1 No. WR

- 83,375

- 01

Writ No. 4762 -A

EX PARTE § IN THE TEXAS COURT § § OF § SHELTON MONTGOMERY § CRIMINAL APPEALS

OBJECTIONS TO THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW

NO W COMES Shelton Wade Montgomery , Applicant, and files these Objections to the Trial Court’s Order Denying Relief , filed August 31, 2015. I n support thereof , Montgomery would show the following:

I. The trial court denied Montgomery due process of law in ruling on his writ application withou t notifying him of histrial counsel’s filing of an affidavit, and allowing him to respond Montgomery first objects to the procedural manner by which the

district court rejected his claims. Indeed, t he district court’s conduct calls into question whether Montgomery can obtain a just adjudication of his

writ.

While Montgomery’s writ was pending, the undersigned counsel’s

staff called the district court and clerk on several occasions to inquire if WR-83,375-01 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 9/9/2015 4:52:28 PM Accepted 9/10/2015 8:23:08 AM

ABEL ACOSTA CLERK2 any documents were filed. Counsel’s staff was repeatedly to ld that nothing was of record. It now appears, however, that Montgomery’s trial attorney had filed an affidavit, and it simply wasn’t disclosed to Montgomery . In fact, as of the date of this filing, Montgomery has never received

any document from the court

. The court nonetheless entered its findings on August 31, 2015, without forwarding the affidavit to Montgomery or his counsel. It seems

t he trial court immediately denied the writ , without providing undersigned counsel either the opportunity to file hi s own proposed findings or to respond to the affidavit.

While article 11.07 of the Code of Criminal Procedure grants trial

court s great latitude in determining the merits of writ applications, it

does not allow for this patently biased approach . On the basis of the foregoing chronology, no reasonable person can assert that the factual determinations necessary to the resolution of this case were made in a reasonable fashion. Montgomery was not afforde d even a modicum of due process; specifically, notice and the opportunity to be timely heard.

II. Montgomery’s attorney ’ s affidavit, alone, did not provide enough for the c ourt to rule on his application3 In a case that turns on issues of credibility, it is inappropriate to

resolve controverted facts witho ut an evidentiary hearing where witnesses are subject to cross

- examination. In Ex parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005), Presiding Judge Keller noted that the most effective way of determining the reliability of witness testimony is through th e “crucible of cross

- examination.” Id . at 842 (concurring opinion). Similarly, in Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004), the Court stated

Affidavits . . . are widely and appropriately used in criminal and civil proceedings to determine if there are material disputed facts and to define exactly which facts are disputed. They are not always well

- suited for resolving disputed facts. Id. at 210 (footnotes omitted).

Accordingly, in this case, the c ourt should not decide that Montgomery’s attor ney’ s affidavit resolves all the factual issues in this case.

Nor should the c ourt’s decision be based merely on the fact that the c ourt knows the attorneys. This is an inappropriate way to make a credibility

determination. Gallego v. United States, 174 F. 3d 1196 (11th Cir. 1999), is particularly instructive on this issue. In Gallego, the court stated:

It is perfectly legitimate for the district court to find, based on all the evidence in the record, that a defendant’s testimony4 about his participation in a drug scheme is not credible. The magistrate judge here, however, based the decision on the factthat the defendant’s allegations were unsubstantiated and incorrectly found as a matter of law that defendant could not carry his burden without presenting som e evidence in addition to his own word, which is contrary to that of counsel’s. The magistrate says nothing about the internal consistency of the defendant’s testimony, or his candor or demeanor on the stand. Indeed, the magistrate does not even state simp ly why the defendant’s lawyer is the more credible witness in this case. There is nothing in the report to indicate the magistrate weighed defendant’s credibility. Compare United States v. Camacho , 49 F.3d 349 (11th Cir. 1994) (court made specificfindings of fact after an evidentiary hearing regarding defendant’s credibility), cert. denied , 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). The fact that defendant’s testimony is uncorroborated is not enough standing alone to support acredibility finding. Counsel’s testimony was also unsubstantiated by other evidence.

While we appreciate the concerns enunciated in Underwood , we cannot adopt a per se "credit counsel in case of conflict rule," w hich allows that in any case where the issue comes down to the "bare bones testimony" of the defendant against the contradictory testimony of counsel, defendant is going to lose every time. We therefore remand for a new evidentiary hearing. Because of the intervening death of District Judge C. Clyde Atkins, the case will necessarily come before a different district judge. We suggest that in view of the nature of the case, if the matter is referred to a magistrate, it be sent to a different magistrate judge.

Id . at 1198

- 99.5 Indeed, the f ederal courts have routinely favored live witness testimony. This is because a n evidentiary hearing allows the trier of fact to observe the witnesses and judge their credibility. See , Webster v. Offshore Food Service, Inc. , 434 F.2d 1191, 1193 (5th Cir. 1970) (trier of fact is entitled to weigh the credibility of witnesses and value his testimony in light of his demeanor on the stand); First National Bank v. Martin , 963 F.2d 809, 814 (5th Cir. 1992) (bankruptcy judge had oc casion to observeMartin and listen to his testimony, which necessarily includes the opportunity to study any changes in both his demeanor and tone of voice); Port Arthur Towing Company v. John W. Towing, Inc. , 42 F.3d 312, 318 (5th Cir. 1995) (witness’ ma nner and demeanor on the witness stand weighed against credibility); United States v. Thomas , 12 F.3d 1350 (5th Cir. 1994) (appellate court must give due deference to the credibility determinations of the district court who has the opportunity to observe t he demeanor of the witnesses).

Valid judgments about credibility cannot be made from a review of a paper record alone. Thus, even if the c ourt were to find that counsel’s alleged actions were sufficient, the court should have order ed a live evidentiary hearing to resolve whether counsel in fact behaved as such. See ,6 e.g., Perillo v. Johnson , 79 F.3d 441, 444 (5th Cir. 1996) (petitioner entitled to discovery when there is factual dispute which, if resolved in petitioner’s favor, would entitle petitioner to relief, and the State has not afforded petitioner a full and fair evidentiary hearing).

III. The trial court has either never made findings of fact and conclusions of law, or has not alerted Montgomery that it did

This Court remanded this case in June with instruction to the trial

court to make findings of fact and conclusions of l aw. Montgomery has

never been alerted to a ny such document being entered. Thus, the trial court either ignored this Court’s order and denied Montgo mery’s writ application without providing findings of facts and conclusion of law, or again conducted this matter in violation of Montgomery’s right to due process. Accordingly, t his case should again be remanded for the entry of findings.

IV. Conclusion

In response to Montgomery’s allegations that his trial attorney failed to render effective assistance of counsel by not presenting available character and expert t estimony, the trial court simply denied the writ7 without meaningful consideration

. The court den ied Montgomery any opportunity to respond to his trial counsel’s affidavit and entered a one

paragraph order. Further, the court failed to follow this C ourt’s instructions to enter findings of fact and conclusions of law. Montgomery has never even been p rovided with his trial counsel’s

affidavit , much less given an opportunity to be heard. All of thes e matters must be remedied by a second remand to the trial court , with instruction to copy Montgomery on all filing s in a timely fashion and give Montgomery the opportunity to respond. Further, an evidentiary hearing must be

conducted. Prayer WHEREFORE, PREMISES CONSIDERED, Applicant prays that this court will reject the order denying relief and set this case for a hearing wherein the live testimony of the witnesses may be presented.

Respectfully submitted,

___ /s/ Bruce Anton

____________ ____ Bruce Anton State Bar of Texas I.D. No. 012747008 SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road , Suite 250 Dallas, Texas 75201 214

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- 8100 214

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- fax Attorney for Applicant Montgomery

CERTIFICATE OF SERVICEI hereby certify that a true and correct copy of the above and foregoing Objections to Findings of Fact and Conclusions of Law was mailed United States Mail, Proper Postage Affixed, to Luke M. Inman, District Attorney, 100th Judicial District Attorney's Office, 800 West Avenue, Box 1, Wellington, Texas 79095 on September 9, 2015.

___ /s/ Bruce Anton

____________ ____ Bruce Anton