### 1 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 “P roposed Memorandum, F indings of Fact and

Conclusions of L aw ” recommending relief be denied. In support thereof, Applica nt

shows the following:

O n 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 T EX

. P EN

. C ODE §

19.02(d). The State filed an answer in which it requested the trial c ourt 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 “P roposed Memorandum, F indings of Fact and

Conclusions of L aw .” In that document, t he 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 ve rsion [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

### 2 “ would have precluded the trial court from finding that the murder was the result of

an immedi ate 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 P roposed 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 c ourt 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 defenda nt need only prove the issue by a preponderance of the

evidence

, see T EX

. P EN

. C ODE § 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 , A ppli cant 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 no t 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

planne d on using it on her.” (RR2: 46 ).

### 3 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

— i ndeed, 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 , a nd it was undi sputed at trial that

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

reflection

— there was a reasonable probabilit y it would have done just that.

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

prejudicial.

Ac cordingly, Applicant respectfully requests this Co urt to disregard the trial

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

findings and conclusions and grant him relief

.

Respectfully submitted,

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

R OBERT N. U DASHEN

, P.C.

State Bar Card No. 20369600

rnu@sualaw.com

/s/ Brett Ordiway

B RETT O RDIWAY

Bar Card No. 24079086

bordiway@sualaw.com

S ORRELS

, U DASHEN & A NTON

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 w as electronically served to the Tarrant County District

Attorney’s Office on February 12, 2015

.

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

R OBERT N. U DASHEN

, P.C.