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WR-83,575-01

W401-80045-08-HC

EX PARTE § IN THE COURT OF

§

§ CRIMINAL APPEALS

§

CHARLES ATTERBURY § OF TEXAS

OBJECTIONS TO THE TRIAL COURT’S ORDER ON 

ATTERBURY’S APPLICATION FOR A WRIT OF HABEAS CORPUS

In Atterbury’s Application for a Writ of Habeas Corpus, he argued that (1) his 

guilty pleas were not entered knowingly, voluntarily, or intelligently, because his 

counsel failed to inform him he had a defense to the charges; (2) his counsel was 

ineffective in failing to investigate and learn as much; and (3) his counsel was 

ineffective in failing to file a motion to recuse the biased judge who presided over 

the State’s motion to revoke Atterbury’s probation. (Memo at 2-3).

In recommending to this Court that it deny Atterbury’s application, the

district court found (1 & 2) counsel did inform Atterbury that the State had a “weak 

case”; and (3) there is no evidence the judge was in fact biased. (Order at 2-4). But 

characterizing the State’s case as weak is not the same as alerting Atterbury he had 

a total defense to all charges. And the record clearly reflects the trial court’s biases.

Accordingly, Atterbury objects to the district court’s order.

I. A “weak case” is not “no case”

a. Counsel’s advice was incorrect

As to Atterbury’s claims that his guilty pleas were not entered knowingly, 

voluntarily, or intelligently because his counsel failed to inform him he had a 

WR-83,575-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/16/2015 3:44:28 PM

Accepted 7/17/2015 8:11:54 AM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 7/17/2015 ABEL ACOSTA, CLERK 
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defense to the charges, and that his counsel was ineffective in failing to investigate 

and learn as much, the district court initially noted, bizarrely, that “Applicant has 

not specified what his defense to the allegations was.” (Order at 2). But the 

remainder of the court’s order very clearly indicates it understood the defense: that 

the State could not use Atterbury’s confession, alone, to convict him. See (Order at 

1-3).

Indeed, that is the failure Atterbury faulted. The court dismissed it, however, 

because “[c]ounsel did advise Applicant that the State’s case was weak.” (Order at 

2). Advising that the State’s case is weak is entirely different from advising that the 

State’s case is hopeless, though. And that was just the case here. As noted in 

Atterbury’s original memorandum, the only evidence of any offense came from 

Atterbury’s own statement. (Memo at 10). And an extra-judicial confession is 

insufficient to support a conviction absent corroboration. See, e.g., Chambers v. 

State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993); Self v. State, 513 S.W.2d 832, 837 

(Tex. Crim. App. 1974). The district court notes that counsel believed evidence of 

the complainant’s “bed wetting and sexual behavior” could have been “used to 

corroborate Applicant’s confession.” (Order at 1). But under the corpus delicti rule, 

there must be “some evidence [ ] outside of the extra-judicial confession which, 

considered alone or in connection with the confession, shows that the crime actually 

occurred.” Salazar v. State, 86 S.W.3d 640, 645 (Tex.Crim.App.2002) (emphasis 

added). And the complainant’s bed-wetting and sexual behavior is hardly evidence 

of as much; it could be evidence of myriad things, or nothing. Counsel’s advice that 
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the State’s case was “weak,” then, entirely failed to convey the reality: the State’s 

case was non-existent.

For the same reason, the district court’s secondary conclusion—that

Atterbury also failed to prove “by a preponderance of the evidence that he would not 

have pleaded guilty but for counsel’s advice”—is meritless. (Order at 2). As to that 

conclusion, the district court noted Atterbury insisted on pleading guilty despite 

counsel’s advice that the State’s case was weak. (Order at 2-3). But, again, that is 

just the point—Atterbury insisted upon as much because counsel informed him only 

that the State’s case was weak, not that it was non-existent. Accordingly, because 

the entirety of the district court’s conclusions as to Atterbury’s first and second 

grounds are without merit, for all those reasons urged in his original application 

and memo Atterbury respectfully requests this Court to reject the district court’s 

recommendation and to grant him relief.

b. Even if counsel’s advice was correct, whether he in fact 

advised as much can only be determined after a hearing

Even if this Court were to find that counsel’s advice were close enough to the 

truth, though, it should not, as the district court did, reject Atterbury’s application 

based on counsel’s affidavit alone. For, whether counsel in fact informed Atterbury 

that the State had a weak case is a credibility determination, presenting an “in 

court” issue for the finder of fact. 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. 
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This Court has recognized this before. 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 crossexamination.” Id. at 842 (concurring opinion). Similarly, Judge Cochran explained 

for the Court in Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004):

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 wellsuited for resolving disputed facts.

Id. at 210 (footnotes omitted).

Accordingly, in this case, the district court should not have decided that 

Atterbury’s attorney’s affidavit resolved all the factual issues. Nor should the 

court’s decision have been based merely on the fact that counsel was “well known to 

the court.” See (Order at 1). 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 United States Court of Appeals 

for the Eleventh Circuit stated:

It is perfectly legitimate for the district court to find, based on all the 

evidence in the record, that a defendant’s testimony 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 
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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.

Valid judgments about credibility cannot be made from a review of a paper 

record alone. Thus, even if counsel’s advice was accurate, the district court should

have ordered a live evidentiary hearing to resolve whether he in fact advised 

Atterbury of as much. See, 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). Accordingly, on this basis, too, 

Atterbury objects to the district court’s order and requests this Court to reject its 

recommendation.

II. The record clearly reflects the trial court’s biases.

As to Atterbury’s third claim of ineffective assistance of counsel, the district 

court concluded there is no evidence the judge was in fact biased. (Order at 4). As to 
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this ground, Atterbury relies on his arguments in his original memorandum to show 

that his counsel was ineffective in failing to file a motion to recuse the biased judge 

who presided over the State’s motion to revoke Atterbury’s probation. Thus, as to 

this ground, as well, Atterbury objects to the district court’s order and requests this 

Court to reject its recommendation.

III. Conclusion

For these reasons, and all those urged in Atterbury’s original memorandum 

in support of his application for a writ of habeas corpus, and in his reply to the 

State’s response to that memorandum, Atterbury objects to the district court’s 

order, respectfully requests this Court to reject the district court’s recommendation, 

and to find that that his convictions for aggravated sexual assault of a child and 

indecency with a child illegally confine and restrain him of his liberty. See TEX. PEN.

CODE §§ 21.11 & 22.021. His convictions were had only upon an involuntary plea 

and the ineffective assistance of his counsel. This Court should thus issue the Writ 

of Habeas Corpus,, set aside his convictions, and remand the case for a new trial. 

See, e.g., Strickland v. Washington, 466 U.S. 668, 694, (1984).

Respectfully submitted,

/s/ Bruce Anton

BRUCE ANTON

Bar Card No. 01274700

ba@sualaw.com
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/s/ Brett Ordiway

BRETT ORDIWAY

State Bar No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road, Suite 250

Dallas, Texas 75201

(214)-468-8100 (office)

(214)-468-8104 (fax)

Counsel for Applicant
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Certificate of Service

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

Objections to the Trial Court’s Order on Atterbury’s Application for a Writ of 

Habeas Corpus was mailed to the Collin County District Attorney’s Office and the 

401st Judicial District Court of Collin County on July 16, 2015.

/s/ Bruce Anton

Bruce Anton