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NO. WR-82,849-01

EX PARTE §

§ IN THE TEXAS COURT

§

§ OF CRIMINAL APPEALS 

ROSHAN SAH §

OBJECTIONS TO THE COURT’S ADOPTION 

OF THE STATE’S “PROPOSED MEMORANDUM,

FINDINGS OF FACT AND CONCLUSIONS OF LAW”

Now comes Roshan Sah, Applicant, and files these objections to the trial 

court’s adoption of the State’s “Proposed Memorandum, Findings of Fact and 

Conclusions of Law” recommending relief be denied. In support thereof, Applicant

shows the following:

On August 25, 2014, Applicant filed an application for a writ of habeas corpus

in which he urged that his trial counsel provided ineffective assistance in failing to 

pursue a reduced punishment for acting in sudden passion. See TEX. PEN. CODE § 

19.02(d). The State filed an answer in which it requested the trial court to instruct 

Applicant’s trial attorney to submit an affidavit addressing Applicant’s complaint, 

which he did on November 11, 2014. 

The State then filed “Proposed Memorandum, Findings of Fact and 

Conclusions of Law.” In that document, the State suggested the trial court reject 

Applicant’s application because the Presentence Investigation Report prepared 

ahead of Applicant’s trial stated that, according to the “police version [of events],” 

Applicant made the reasoned decision to murder the complainant prior to killing 

himself. (St. Pr. FOF and COL at 2); (see PSR at p. 6). The State contended this 

WR-82,849-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/12/2015 2:06:38 PM

Accepted 2/12/2015 2:26:58 PM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 2/12/2015 ABEL ACOSTA, CLERK 
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“would have precluded the trial court from finding that the murder was the result of 

an immediate influence or sudden passion,” and, in light of this, Applicant’s 

counsel’s decision not to pursue a reduced punishment for acting in sudden passion

was reasonable, and could not have prejudiced Applicant. (St. Pr. FOF and COL at 

2-3, 5-6). Sah then filed his Proposed Findings of Fact and Conclusion of Law in 

which he explained that that was an entirely incorrect understanding of the law, 

but on February 9, 2015, the trial court adopted the State’s proposal and 

recommended relief be denied.

The trial court was wrong to do so. Contrary to the State’s contention, 

evidence that Applicant planned the complainant’s murder did not preclude the 

court from finding that the murder was the result of an immediate influence or 

sudden passion. A defendant need only prove the issue by a preponderance of the 

evidence, see TEX. PEN. CODE § 19.02(d), and here, though the Presentence 

Investigation Report stated that Applicant made the reasoned decision to murder 

the complainant prior to killing himself, Applicant testified at his sentencing 

hearing that he didn’t remember telling the detective any such thing. (PSR at p. 6; 

RR2: 75). And then, on cross-examination, Applicant specifically testified the 

complainant’s death “wasn’t intentional,” and that he had not told the detective it 

was premeditated. (RR2: 78). Additionally, Applicant’s friend, James Moreno, 

testified that Applicant told him he did not plan to murder the complainant—“he 

bought [the gun] with the intentions of taking his own life. He said he never 

planned on using it on her.” (RR2: 46). 
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Certainly, then, the trial court was not precluded from finding, by a mere 

preponderance of the evidence, that Applicant acted in sudden passion. And, in light 

of the great wealth of evidence supporting such a finding—indeed, this case is a 

near textbook example of sudden passion, as Applicant’s feelings for the 

complainant were of the strength that discovering her sexual activity, and receiving 

her vitriolic insults, were extremely distressing, and it was undisputed at trial that 

he shot the complainant immediately upon hearing as much, without any 

reflection—there was a reasonable probability it would have done just that.

Counsel’s decision not to pursue such a defense was thus unreasonable and 

prejudicial.

Accordingly, Applicant respectfully requests this Court to disregard the trial 

court’s findings of fact and conclusions of law and to instead adopt his proposed 

findings and conclusions and grant him relief.

Respectfully submitted,

/s/ Robert N. Udashen, P.C.

ROBERT N. UDASHEN, P.C.

State Bar Card No. 20369600

rnu@sualaw.com

/s/ Brett Ordiway

BRETT ORDIWAY

Bar Card No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road

Suite 250
4

Dallas, Texas 75201

214-468-8100

214-468-8104 fax

Attorneys for Applicant

Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of the foregoing 

Objections to the Court’s Adoption of the State’s Proposed Findings of Fact and 

Conclusions of Law was electronically served to the Tarrant County District 

Attorney’s Office on February 12, 2015.

/s/ Robert N. Udashen, P.C.

ROBERT N. UDASHEN, P.C.