EX PARTE 

IN THE COURT OF CRIMINAL APPEALS 

FOR THE STATE OF TEXAS 

AUSTIN, TEXAS 

NO. WR-81, 718-01 

DAVID LEN MOULTON 

§ 

§ 

§ 

§ 

§ 

APPLICANT'S REQUEST FOR REMAND 

FOR EVIDENTIARY HEARING 

TO THE HONORABLE JUDGES OF SAID COURT: 

NOW COMES the Applicant, DAVID LEN MOUL TON, and submits this Request for 

Remand for Evidentiary Hearing and would show the following: 

I. 

On December 11, 2014, the Court of Criminal Appeals issued an order remanding 

this case to the trial court to engage in fact gathering. The court's order stated that, "the 

trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, §3(d)." The 

Court order also stated: 

"This application will be held in abeyance until the trial court has resolved the 

fact issues. The issues shall be resolved within 90 days of this order. A 

supplemental transcript containing all affidavits and interrogatories or the 

transcription of the court reporter's notes from any hearing or deposition, 

along with the trial court's supplemental findings of fact and conclusions of 

law, shall be forwarded to this Court within 120 days of the date of this 

order." 

11. 

Following the issuance of this order, Applicant filed, in the trial court, "Applicant's 

Request For An Evidentiary Hearing" (copy attached). In response to this motion, the trial 

court, on January 23, 2014, issued an "Order Denying Applicant's Request For An 

Applicant's Request for Remand for Evidentiary Hearing - Page 1 

WR-81,718-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/20/2015 2:49:04 PM

Accepted 4/20/2015 4:33:27 PM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 4/20/2015 ABEL ACOSTA, CLERK 
Evidentiary Hearing and Order on Attorney Affidavit." In this order, the trial court directed 

that trial counsel submit an affidavit in response to the allegations raised in the writ 

application. Trial counsel's affidavit was due within 30 days of the trial court's order, which 

made the affidavit due February 22, 2015. 

111. 

As of this date, nothing further has occurred on this case. Trial counsel has not filed 

an affidavit, the trial court has not gathered any evidence or made the findings ordered by 

the Court of Criminal Appeals. The deadline for all of these actions has now passed. 

IV. 

Based on the facts set out herein, Applicant requests that the Court issue an order 

directing that the district court hold an full evidentiary hearing on this writ application. 

WHEREFORE, PREMISES CONSIDERED, Applicant requests thatthe Court issue 

this order. 

Respectfully submitted, 

Isl Garv A. Udashen 

GARY A. UDASHEN 

Bar Card No. 20369590 

gau@sualaw.com 

SORRELS, UDASHEN & ANTON 

2311 Cedar Springs Road 

Suite 250 

Dallas, Texas 75201 

214-468-8100 

214-468-8104 fax 

Attorney for Applicant 

Applicant's Request for Remand for Evidentiary Hearing - Page 2 
CERTIFICATE OF SERVICE 

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

Applicant's Request For Remand for Evidentiary Hearing was forwarded to the Cass 

County District Attorney's Office, P. 0. Box 839, Linden, Texas 75563, on this the 20th day 

of April, 2015. 

Isl Garv A. Udashen 

GARY A. UDASHEN 

Applicant's Request for Remand for Evidentiary Hearing - Page 3 
WRIT NO. 2008F00339-A 

TRIAL COURT NO. 2008F00339 

. EXPARTE 

DAVID LEN MOULTON 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

5TH JUDICIAL DISTRICT 

CASS COUNTY TEXAS 

APPLICANT'S REQUEST FOR AN EVIDENTIARY HEARING 

TO THE HONORABLE JUDGES OF SAID COURT: 

NOW COMES the Applicant, DA YID LEN MOULTON, and submits this request 

for an evidentiary hearing on this Application and would show the Court the following: 

I. 

On December 17, 2014, the Court of Criminal Appeals ordered this court to gather 

additional facts in order to resolve the factual issues raised in this case. A copy of the 

. Court's order is attached. In the court's order, the trial court is authorized to use any means 

set out in Tex. Code Crim. Proc. art. 11.07, Sect. 3(d) to resolve these factual issues. One 

of the means set out in this provision is to hold an evidentiary hearing. Applicant requests 

that the court set this matter for a hearing. 

II. 

A live evidentiary hearing is the best way for the court to resolve disputed factual 

issues. This was recognized as true by Presiding Judge Keller in her concurring opinion in 

. Ex Parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005). In Byars, Judge Keller stated: 

"The Confrontation Clause reflects a judgment about how the reliability of 

testimony can best be detennined. The Clause commands that reliability be 

assessed by testing in the crucible of cross-examination. That judgment is 

Applicant's Request For Au Evidentiary Hearing - Page 1 
valid regardless of the circumstance that the Confrontation Clause does not 

apply to the State. 

. . . adversarial testing is the constitutionally prescribed method of assessing 

reliability, and it 'beats and bolts out the Truth much better' than the procedure 

used here." 

For these reasons, Applicant prays that the court will set this Application for an 

evidentiary hearing. 

Respectfully submitted, 

.l~,.0· .. / 

.. o1.:/7 (/ . /7' 4·/ -4.~ /{/ L_./~7 / - GARY A. UDASHEN 

Bar Card No. 20369590 ~-

SORRELS, UDASHEN & ANTON 

2311 Cedar Springs Road 

Suite 250 

Dallas, Texas 75201 

214-468-8100 

214-468-8104 fax 

Attorney for Applicant 

CERTIFICATE OF SERVICE 

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

Applicant's Request for An Evidentiary Hearing was mailed to the Cass County District 

Attorney's Office, P. 0. Box 839, Linden, Texas 75563, on this the "?('"--day of January, 

2015. 

Applicant's Request For An Evidentiary Hearing - Page 2 
IN Ti~IE COURT Of CR!MiNAl APPEALS 

Of TEXAS 

NO. WR-81,718-01 

EX PARTE DAVID LEN MOULTON, Applicant 

ON APPLICATION FORA WRIT OF HABEAS CORPUS 

CAUSE NO. 2008Jll00339-A IN THE STH DISTRICT COURT 

FROM CASS COUNTY 

Per curiam. 

ORDER 

Pursuant to the provisions of Article l 1.07 of the Texas Code of Criminal Procedure, the 

clerk of the trial court transmitted to this Court fuis application for a writ of habeas corpus. Ex parte 

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and 

sentenced to sixty years' imp1isomuent. The Sixth Conrt of Appeals reversed the judgment of 

conviction. Moulton v. State, 360 S.W.3d 540 (Tex. App.-Texarkana 2011). We reversed the 

judgment of the court of appeals. Moulton v. State, 395 S.W.3d 804 (Tex. C1im. App. 2013). 

Applicant now contends, among other things, that trial counsel failed to object on 

Confrontation Clause grounds when affidavits the medical examiner relied on were read to the jury, 

request a limitiag iastmction after the affidavits were read to the jmy, and request a continuance after 
2 

the State disclosed the affidavits during trial. The trial court made findings of fact and conclusions 

oflaw and recommended that we deny relief. We believe that the record is no adequate to resolve 

Applicant's claims. 

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 

466 U.S. 668 (1984); Ex parte Patterson, 993 S,W.2d 114, 115 (Tex. Crim. App. 1999). ill these 

circumstances, additional facts are needed. As we held in Ex parteRodriguez, 334 S.W.2d 294, 294 

(Tex. Crim. App. 1960), the trial court is the approp1iate forum for findings of fact. The trial court 

shall order trial counsel to respond to the above claims. The tiial court may use any means set out 

in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). 

Applicant appears to be represented by counsel. Ifhe is not and the trial court elects to hold 

a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to 

be represented by counsel, the trial comt shall appoint an attorney to represent him at the hea1ing. 

Tux. CODE CRIM. PROC. mt. 26.04. 

After reviewing counsel's response, the trial co mi shall determine whether counsel's conduct 

was deficient and Applicant was prejudiced. The trial court shall also make any other fmdings of 

fact and conclusions oflaw that it deems relevant and approp1iate to the disposition of Applicant's 

clainl for habeas corpus relief. 

This application will he held in abeyance until the trial comihas resolved the fact issues. The 

issues shall be resolved within 90 days of this order. A supplemental ti·anscript containing all 

affidavits and iutenogatories or the transcription of the court reporter's notes from any hea1ing or 

deposition, along with the trial comi's supplemental fmdings of fact and conclusions of law, shall 

be f01warded to this Court within 120 days of the date of this order. Any extensions of time shall 
be obtained from this Court. 

Filed: December 17, 2014 

Do uot publish 

3 
CAUSE N0.2008F00339-A 

EXPARTE 

FiLEJ Fl)[\ RECORD 

CA r·<' ,-•. -,•·"T'' .,.[.X'S ' . .:h) L_,f..;\J{ •• ;, ! -_ ,,. .. 

JAHlf. i',LE<:RTSOM O!STRiCT CLERK 

DAVID LEN MOUL TON 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

BY---

CASS COUNTY, TEXAS 

DEPUTY 

ORDER DENYING APPLICANT'S REQUEST FOR AN EVIDENTIARY HEARING 

AND 

ORDER ON ATTORNEY AFFIDAVIT 

Following a jury trial, Applicant was convicted of murder and sentenced to sixty years in 

the Texas Department of Criminal Justice - Institutional Division. The Sixth Court of Appeals 

reversed the judgment of conviction. Moulton v. State, 360 S.W.3d 540 (Tex. App. - Texarkana 

201 !). However, the Texas Court of Criminal Appeals reversed the judgment of the appellate 

court. Moulton v. State, 395 S.W.3d 804 (Tex. Crim. App. 2013). 

Following the entry of the Court of Criminal Appeals' judgment, Applicant filed an 

Application for Writ of Habeas Corpus. In his application, Applicant argued, among other 

things, that he was denied effective assistance of counsel. Specifically, Applicant argued that his 

trial counsel was ineffective because he: (l) failed to object on Confrontation Clause grounds 

when affidavits the medical examiner relied upon were read to the jury; (2) failed to request a 

limiting instruction after the affidavits were read to the jury; and (3) failed to request a 

continuance after the State disclosed the affidavits during trial. 

In response to Applicant's application, the trial court made findings of fact and 

conclusions of law recommending that the Court of Criminal Appeals deny Applicant's 

requested relief. On or about December 17, 2014, the Court of Criminal Appeals issued an order 

stating that it believed the record was not adequate to resolve Applicant's ineffective assistance 
of counsel claims. To obtain habeas corpus relief for ineffective assistance of counsel under the 

standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), an applicant must show 

that counsel's performance "was deficient and that a probability exists, sufficient to undermine 

our confidence in the result, that the outcome would have been different but for counsel's 

deficient performance." Ex parte While, 160 S.W.3d 46, 49 (Tex. Crim. App. 2004). Counsel's 

performance is deficient if it -is, shown to have fallen below ·an· objective. standard of 

reasonableness. Id. at 51; Strickland, 466 U.S. at 687-88. 

In order to assist the trial court in meeting its duties, counsel must be permitted to address 

the allegations set forth above. Pursuant to the foregoing, it is hereby 

ORDERED that counsel for Applicant herein shall submit an affidavit which discusses 

the foregoing allegations raised by Applicant concerning his representation at trial. It is further 

ORDERED that the Clerk of the Court shall furnish a copy of the Applicant's 

application to counsel, who shall respond to this Order within thirty (30) days from the date of 

the entry of this Order. It is further 

ORDERED that Applicant's Motion for an Evidentiary Hearing is DENIED. Upon 

receipt and review of trial counsel's affidavit, the trial court shall determine if an evidentiary 

hearing is necessary. In the event the trial court detennines that a hearing is necessary, the 

appropriate notices will be filed and sent to all parties in a timely manner. 

SO ORDERED this z;~/-b day of January, 2015. 

D!STRlCT JUDGE