AFFIDAVIT WAS NOT
REQUESTED FROM TRIAL COUNSEL BECAUSE APPLICANT"S CLAIM LACKS ME.RIT BASED
UPON AN APPLICATION OF LAW TO THE FACTS PRESENTLY CONTAINED IN THE RECORD.
THE STATE IN ITS ANSWER ON APPLICANT'S GROUND 2 & 14 INEFFECTIVE ASSIS-
TANCE OF COUNSEL @ P. 3-6 SPECIFICALLY ADDRESSING APPLICANT'S CLAIM OF
INEFFECTIVENESS. THE STATE MISCONSTRUED AND MANIPULATED APPLICANT'S CLAIM
THAT TRIAL COUNSEL FAILED TO INVESTIGATE, APPLICANT'S VERSION OF EVENTS
:~F A THIRD PARTY PERPETRATOR, CHARACTER WITNESSES AND FAILED TO CROSS
EXAMINE THE VICTIM CONCE~NING HIS ALIBI STATEMENT AND COUNSEL'S DECISION
TO MOVE FORWQRD WITH THE TRIAL WITHOUT CALLING APPLICANT TO TESTIFY NOR
ANY OF HIS CHARACTER ,WIT~ESSES. THE STATE IN ITS CONCLUSION AND PRAYER @
P.9 REQUESTED THE COURT TO FIND THAT(a) NO CONTROVERTED AND PREVIOUSLY
UNRESOLVED FACTS ISSUES MATERIAL TO THE LEGALITY OF THE APPLICANT'S CON--
FINEMENT;(2) EXPANSION OF THE RECORD BY AN EVIDENTIARY H8@RING OR OTHERWISE
IS NOT NEEDED; (3) THE ASSERTIONS CONTAINED IN THE STATE'S ANSWER ARE
CORREGT. THE STATE FILED A PROPOSAL OF FINDING OF FACTS AND CONCLUSION
2. OF LAW AND RECOMMENDATION.
III.
THE COURT ON 4/3/15 ADOPTED THE STATE'S PROPOSAL AND RECOMMENDATION
THAT THE APPLICANT'S HABEAS CORPUS APPLICATION BE DENIED AND ORDE~
THE CLE~K TO FORWARD THE APPLICATION TO THE COURT OF CRIMINAL APPEALS.
APPLICANT DID NOT RECEIVE A COPY OF THAT ORDE:R UNTIL 4/15/15.
THE TRIAL COURT PURSUANT TO 11.07 i 3tc)-~IT SHALL BE THE DUTY OF THE
CONVICTING COURT TO DECIDE WRETHER THERE ARE CONTROVERTED, PREVIOUSLY
UNRES6LVED FACTS MATE>'iTAL TO THE LEGALITY OF THE APPLICANT'S CONFINEMENT. 11
APPLICANT CONTENDS THAT THE COURT HAD BEFORE IT CONTROVERTED, PREVIOUSLY
REsLVED ISSUES, APPLICANT'S ALLEGATION WHICH IF TRUE, WOULD ENTITLE HIM
TO RELIEF AND THE STATE'S DENIAL OF APPLICANT'S INEFFEtTIVE "ASSISTANCE OF
COUNSEL CLAIM IS THE CONTROVERTED ISSUE AT HAND. THE PREVIOUSLY UNRESOLVED
FACTS MATERIAL TO APPLICANT'S CLAIM IS THAT TRIAL COUNSEL HAS NOT BEEN
DEPOSITION CONCE~NING THE APPLICANT'S ALLEGATION THAT HE WAS INEFFECTIVE
ASSISTANCE FOR FAILING TO INVESTIGATE( SEE APPLICATION AND MEMO FOR FURTHER
ARGUMENT.)
APPLICANT CONTENDS THAT THE TRIAL COURT ABUSED ITS DISCRETION, BY
FAILING TO DESIGNATE ISSUE, WHETHER APPLICANT WAS DENIED EFFECTIVE ASSISTAN
CE OF COUNSEL AT TRIAL AND VIOLATED ITS LEGAL DUTY UNDE~ 11. Cfr ~ 3 (d)
AND APPLICANT HAS NO ADEQUATE ~EMENDY TO APPEAL TO OBTAIN THE NECESSARY
PROCEEDING IN ·WiffiCH HE IS ABLE TO DEVELOP A RECORD CONTAING (FACTS)
DIRECT EVIDENCE OF WlHY COUNSEL FAILED TO INVESTIGATE, APPLICANT'S VERSION
OF THIRD PARTY PERPETRATOR AND CHARACTER W-ITNESSES AND CROSS
EXAMINE THE VICTIM CONCEk'iiNG HIS ALIBI STATEMENT AND CALL HIM TO TESTIFY.
IV.
THE COURT OF CRIMINAL APPEALS HAS HELD THAT 11 T~E IN HERENT NATURE OF
MOST INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS MEANS THAT THE ':'RIAL RECORD
WILL OFTEN FAIL TO CONTAIN THE INFORMATION NECESSARY TO SUBSTANTIATE THE
3. CLAIM.;, AND ALsD " IT IS ESSENTIAL TO GATHERING THE FACTS NECESSARY TO ...
EVALUTE ..• THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM." SEE EX PARTE
TORRES, '94333.W.2d 469,477(T.C.A.l997)
APPLICANT REQUEST THAT HE BE G1VEN A FULL AND FAIR OPPORTUNITY TO
PROVE