WR -78,439- 02

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



### EX PARTE DAMON WEST, Applicant

On Application for a Writ of Habeas Corpus in the Criminal District Court No. 7 of Dallas County, Texas

Cause No. F09- 00248 -Y



### STATE’S BRIEF

Counsel of Record: Susan Hawk Jaclyn O’Connor Lambert Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24049262 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB- 19

Dallas, Texas 75207- 4399 (214) 653- 3625 (214) 653-3643 Fax joconnor@dallascounty.org Attorneys for the State of Texas WR-78,439-02 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 5/15/2015 5:09:45 PM Accepted 5/19/2015 2:48:10 PM

ABEL ACOSTA CLERK2 TABLE OF CONTENTS INDEX OF AUTHORITIES

................................ ................................ ......................... 3 STATEMENT OF THE CASE

................................ ................................ ...................... 5 SUMMARY OF ARGUMENT

................................ ................................ .................... 8 ARGUMENT

................................ ................................ ................................ ............ 8
D EFICIENCY P RONG ................................ ................................ ............................... 11
P REJUDICE P RONG ................................ ................................ ................................ 19
PRAYER

................................ ................................ ................................ ................ 24 CERTIFICATE OF COMPLIANCE

................................ ................................ ............. 24 CERTIFICATE OF SERVICE

................................ ................................ ...................... 253 INDEX OF AUTHORITIES
Cas es Baber v. State , 931 S.W.2d 359 (Tex. App.

— Amarillo 1996, pet. ref’d)

.............................. 15 Burnett v. State , 642 S.W.2d 765 (Tex. Crim. App. 1982)

................................ ...................... 12 Ex parte Jimenez , 364 S.W.3d 866 (Tex. Crim. App. 2012)

................................ ................... 9, 10 Ex parte Miller

, 330 S.W.3d 610 (Tex. Crim. App. 2009)

................................ ............. 9 , 15, 19 Frangias v. State , 392 S.W.3d 642 (Tex. Cim. App. 2013)

................................ .................... 9, 15 Huerta v. State , 359 S.W.3d 887 (Tex. App.

— Houston [14th Dist.] 2012, no pet.)

.............. 15 Jackson v. State , 766 S.W.2d 504 (Tex. Crim. App. 1985)

................................ ...................... 12 King v. State , 649 S.W.2d 42 (Tex. Crim. App. 1983)

................................ ........................ 16 Miller v. Lynaugh , 810 F.2d 1403 (5th Cir. 1987)

................................ ................................ ..... 19 Strickland v. Washington , 466 U.S. 668 (1984)

................................ ................................ ........... 9, 16, 20 Thomas v. State , 886 S.W.2d 388 (Tex. App.

— Houston [1st Dist.] 1994, pet. ref'd)

.............. 15 Turner v. State , 932 S.W.2d 622 (Tex. App.

— Houston [14th Dist.] 1996, no pet.)

.............. 14 Varughese v. State , 892 S.W.2d 186 (Tex. App.

— Fort Worth 1994, pet. ref'd)

.......................... 154

Weisinger v. State , 775 S.W.2d 424 (Tex. App.

— Houston *14th Dist.+ 1989, pet. ref’d)

........... 19 West v. State , No. 05

- 09

- 00577

- CR, 2011 Tex. App. LEXIS 1649 (Tex. App.

— Dallas Mar. 8, 2011, pet. ref’d) (not designated for publication)

................................ ........ 5 Wilkerson v. State , 726 S.W.2d 542 (Tex. Crim. App. 1986)

................................ ...................... 165

TO THE HONORABLE COURT OF CRIMINAL APPEALS: The State of Texas respectfully submits this brief as directed by this Court’s order dated March 18, 2015.
STATEMENT OF THE CASE Applicant was charged with engaging in organized criminal activity by establishing, maintaining, and participating in a combination and the profits of a combination which committed burglary of a habitation

. See Tex. Penal Code Ann. § 71.02(a) (West Supp. 2010). On May 18, 2009, a jury found applicant guilty as charged and sentenced him to sixty

- five years’ imprisonment. Applic ant’s judgment and sentence were affirmed on direct appeal by the Fifth District Court of Appeals. See West v. State , No. 05

- 09

- 00577

- CR, 2011 Tex. App. LEXIS 1649 (Tex. App.

— Dallas Mar. 8, 2011, pet. ref’d) ( not designated for publication)

. Applicant filed an initial application for writ of habeas corpus on July 19,
2012. The trial judge, the Honorable Michael Snipes, entered an Order Designating Issues on August 8, 2012, and appointed writ master April Smith to assist the court in resolving the designated issues. Smith obtained an affidavit from le ad trial counsel, Edwin Sigel, in response to applicant’s claims of ineffective6

assistance of counsel. (AWE 1). 1 On September 11, 2012, Judge Snipes signed the findings of fact and conclusions of law prepared by writ master Smith recommending that relief be denied. The writ record was received by this Court on September 24, 2012. Prior to disposition by this Court, applicant filed a motion to dismiss. This Court granted the motion and applicant’s initial habeas application was dism issed on April 3, 2013. Subsequently, applicant retained Chip Lewis as writ counsel. Lewis filed the instant habeas application on March 19, 2013 , alleging that applicant was denied the effective assistance of trial counsel

. Judge Snipes entered an Order Designating Issues on April 15, 2013, and again appointed writ master April Smith
to assist the court in resolving the designated issues. A live evidentiary hearing was held on September 9, 2013 , and testimony was presented from trial counsel Edwin Sigel a nd Karen Lambert

. At the conclusion of the hearing, writ master Smith indicated to the parties that she intended to recommend the gra n ting of relief but was not sure if Judge Snipes would agree with her recommendation. Following the preparation of the hearing transcript, both parties filed proposed findings of fact and conclusions of law for the trial court to consider. On March

1 This affidavit is attached as an exhibit to the instant habeas application. The State will refer to applicant’s writ exhibits as “AWE

_ .”7

26, 2013, Judge Snipes signed the State’s proposed findings recommending that relief be denied. On April 23, 2014, applicant filed a Motion f or Recusal of Trial Court Judge, alleging that Judge Snipes was biased against him and signed the State’s proposed findings prior to reviewing the writ hearing record or proposed findings from writ master Smith. 2 On May 12, 2014, after the writ application had already been forwarded to this Court, Judge Snipes voluntarily recused himself from the case. On June 11, 2014, this Court remanded the application to allow the Presiding Judge of the First Administrative Judicial Region to assign th e case to another judge

. Subsequently, the Honorable Jeanine Howard of Criminal District Court No.
6 was assigned to preside over the case. On July 14, 2014, Judge Howard signed writ master Smith’s proposed findings of fact and conclusions of law recommending that relief be granted. On March 18, 2015, this Court ordered that the instant application be filed and set for submission and that the parties brief the following issues: (1) whether

2 On April 23, 2014, applicant also filed a Petition for a Writ of Mand amus against writ master Smith asking this Court to order her to transmit to the trial court all papers relating to applicant’s writ, including “findings, conclusions, orders, recommendation s, or other actions.” Applicant’s motion for leave to file the petition was denied without written order on June 18, 2014.8

counsel rendered i neffective assistance of counsel, and (2) if so, whether there is a reasonable probability that, but for counsel’s errors, the sentencing jury would have reached a more favorable penalty

- phase verdict.
SUMMARY OF ARGUMENT Looking at the totality of counsel’s representation, a pplicant has failed to demonstrate that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms so as to render him ineffective . Furthermore, applicant has not shown tha t, but for counsel’s alleged errors, the sentencing jury would have reached a more favorable verdict. As such, he has failed to prove by a preponderance of the evidence that he was denied the effective assistance of counsel.
ARGUMENT In the instant habeas application, applicant alleges six grounds of ineffective assistance of trial counsel. See Writ Application at 6

- 6e

. Although applicant alleges deficiencies in both the guilt

- innocence and punishment stages of trial, he frames his claim as ineffective assistance of counsel at the punishment stage of trial, and he requests relief in the form of a new punishment hearing.9 A PPLICABLE L AW A defendant has a Sixth Amendment right to effective assistance of counsel. U.S. Const. amend. VI

. An applicant asserting a claim of ineffective assistance of counsel has the burden to prove, by a preponderance of the evidence, that (1)

co unsel’ s performance was deficient, falling below an “objective standard o f reasonableness,” and (2) the deficient performance prejudiced the defense such that “there is a reasonable pr obability that, but for counsel’ s unprofessional errors, the result of t he proceeding would have been different.” Strickland v. Washington , 466 U.S. 668, 694 (1984) ; Ex parte Jimenez , 364 S.W.3d 866, 883 (Tex. Crim. App. 2012)

. An accused is not entitled to representation that is wholly errorless. Frangias v. State , 392 S.W.3d 642, 653 (Tex. Cim. App. 2013) . Reviewing courts indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable assistance, and that the challenged action might be considered sound trial strategy. Strickland , 466 U.S. at 689. The mere fact that another attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel. Ex parte Miller , 330 S.W.3d 610, 616 (Tex. Crim. App. 2009) .The Strickland test is judged by the totality of th e representation, not10

by counsel’s isolated acts or omissions, and the test is applied from the viewpoint of an attorney at the time he acted, not through 20/20 hindsight. Jime nez , 364 S.W.3d at 883.
T HE D EFENSE T EAM Applicant was represented at trial by lead counsel Edwin Sigel and co

counsel Karen Lambert . Sigel was the first attorney retained by applicant’s family sh ortly after applicant’s arrest . (WRR: 6, 76). 3 Sigel has been licensed to practice law in the State of Texas since 1959. (WRR: 74). Sigel started his career in criminal law and worked for the United States Department of Justice, for a former Assistant Unit ed States Attorney, and as a federal defense attorney. (WRR: 74

- 75). He worked in the banking and securities industry for some time, but then returned to criminal defense work and has been practicing primarily criminal law since that time. (WRR: 74

- 76). He has handled a wide variety of cases and had hundreds of jury trials during his career. (WRR: 74

- 76). After Sigel spoke with the prosecutor and saw the large amount of evidence involved in the case, he requested and obtained a court

- appointed investigator, Cliff Jenkins, to assist him in reviewing discovery, investigating, and preparing

3 The State will refer to the reporter’s record from the writ hearing as “WRR” and the reporter’ s record from the trial as “RR_. ”11

applicant’s case for trial. (WRR: 82

- 83). Jenkins was an experienced investigator and did not need much direction from Sigel on how to perform his role on the defense team. (WRR: 83). He spent many hours examining the voluminous discovery tendered to the defense. (WRR: 83). Because Jenkins was younger than Sigel, he had better success in communicating with applicant and of ten spoke with appl icant about the case. (WRR: 84)

. A pproximately six weeks b efore trial, Sigel hired Karen L ambert to sit as co

counsel and assist him in ap plicant’s trial. (WRR: 93 , 109 ; AWE 3 ). Lambert has been licensed to practice law in the State of Texas since 1983. (AWE 3). Lambert worked as an assistant district attorney for ten years and then went into private practice as a criminal defense attorney. ( WRR: 102; AWE 3). She has handled thousands of criminal cases and has tried over 300 criminal ca ses. (AWE 3).
D EFICIENCY P RONG (1) Advice Regarding Plea In ground 1 of his writ application, a pplicant contends that counsel was ineffective for failing to investigate and explain to applicant the option and advantages of pleading guilty to the jury. See Writ Application at 6

.12

Sigel’s testimony at the writ hearing reflects that, after he was reta ined by applicant’s family, he met with applicant and advised him of his rights, including his rights to remain silent, to plead guilty or not guilty, and to have a jury trial. (WRR: 77

- 78, 81

- 82). The p retrial discovery turned over to the defense demonstr ated that the State had overwhelming evidence linking applicant to the string of burglaries. Applicant refused the State’s plea bargain offer of forty years.
A pplicant told the defense team th at he did not believe that the State could prove that he was gui lty of engaging in organized criminal activity (“EOCA”) as charged. (WRR: 79

- 80, 142

- 43; AWE 3). In light of the State’s evidence, Jenkins, who had developed a close relationship with applicant, strongly urged him to enter a “slow plea” of guilty before the jury. (WRR: 84

- 85). However, a ccording to Sigel, applicant “didn’t want to plead guilty to anything.” (WRR: 81

- 82). The decision of whether to plead guilty belongs solely to the defendant. See Jackson v. State , 766 S.W.2d 5 04, 508 (Tex. Crim. App. 1985) ; Burnett v. State , 642 S.W.2d 765, 768 (Tex. Crim. App. 1982) (stating the criminal defense lawyer controls the progress of a case while the client confronts only three personal decisions: his plea to the charge, whether to be tried by a jury and whether to testify in his own behalf). Here, the reco rd reflects that counsel advised applicant13

of his rights and the option of pleading guilty. T he strategy pursued by the defense

– to enter a plea of not guilty and make the State prove beyond a reasonable doubt that applicant was guilty of EOCA

– was done at applicant’s behest after being advised of his rights. As such, applicant has not shown counsel was deficient in this regard. (2) Trial performance In grounds 2

- 5, applicant complains about counsel’s strategy and trial performance. Specifically, he contends that counsel was ineffective for failing to object to certain portions of Dete ctive Gilbert Travis' testimony , for eliciting harmful and aggravating testimony from witnesses that the State did not elicit , and for employing and advancing numero us unreasonable trial strategies in front of the jury

. See Writ Application at 6a

- 6c

. Sigel testified at the writ hearing that, based on the state of the evidence against applicant, he believed the best strategy at trial was “the truth defense.” Counsel pu rsued this strategy throughout the trial by being open and honest with the jury and not hiding from any evidence, good or bad. Counsel hoped that, by doing so, he could gain the jury’s trust and that they would not be surprised by later hearing negative ev idence at punishment. (WRR: 79

- 80, 85

- 86, 95).14

Additionally, during the punishment phase , counsel’s strategy was to inform the jury that applicant was a person from a good family, was a productive member of society when he was not under the influence of d rugs, and could be rehabilitated. Consistent with this strategy, counsel advised applicant to take the stand, accept responsibility for his actions, and apologize for the harm he caused the numerous victims he burglarized. C ounsel repeatedly explained to a pplicant that his testimony was necessary to give the jury knowledge of the true Damon West absent drugs. Sigel spoke with applicant’s family about his strategy for punishment and advised them of his opinion that applicant needed to testify. The family was in agreement and urged applicant to follow Sigel’s advice. The defense team crafted their mitigation defense with the understanding that applicant would testify. At some point, however, applicant decided not to t estify. This was a surprise to counsel. Sigel believed that applicant’s failure to testify was the primary reason their mitigation defense failed. (WRR: 80, 83

- 84, 86

- 8 9, 91

- 92, 149 ; AWE 1 ).
A plan to appea r open and honest with the jury

– such as the one counsel employed here

– co nstitutes reasonable strategy. See Turner v. State , 932 S.W.2d 622, 626 (Tex. App.

— Houston [14th Dist.] 1996, no pet.) ( noting that the desire to15

cooperate and be honest may be legitimate basis motivating counsel’s actions); Thomas v. State , 886 S.W.2d 388, 392 (Tex. App.

— Houston [1st Dist.] 1994, pet. ref'd) (trial counsel’s decision not to object to improper testimony can be a plausible trial strategy when counsel desires to create the appearance of being open and completely honest with regard to all questions); se e also , e.g., Huerta v. State , 359 S.W.3d 887, 894 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) ; Baber
v. State , 931 S.W.2d 359, 362 (Tex. App.
— Amarillo 1996, pet. ref’d) ; Varughese v.
State , 892 S.W.2d 186, 195

- 96 (Tex. App.

— Fort Worth 1994, pet. ref'd)

. The fact that writ counsel would have pursued a different strategy is insufficient to prove that counsel was ineffective. See Miller , 330 S.W.3d at 616 (t he mere fact that

a nother attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel ). Furthermore, even if counsel did commit some errors during applicant’s trial by failing to object to certain evidence or by eliciting some unfavorable information on cross

- examination, those isolated errors do not render counsel’s entire performance deficient. A n accused is not entitled to representation that is wholly errorl ess, and a reviewing court must look to the totality of the representation in gauging the adequacy of counsel’s performance. Frangias , 39216

S.W.3d at 653

. Trials are human events and, as such, they undeniably contain human error. Applica nt has failed to demonstrate that the totality of counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland , 466 U.S. at 689

. (3) Failure to Call Certain Witnesses Last, in ground 6 of his writ application, applicant contends that counsel was ineffective for failing to call Grayson West, Brandon West, and Danielle Delgadillo as defense witnesses during applicant’s trial

. See Writ Application at 6d

. In order to sustain a claim of ineffective assistance of counsel in failing to call witnesses, applicant must prove at a minimum that such witnesses were available and that defendant would have benefited from their testimony. Wilkerson v. State , 726 S.W.2d 542, 551 ( Tex. Crim. App. 1986) ; King v. State , 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)

. Daniell e Delgadillo was one of the punishment witnesses that was recommended by applicant’s family and was scheduled to testify on applicant’s behalf. However, due to trial scheduling delays and work commitments, she was unavailable to travel to Dallas at the time her testimony was needed. (AWE 22). Thus, the failure of counsel to present her as a witness was not due to his deficiency, but rather to her unavailability.17

With regard to applicant’s brothers Grayson and Brandon West, in addition to the bias they undoubtedly had and that would have been highlighted by the
State on cross - examination, there were other problems with presenting them as witnesses. Grayson previously suffered from a severe drug addiction like applicant and lived with applicant at v arious times in Dallas. (AWE20). Applicant used Grayson’s vehicle during his crime spree and, while in jail, solicited Grayson’s help in moving stolen property from one of his storage units. This evidence raised cred ibility issues with Grayson’s testimony, regardless of what he actually knew about applicant’s illegal activities. In addition, h is regular contact and close proximity to applicant during this time did not further counsel’s strategy at punishment of trying to distance applicant from his life of topless dancers, drug use, and crime in Dallas. Likewise, his knowledge and contact with applicant during this time would have subjected him to cross - examination on a variety of topics that would have b een detrimental to the defense. Brandon West had not lived near or had frequent close contact with applicant in the five years preceding the charged offense. (AWE 21). That put him in the same position as the many other punishment witnesses called by the defense who cared about the applicant and were able to offer positive testimony18

about the applicant prior to his drug addiction . However, unlike the other puni shment witnesses, the State had recordings of jail calls between applicant and Brandon which did not portray Brandon in a positive light. For example, during one call applicant is explaining to Brandon how he cut off his ankle
monitor 4 and spliced it back together and everyone thought he was at his apartment when he was actually at Quizno’s getting a sandwich. (RR13: 153

- 54). Applicant said, “Yeah, when the cops busted in my front door, my ankle monitor was sitting on the couch next to me,” and he and Brandon started laughing. (RR13: 153

- 54). Brandon replied, “Oops,” and they laughed from there. (RR13:
153

- 54). In another call, applicant tells Brandon, “C heck my email and check Pam’s that I hacked into.” (RR14: 86). Applicant stated, “ I sent a nice letter to everyone about her being a whore ,” to which Brandon responded, “Nice.” (RR14: 86). 5 Brandon’s apparent lack of concern for the law and encouragement of applicant’s behavior, as evidenced in the jail calls, diminished his credibility to the point that his testimony would have been more detrimental than beneficial.

4 Prior to his arrest in this case, applicant was arrested and charged with assaulting his ex

girlfriend, Pam Evans, and was wearing an ankle monitor as a condition of his release on bond. (RR13: 152

- 53, 202

- 03).

5 Evans previously testified that, followi ng their breakup and applicant being charged with assaulting her, applicant threatened her and hacked into her email account and sent a vulgar email about her to all of her contacts.19

Courts generally recogn ize that it is trial counsel’s prerogative, as a matter of trial strategy, to decide which witnesses to call. Miller v. Lynaugh , 810 F.2d 1403, 1410 (5th Cir. 1987) , c ert. denied , 484 U.S. 838 (1987); Weisinger v. State , 775 S.W.2d 424, 427 (Tex. App.

— Houston *14th Dist.+ 1989, pet. ref’d)

. Counsel had a clear strategy in his presentation of witnesses during the punishment phase. The fact that writ counsel would have called additional or different witnesses is insufficient to show that counsel was deficient. See Miller , 330 S.W.3d at 616. A pplicant has failed to prove that counsel was defici ent for not calling these particular witnesses.
P REJUDICE P RONG Even if this Court were to find counsel’s performance was deficient, applicant cannot show prejudice. This case was not about what evidence counsel elicited or failed to object to during the trial, what his advice was regarding pleading guilty or not guilty, or what additional character witnesses could have testified. This case was entirely about what sentence the applicant was going to receive in light of the sheer volume and appalling nature of his crimes. The only way the jury would have reached a more favorable verdict was if applicant had listened to the advice of his c ounsel a nd taken the stand during punishment.20

Strickland requires the applicant to establish, by a preponderance of the evidence, that the harm resulting from trial counsel’s deficiency undermines the confidence in the trial’s outcome. See Strickland , 466 U.S. at 689. A pplicant has not made this showing. In presenting his claims in the writ application and at the writ hearing, applicant has focused entirely on trial counsel’s deficiencies. He has failed, however, to demonstrate that representation by a more competent trial counsel w ould have led to a different result

. Even if applicant h ad entered a “slow plea” of guilty before the jury, the State would have still had to prove its case and would have still put on the same amount of evidence. The benefit of admitting guilt up front, as opposed to making the State prove its case and acknowl edging guilt during the punishment phase, would have been negligible in a case of this magnitude. And w hile some of the evidence counsel elicited or failed to object to
may have be en unfavorable, applicant fails to prove that, if all of the complained

of e vidence had not been before the jury, the outcome at trial would have been different. Likewise, he fails to prove by a preponderance of the evidence that the presentation of three additional witnesses at punishment would have changed the outcome of the pro ceeding.21

It is not surprising that a pplicant makes no mention of the incredible facts of this case. Applicant was not your average burglar. The State’s evidence showed that applicant was the ring leader of a group that committed a shocking number of home burglaries in the Uptown area of Dallas and other surrounding areas. Th e re were fifty

- one confirmed victims of burglaries with similar characteristics. The group used a unique method of entry, namely a small hole drilled above the deadbolt lock

. Applicant and his cohorts committed the burglaries when the victims were out of town for several days, allowing them ample time to go through every inch of the home and clear out the property. In some cases, they even squatted in the homes, leaving behind disheveled beds, empty pantries and fridges, beer cans, and cigarette butts

. The type and amount of property t aken from the homes was generally the same and included disturbingly intimate items such as wo men’s underwear, used makeup , and collectible s of no value except to the owner who had collected them

. Much of the stolen property was recovered in apartments and storage units rente d by applicant or his cohorts. After hearing the State’s evidence, the jury returned a guilty verdict in just twelve minutes. Defense counsel presented a thorough punishment case and argued that applicant deserved leniency because he was a law

- abiding citizen from a loving22

and supportive family until he made the mistake of becoming addicted to illegal drugs . With the assistance of applicant’s family, d efense counsel organized an extensive lineup of character witnesses to testify on applicant’s behalf , including: applicant’s m other and father ; former Texas Land C ommissioner and gubernatorial candidate Garry Mauro, w ho had worked closely with applicant during the 2004 campaign; Arthur Schecter, a Houston attorney and a former ambassador to Bermuda under Bill Clinton, who also worked closely with applicant during the 2004 campaign and had given applicant the keys to his R iver Oaks mansion to come and go as he pleased when in Houston; Father Don Donahugh, applicant’s priest where he attended church in Port Arthur; Mike Owens, applicant’s high school football coach; and Bill Maddox, applicant’s godfather and former editor of the Port Arthur News. Defense counsel also presented expert testimony from doctors who had done extensive testing on applicant and determined that he was sexually molested by a babysitter at age nine, that he suffers from attention deficit disorder, that he was not a sociopath or psychopath , and that what he needed m ost was intensive drug treatment. In light of all the evidence at trial, the record does not support a finding that the jury would have reached a more favorable verdict if a few pieces of23

nega tive evidence had been omitted or a few additional character witnesses had been added to the defense’s punishment case. The disturbing nature and number of burglaries committed most certainly supported the jury’s sentence of sixty

- five years’ imprisonment

. In reality, the only thing that would have changed the outcome of applicant’s sentence in this case would have been for him to take the stand, accept responsibility for his actions, and throw himself on the mercy of the jury. Indeed, this is exactly what counsel had e nvisioned and built the mitigation case around. While the character witnesses played an important role, applicant’s own testimony was vital to tie it all together and allow the jury to see the true Damon West absent drugs. Applicant listening and follow ing the advice of his defense team and his family was the only thing that would have changed the
outcome in his case

.24 PRAYER The State respectfully requests that this Court deny the relief requested by applicant in his application for w r it of habeas corpus

. Respectfully submitted,

_____ _______________________________ Susan Hawk Jaclyn O’Connor Lambert Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24049262 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB

- 19 Dallas, Texas 75207

- 4399 (214) 653

- 3625 phone (214) 653

- 3643 fax joconnor@dallascounty.org

C ERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief, inclusive of all contents, is 4,502 words in length according to Microsoft Word and complies with the word

- count limit provided for in the Texas Rules of Appellate Procedure. See Tex. R. App. P. 9(i)(2)(B)

.

_____ _______________________________ Jaclyn O’Connor Lambert25 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing brief was served on applicant’s counsel, Chip L ewis , chipblewis@aol.com , via e - service on May 15, 2015

.

_____ _______________________________ Jaclyn O’Connor Lambert