IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-90,447-01

EX PARTE JAMAKA RAY COTTINGHAM, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 744984-A IN THE 176 DISTRICT COURT

TH

FROM HARRIS COUNTY

NEWELL, J., filed a dissenting opinion in which RICHARSDON

and WALKER JJ., joined.

Applicant was convicted of aggravated robbery. According to the

State’s case, Applicant and another man robbed Kenneth Brown while Mr.

Brown was talking on a pay phone. Applicant presented an alibi defense.

Police reports—turned over in pre-trial discovery—reflected that the

getaway car was found and that the police were able to lift latent prints

containing “sufficient characteristics to effect an identification.”

Applicant’s trial attorney never investigated those prints.

In his application for post-conviction relief, Applicant alleges, among
Cottingham Dissent — 2

other things, that in this case he did not receive effective assistance of

counsel because trial counsel failed to conduct an adequate investigation

into the case prior to trial. Subsequent to trial, the fingerprints have

been analyzed and linked to two different men who were part of a carjacking ring that Applicant did not belong to. The analysis excluded

Applicant.

The State, the defense, and the habeas court all agree that

Appellant is entitled to a new trial based at least upon trial counsel’s

failure to investigate this key identification evidence. I cannot see any

strategic justification for counsel’s failure. And while I appreciate the

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Court’s concern about the conflicting evidence regarding Applicant’s

involvement in the crime, I see no reason to remand for additional

credibility findings that the trial court has already implicitly made. And

even if the trial court makes an explicit credibility finding regarding the

alternative perpetrator’s unsworn statements, trial counsel’s failure to

investigate the fingerprint evidence and uncover this new information

undermines confidence in the outcome of the proceedings.

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See, e.g., Wiggins v. Smith, 539 U.S. 510, 521–22 (2003) (explaining that strategic

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choices made after a less than complete investigation are reasonable to the extent that

reasonable professional judgments support the limitations of the investigation).

See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (“[A]ppellant must

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show a reasonable probability that, but for counsel’s unprofessional errors, the result of the
Cottingham Dissent — 3

Rather than grant relief on this ground, the Court chooses to

remand the case for further findings related to Applicant’s ineffective

assistance claim. Just as in the Court’s recent remand in Ex parte Grant,

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the remand order in this case makes clear the Court’s dissatisfaction with

the State’s post-conviction advocacy. It is not this Court’s job to step in

when it thinks the State isn’t up to the task. The habeas court’s findings

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and conclusions are supported by the record. We should defer to them

and grant relief.

With these thoughts, I respectfully dissent.

Filed: October 7, 2020

Publish

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”).

Ex parte Grant, WR-84,021-04, 2020 WL 3635868, at *1 (Tex. Crim. App. July 1,

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2020) (not designated for publication) (remanding for more fact finding after the trial court

adopted Applicant’s and the State’s proposed findings of fact and conclusions of law

recommending that we grant relief).

See, e.g., Ex parte McEwen, 602 S.W.3d 586, 587 (Tex. Crim. App. 2020) (Newell, J.,

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concurring) (noting that the Court should trust the State’s decision on whether to raise a

particular issue or make a particular argument).