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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

NOW COMES Shelton Wade Montgomery, Applicant, and files 

these Objections to the Trial Court’s Order Denying Relief, filed August 

31, 2015. In support thereof, Montgomery would show the following:

I. The trial court denied Montgomery due process of law in 

ruling on his writ application without notifying him of his 

trial 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, the 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

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 9/10/2015 ABEL ACOSTA, CLERK 
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any documents were filed. Counsel’s staff was repeatedly told 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 

the trial court immediately denied the writ, without providing undersigned counsel either the opportunity to file his own proposed findings or 

to respond to the affidavit. 

While article 11.07 of the Code of Criminal Procedure grants trial

courts 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 afforded 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 court to rule on his application
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In a case that turns on issues of credibility, it is inappropriate to 

resolve controverted facts without 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 the “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 court should not decide that Montgomery’s attorney’s affidavit resolves all the factual issues in this case. 

Nor should the court’s decision be based merely on the fact that the court 

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 testimony 
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about his participation in a drug scheme is not credible. The 

magistrate judge here, however, based the decision on the fact 

that the defendant’s allegations were unsubstantiated and incorrectly found as a matter of law that defendant could not 

carry his burden without presenting some 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 simply 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 specific 

findings 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 a 

credibility 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," which 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.
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Indeed, the federal courts have routinely favored live witness testimony. This is because an 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 occasion to observe 

Martin 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’ manner 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 the demeanor of 

the witnesses). 

Valid judgments about credibility cannot be made from a review of 

a paper record alone. Thus, even if the court were to find that counsel’s 

alleged actions were sufficient, the court should have ordered a live evidentiary hearing to resolve whether counsel in fact behaved as such. See, 
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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 law. Montgomery has 

never been alerted to any such document being entered. Thus, the trial 

court either ignored this Court’s order and denied Montgomery’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, this 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 testimony, the trial court simply denied the writ
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without meaningful consideration. The court denied Montgomery any opportunity to respond to his trial counsel’s affidavit and entered a oneparagraph order. Further, the court failed to follow this Court’s instructions to enter findings of fact and conclusions of law. 

Montgomery has never even been provided with his trial counsel’s

affidavit, much less given an opportunity to be heard. All of these matters 

must be remedied by a second remand to the trial court, with instruction

to copy Montgomery on all filings 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. 01274700
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SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road, Suite 250

Dallas, Texas 75201

214-468-8100

214-468-8104 - fax

Attorney for Applicant Montgomery

CERTIFICATE OF SERVICE

I 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