

*

*

*

MS. DOEZEMA: . . . . I want to talk to you a little

bit about the credibility of Kristine, the person who is

alleging that Victor Santana assaulted her.

. . . She described to you that she was – had her

back up against a door (indicating), that that door was

closed, that Victor Santana then took this object

(indicating) and hit her twice with it.

*

*

*

Now, Kristin submitted multiple stories to the

prosecutor, multiple stories to the officer about what

happened. The first story was that she fell. The second

story was that Mr. Santana assaulted her. The third

story was that it was a boyfriend. Now, this boyfriend

was identified as Oscar in the beginning. We never

heard anything else about this boyfriend. Don’t know

if a boyfriend existed… Then she comes back and says

that I want you to drop the case… And then she comes

back again and says, okay, I want you to pursue the

case against Victor Santana.

Resp’t App’x. 15e

We don’t know the truth. We have – we have no idea

what happened. She’s said so many different stories,

how do we know that what she’s telling us today is the

truth?

*

*

*

Now, let’s talk about the injuries. If you have a large

man and a large stick and he’s hitting you hard, I

submitted to you that it makes sense that the injuries

would be greater than what they were… In the

bedroom, she’s hit with a huge stick on the head twice.

She’s said that she suffered such…a horrible pain that

she felt like she was recovering from surgery.

Well, it doesn’t make sense then that she would not

try to go to the hospital, not call anybody to help her,

not even reach out to the people outside of the bedroom

… She doesn’t…disclose the fact that she was hit to the

other family members. And then where are those

family members...[w]hy isn’t the sister here to testify

on her behalf to say that I heard it, I saw her

afterwards, that something happened…?

*

*

*

Now, back to her timeline. So, she says it happened

at 5:30. She sent out and assisted the grandmother in

getting something to eat and going to the bathroom and

went on her daily activities. Okay. Then at about 12:00

Resp’t App’x. 16e

p.m., she took the Metro to Fiesta where she worked.

She did all those things and then submit to you that

the injury was so bad that it felt like she was leaving

surgery…

The next thing that doesn’t make sense, this is not

a child we’re talking about. Okay? This is a 24 year old

…that is employed that didn’t complain of any

economic hardship, that could move out of this house

…If she was being abused by this person, if this person

was hitting her over the head with objects or abusing

her in any other way, leave! Why didn’t you tell on this

guy?

*

*

*

MS. DOEZEMA: …I encourage you to look and

back me up and consider if you’re a big person and how

those injuries would have occurred…And then consider

who would stay in a home if you had the opportunity to

leave.

*

*

*

The witnesses that were there were not presented

to you. They could have been. The prosecution has the

power to subpoena those people. They were not

presented to you.

*

*

*

Resp’t App’x. 17e

*

*

*

CLOSING ARGUMENT

MR. POWELL: …I thank you for your attention

that you give in this case and the attention that you’’ll

give during the time of your deliberations. The store

manager, Mr. Anderson, and Officer hope, while very

presentable witnesses, could not give you anything

beyond what they’d been told by the witness you last

saw up there and that’s Kristine...

So, let’s look closely at her and her credibility ‘cause

that’s the only evidence upon which you can base your

decision.

*

*

*

Kristine said that Victor became abuse after her

grandfather died in 2011. She said that she’s 27 now.

So, that would put her around 24. And at 24, there was

no one she could reach out to according to her, not the

police, not a friend, not a co-worker, not a family

member, not a boyfriend. And that just doesn’t sound

credible that there wouldn’t be one person, not one

person you could confide in about what goes on in your

life.

*

*

*

Resp’t App’x. 18e

…Victor is Kristine’s mother’s boyfriend. She’s

made it clear that she did not like him. I can’t be

exactly sure why ‘cause so many of the stories have

changed so many different times, but I do know she

doesn’t like him. And I think one convenient way to get

rid of somebody that you don’t like is to accuse them of

a crime and hopefully they’ll go to jail and you won’t

have to worry about it ‘cause they won’t be around.

*

*

*

(Jury begins deliberations)

THE BAILIFF: All rise for the jury.

(Jury present)

THE COURT: Be seated, please. It’s almost five

o’clock. So, it’s time to let y’all go because my – my car

turns into a pumpkin – no, we’ll, uh, let you go for the

day and come back tomorrow at nine o’clock and just

go straight to the jury room and start deliberating. You

know where it is; right?

JURORS: Yes, sir.

THE COURT: Okay. So, I’ll see

morning at nine o’clock.

*

*

*

y’all tomorrow