gl ,9351“02103/”*/05`

 
  
   
 

January 27, 2015
Smith Count istrict Clerk

100 North adway, Room 204
Tyler, Te s 75702

Re: Ex parte Michael Regard Webb, Case No’s. 007-0447-1 l, 007-0048-.11, 007-0449-1 l & 007-
0450~1 l (In the 7'h Judicial District Court of Smith County, Texas).

> Reply to State’s Original and Supplemental Answers to Application for Habeas Corpus
Dear Clerk:

Enclosed please find the original copy of Applicant Webb’s Reply to State’s Original and Supplemental
Answers to his Original Applications for Writ of Habeas Corpus Applications, to be filed among the
papers in the above-styled and numbered causes.

Please notify Applicant at his address listed below of the date of filing and disposition of these
proceedings

Thank you for your kind attention to this matter.

 

Sincerely,
, <’

     

 

 

 

RECEW ~

 

   
 

  

COuRT oF cRIMINAL APPEALS
*',NW ' FEB 0 4 2015
wynne unit
§L?ir:];llie§?exas 77349 Ab€l ACOSta, Clerk
Enc|osures
CC:

*!~ Abel Acosta, Clerk
Court of Criminal Appea|s
P.O. Box 12308
Austin, Texas 787] l

*Z‘ Aaron S. Rediker
Asst. District Attorney
Smith County, Texas
l00 North Broadway, 4"‘ Floor
Tyler, Texas 75 702

File

lPY
CASE NUMBER: 007-0449-11-A
EX PARTE § IN THE DISTRICT COURT

MrCHAEL RENARD wEBB § 7TH JUDICIAL DISTRICT

APPLICANT, TDCJ-CID#01784S39 § SMITH COUNTY, TEXAS

APPLICANT WEBB’S REPLY TO STATE’S
ORIGINAL AND SUPPLEMENTAL ANSWERS TO HIS
ORIGINAL APPLICATION FOR WRIT OF HABEAS CORPUS
WITH BRIEF IN SUPPORT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, your Applicant, Michael R. Webb, TDCJ-ClD#01784539, proceeding in
pro se, in the above-styled and numbered cause pursuant to article l l.07, § 3 of the Texas Code
of Criminal Procedure, and files this, his Reply to the State’s Original and Supplemental
AnsWer(s) to his Original Application for Writ of Habeas Corpus and in support thereof, would

show the Court as follows:
I.

Jurisdiction

The Court has subject matter and jurisdiction over the parties pursuant to Texas Code of

criminal Procedure, Article 11.07. et. seq.
II.

CONFINEMENT & RESTRAINT

Applicant Was indicted in cause number 007-0449- ll, filed in the 7th District Court of

Smith County, 'l`exas, for the offense of possession/manufacture with intent to deliver a

controlled substance, namely cocaine, >l g, DFZ,1 a second degree felony (enhanced). On March
19, 2012, Applicant, With his two trial attorneys, Mr. Greg Waldron and Ms. Tonda Curry,
entered into a non-negotiated plea of guilty in a single hearing.2 Based on his plea entered at that
time before the Court, the Court found Applicant guilty of the charge alleged in the instant
indictment and sentenced him thereafter in a consolidated plea and sentencing hearing to
confinement in the Texas Department of Criminal Justice, Correctional Institutions Division
(TDCJ-CID) for thirty (30) years. A direct appeal was taken to the TWelfth Court of appeals in
Webb v. State, No. 12-12-00175-CR, Who affirmed the judgment and sentence in an unpublished
opinion dated June 25, 20]3.3 No Petition for Discretionary Review was filed in this case.
Applicant filed his original application seeking a writ of habeas corpus in this case on September
20, 2014, as opposed to Respondent’s claim the same was filed on October 01, 2014.4
Respondent made a separate answer to the instant state writ application on October 16, 2014.5

Then, it subsequently made a “consolidated” supplemental response to the instant writ

 

' This case was as being enhanced with one enhancement paragraph and drug free zone allegation

2 Applicant’s related unadjudicated cases; case number: 007-0448-11 for manufacture/intent to deliver a controlled
substance, namely, cocaine >4g <200g, a second degree felony (enhanced) and in case number: 007-0450-11 for
manufacture/intent to deliver a controlled substance, namely cocaine <l g in a drug free zone (DFZ), a third degree
felony (enhanced); See Exhibit A, Judgment and sentence in Stale of Texas v, Mi'chael Renard Webb, No. 007-0449-
1 1.

3 See Webb v. State, No. 12-12-0175-CR (Tex. App. - Tyler June 25, 2014, no pet.).

4 See Ex parte Webb, Case No. 007-0449-11-A, at 17;als0 see Ri'chards v. Thaler, 710 F.3d 573 (5th Cir. 2013),
holding in relevant portion that, “...Coleman was no longer valid and the mailbox rule now applies to Texas
prisoners’ state habeas filings. The dismissal of Richards’ petition was reversed and the case remanded for further
proceedings.” Federal and State courts must now find that a prisoner’s state writ application is considered filed on
the date they sign it and place it in the prison mail box for authorities to mail on their behalf to be filed.

5 For purposes of this proceeding, Applicant will refer to the Respondent’s Answer as “Answer,” followed by the
page referenced

application on December 08, 2014, which is in violation of the Court of Criminal Appeals Local
Rules and the Texas Rules of Appellate Procedure in that both sets of rules require that separate,
not consolidated filings must be made for each cause number separately. Wherefore, based upon
the violation of these rules by Respondent, Applicant would respectfully request that the
document filed in the district Court entitled: Cause Number 007-0448-1 l-A, 007-0449-11-A &
007-0450-1 l-A, Ex parte Michael Renard Webb, filed in the 7th Judicial District Court of Smith
County, Texas, accordingly be stricken from the habeas record and not considered whatsoever

for any purposes. This proceeding followed.
II.

STATEMENT OF FACTS
Applicant adopts the background facts articulated by the Twelfth Court of Appeals in its

consolidated unpublished memorandum opinion entered on June 25, 2013, at the time it affirmed
all of Applicant’s judgment and sentences before it, as follows:

[Applicant] was charged by indictment with the offense of aggravated assault on a public
servant and three instances of manufacture or delivery of a controlled substance On
February 29, 2012, a bench trial began on the indicted offense of aggravated assault on a
public servant. Ultimately, the trial court found [Applicant] guilty of the offense and
made an affirmative deadly weapon finding. Sentencing Was postponed until after a
presentence report was prepared On March 19, 2012, [Applicant] pleaded guilty to the
remaining offenses Each offense was enhanced under the habitual offender statute, and
two of the cases contained drug-free zone enhancements [Applicant] pleaded true to all
enhancements in each case. The trial court pronounced [Applicants] sentence in each case
on April 20, 2012. [Applicant] was sentenced to various terms of imprisonment in
addition to being assessed court costs and in some cases, restitution The trial court

ordered [Applicant] to pay $55,432.18 in restitution and taxable court costs in the

aggravated assault case. ln one of the drug cases, the trial court ordered [Applicant] to
pay $515.00 in restitution in addition to taxable court costs. ln another of the drug cases
(a drug-free zone case), the trial court ordered [Applicant] to pay $515.00 in restitution,
but did not order payment of restitution in the other drug-free zone case, The certified bill
of costs was not in the record when the judgments of conviction Were signed. After
[Applicant] filed his brief, the district clerk supplemented the record in each case to

include a bill of costs. Ial.6

III.
APPLICANT’S ALLEGATIONS
In the instant application seeking habeas corpus relief, Applicant submits three separate

grounds for relief as follows:

l. Applicant complains that his guilty plea was unknowingly, unintelligently and
therefore, involuntarily entered based upon the erroneous advice of trial counsel(s)
in violation of the Fifth, Sixth and Fourteenth Amendments to the United States
constitution;

2. Applicant complains that he was denied the effective assistance of counsel at trial in
violation of the Sixth Amendment to the United States Constitution;

3. Applicant complains the trial court erred and abused its discretion by accepting his
guilty plea in this case, as well as another offender’s guilty plea in an unrelated case
at the same time, confusing him and contributing to his plea of guilt being entered
involuntarily. Ia'.

See State Writ Appl. 6-10.

IV.
ARGUMENT & AUTHORITIES

A. Ground One: Involuntary Plea
In ground one the Applicant herein complains that his guilty plea was entered

unintelligently, unknowingly and involuntarily based upon the erroneous advice of counsel.

 

6 See Consolidated Memorandum Opinion for Webb v. Stale, Case Nos. 007-0447-1 l, 007-0448-1 1, 007-0449-11 &
007-0450-1 l, at 1-2. '

Specifically, Applicant submits trial counsel(s) were ineffective and provided him with
erroneous advice, which he premised his decision to enter a guilty plea, prejudicing the defense.
In his instant application, Applicant has averred that his trial attorneys advised him after being
convicted of Aggravated Assault With a deadly weapon upon a Public Servant in a companion
case 7 and was sentenced to life imprisonment in TDCJ-CID, if he went to trial on this case (and
his two other pending drug possession cases) stemming from the same criminal episode the State
Would ask that the trial court cumulate or “stack” Whatever sentences he might receive in this
case and the other two pending drug cases with his life sentence assessed in the aggravated
assault on a public servant With a deadly weapon.
Standard of Review

Ineffective assistance of counsel claims are reviewed for federal constitutional error
under the two- prong standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,80
L.Ed.Zd 674 (1984). See Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.Zd 638 (1987).
To satisfy this standard a criminal defendant must establish: First that counsel’s performance was
deficient This requires showing that counsel made errors so serious that counsel Was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversarial process that renders
the result unreliable Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. “Judicial
scrutiny of counsel’s performance must be highly deferential.” Ia’. at 689, 104 S.Ct. at 2065.

Every effort must be made to eliminate “the distorting effect of hindsight.” Id. Courts ‘must

 

7 See State v. Webb, Case No. 007-0448-1 l, April 20, 2012.
5

indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance” and a defendant must overcome the presumption that the challenged
action ‘might be considered sound strategy.” Id. (quotirig Michel v. Loui'siana, 350 U.S. 91, 101,
76 S.Ct. 158, 164, 100 LEd. 83 (1955)). Secondly, Petitioner must demonstrate prejudice The
“defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” A reasonable probability is a
probability'sufficient to undermine the confidence in the outcome.” Id. 466 U.S. at 694, 104
S.Ct. at 2068; Lloyd v. Whitley, 977 F.2d 149, 159 (5th Cir. 1992). Petitioner’s claims are firmly
grounded in the record and prejudice is not merely alleged, but affirmatively shown by a
preponderance of the evidence Here, Petitioner alleges that his trial counsel Was deficient for
numerous acts and/or omissions, which contributed to Petitioner not receiving a fundamentally
fair trial and that, but for his unprofessional representation, a reasonable probability exists that
the outcome of the proceedings would have been different.

As Justice Sutherland explained in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.
158 (1932), the right to the assistance of counsel is guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 10 of the Texas
Constitution. This right to the assistance of counsel has long been understood to include a “right
to the effective assistance of counsel.” See McMann v. Rz'chardson, 397 U.S. 759, 771, n. 14, 90
S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). The integrity of our criminal justice system and the
fairness of the adversary criminal process is assured only an accused is represented by an
effective attomey. See United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66
L.Ed.2d 564(1981). Absent the effective assistance of counsel “a serious risk of injustice infects

the trial itself.” Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333

(1980). A defendant is constitutionally entitled to have counsel acting in the role of an advocate
Anders v. Calz`form`a, 386 U.S. 738, 743, 87 S.Ct. 1396, 1399, 18 L.Ed.2d 493 (1967).

Normally, the reviewing court looks to the totality of the representation and the particular
circumstances of the case in evaluating the reasonableness of an attorney’s conduct. See Ex parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). The review conducted of defense
counsel’s representation is “highly deferential and presumes that counsel’s actions fell within a
wide range of reasonable assistance.” Malletz v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)
(citing Tong v. Staze, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). It is the defendant’s burden
to overcome this presumption by proving his ineffective assistance of counsel claim by a
preponderance of the evidence McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App.
1992); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); also see, United States v.
Cronic, supra at 658, 104 S.Ct. at 2046 (the burden rests on the accused to demonstrate a
constitutional violation).

Burden of Proof

In a habeas corpus proceeding, the burden of proof is always on the applicant Ex parte
Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). lt is thus applicant's burden to “prove by a
preponderance of the evidence" that the alleged errors “contributed to his conviction or
punishment” Ex parte Williams, 65 S.W-3d 656, 658 (Tex. Crim. App. 2001). In order to
prevail, an applicant must present facts that, if true, would entitle him to the relief requested. Ex

parte Mala'onado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). Relief may be denied if the

applicant states only conclusions, and not specific facts. Ex parte McPherson, 32 S.W.3d 860,

861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are insufficient
proof of his claims. Exparte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).
State’s Procedural Default

The record below is procedurally devoid of trial counsel, Mark Waldron and Tonda
Curry’s affidavits responding to the Applicant’s complaints of his plea of guilty being entered
unknowingly, unintelligently and involuntary based upon the erroneous advice of counsel, as
well as issues of ineffective assistance of counsel at trial and are therefore not properly before
this Court as a Court of original jurisdiction and based upon the facts and records before this
Court, it is readily apparent that the Respondent included the affidavits in question with the
“State’s Supplemental Answer,” to the instant application seeking habeas corpus relief by
doing so in a “consolidated fashion,” versus each singularly as required by the rules of the
Court, by presenting the same together in said pleading, instead of separately as required by
the instructions contained with the article 11.07 habeas corpus application, instruction number
four (4), as well as the Texas Rules of Appellate Procedure and Texas Administrative Code.
Therefore, when considering Applicant’s instant application and only the original answer filed
by the State, Applicant’s allegations have not been properly met and rebutted by same, and

since the State did file separate original answers to each separate writ application, only the

substance contained therein should be considered by the Court in determining whether or not to
grant or deny relief. (emphasis added).8

Applicant suggests that the Court of Criminal appeals remand this case to the district
court with instructions on how it should properly file any supplemental answers to its original
one, separately in each case according to the rules of the Court of criminal appeals, Texas Rules

of Appellate procedure and Texas Administrative Code as the Applicant is required to do.9

Otherwise, in the interest of judicial economy, Applicant attaches hereto and makes a part
hereof, both the affidavits of Mr. Gregory A. Waldron and Ms. Tonda Curry’s (trial counsel’s),
which they themselves filed correctly with the district clerk of Smith County as Exhibit C and
Exhibit D, respectively and will offer his arguments in dispute thereof infra.

In the instant application, Applicant claims, inter alia, that his attorney’s erroneously
informed him that if convicted of the three companion drugs case, any sentence assessed by court
or jury could be ordered to run consecutive to the life sentence he received in the first case tried

to a jury in which he was found guilty by same and assessed a life sentence

Multiple Prosecutions

TEXAS PENAL CODE
TITLE 1. INTRODUCTORY PROVISIONS

CHAPTER 3. MULTIPLE PROSECUTIONS

 

8 See Exhibit B, “State’s Supplemental Answer in Opposition to Application for Writ of Habeas Corpus, at 46-53
)as transmitted and numbered by the Clerk of Smith county to the CCA.

9 At the time of his prosecution in a companion case, Case No. 007-0447-11, Applicant had four other cases
pending, one of which was dismissed by the State.

Sec. 3.01. DEFINITION. In this chapter, "criminal episode" means the
commission of two or more offenses, regardless of whether the harm is directed
toward or inflicted upon more than one person or item of property, under the
following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two
or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.10

Sec. 3.03. SENTENCES FOR OFFENSES ARISING OUT OF SAME
CRIMINAL EPISODE. (a) When the accused is found guilty of more than one
offense arising out of the same criminal episode prosecuted in a single criminal
action, a sentence for each offense for which he has been found guilty shall be
pronounced Except as provided by Subsection (b), the sentences shall run
concurrently

(b) If the accused is found guilty of more than one offense arising out of the same
criminal episode, the sentences may run concurrently or consecutively if each
sentence is for a conviction of:

(1) an offense:

(A) under Section 49.07 or 49.08, regardless of whether the accused is convicted of
violations of the same section more than once or is convicted of violations of both
sections; or

(B) for which a plea agreement Was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A), regardless of whether
the accused is charged with violations of the same section more than once or is
charged with violations of both sections;

(2) an offense:

(A) under Section 33.021 or an offense under Section 21.02, 21.11, 22.011, 22.021,

25.02, or 43.25 committed against a victim younger than 17 years of age at the time

 

m Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. l, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 387, Sec.
l, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. l.01, eff. Sept. 1, 1994.

10

of the commission of the offense regardless of whether the accused is convicted of
violations of the same section more than once or is convicted of violations of more
than one section; or

(B) for which a plea agreement Was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A) committed against a
victim younger than 17 years of age at the time of the commission of the offense
regardless of whether the accused is charged with violations of the same section
more than once or is charged with violations of more than one section;

(3) an offense:

(A) under Section 21.15 or 43.26, regardless of whether the accused is convicted of
violations of the same section more than once or is convicted of violations of both
sections; or

(B) for which a plea agreement was reached in a case in which the accused Was
charged With more than one offense listed in Paragraph (A), regardless of whether
the accused is charged with violations of the same section more than once or is
charged with violations of both sections;

(4) an offense for which the judgment in the case contains an affirmative finding
under Article 42.0197, Code of Criminal Procedure;

(5) an offense:

(A) under Section 20A.02 or 43.05, regardless of whether the accused is convicted
of violations of the same section more than once or is convicted of violations of both
sections; or

(B) for which a plea agreement Was reached in a case in which the accused was
charged with more than one offense listed in Paragraph (A), regardless of whether
the accused is charged with violations of the same section more than once or is
charged with violations of both sections; or

(6) an offense:

(A) under Section 22.04(a)(l) or (2) or Section 22.04(a-1)(1) or (2) that is
punishable as a felony of the first degree, regardless of whether the accused is
convicted of violations of the same section more than once or is convicted of

violations of more than one section; or

ll

(B) for which a plea agreement was reached in a case in which the accused was
charged With more than one offense listed in Paragraph (A) and punishable as
described by that paragraph, regardless of whether the accused is Charged with
violations of the same section more than once or is charged with violations of more

than one section.

(b-l) Subsection (b)(4) does not apply to a defendant whose case was transferred to

the court under section 54.02, Farniiy Code. “

As none of the exceptions articulated and codified supra, (Which allows an exception to
the criminal episode restrictions regarding cumulating certain sentences regardless of whether or
not they were part of the same criminal episode) are not applicable to the applicant as he was
never convicted of any of the statutory offenses enunciated under our Penal Code and therefore,
trial counsel was erroneous in advising Applicant that they were and Applicant strenuously avers
herein, that had he been aware that any corollary conviction or sentence resulting from his
pending indictments’ could not be cumulated with his life sentence already assessed in his first
companion case tried, he would not have pled guilty, but would have insisted on proceeding to
trial by jury in all of his remaining companion cases still pending

Afiidavit of Gregory A. Waldron, Trial Counsel (lead)

ln his affidavit, attached hereto as Exhibit D, counsel states in relevant part:

Webb was found guilty by this court and sentenced to life in prison. Webb had four

other cases pending, three to which he pled and one that was dismissed Counsel had

 

ll Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. l, eff. Jan. l, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec.
1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 596, Sec. l, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 667,
Sec. 2, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 527 (H.B. _9_0_4), Sec. l, eff. September l, 2005.

Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. §), Sec. 3,47, eff`. September l, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1291 (S.B. §), Sec. 6, eff. September 1, 2007.

Acts 2009, 815t Leg., R.S., Ch. 1130 (H.B. M), Sec. 21, eff. September l, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. B), Sec. 6.01, eff. September l, 2011.

Acts 2013, 83rd Leg., R.S., Ch. 228 (H.B. 2_20), Sec. l, eff. September l, 2013.

12

lengthy discussions with Webb regarding how to proceed with trial and Webb agreed
with counsel’s trial strategy. Counsel also had discussions with Webb regarding the
potential of stacking of sentences after his conviction for aggravated assault lt is still

counsel’s position that Webb’s sentences could have been stacked. Ia'. at cover.
See Exhibit C, A]j'idavit of trial counsel, Gregory A. Waldron.

lt is Applicant’s assertion herein that under these circumstances, Which are firmly rooted
in the record, it is apparent that each of his attorney’s12 misinformed him as to whether or not the
adjudication and sentencing iri the pending three companion cases could have been cumulated
with his life sentence7 not distinguishing between one or the other, but informing him all three
companion cases would be stacked by the trial court if he did not enter open pleas of guilt to
each. Applicant avers that had he known that one or all of the three pending cases could not be
cumulated as a matter of law, he would not have entered open pleas of guilt before the trial to
any of them, but would have insisted on proceeding to a trial by jury in each case,
Plea with Unrelated Defendants

During the plea colloquy, Applicant was taken unaware that the trial court planned on
taking his plea(s) with another defendant in an unrelated case at the same time, Neither of his
trial attomeys’ informed him prior to the time his plea(s) were taken. He himself had three cases
he was entering pleas of guilt to and is unaware of the exact number the unrelated defendant was
pleading to and the transcript is demonstrative of the confusion that ensued during the process.

Contrary to both trial attomeys’ assertions contained in their respective affidavits in this regard,

 

'2 Applicant incorporates by reference the affidavit filed by second chair counsel, Ms. Tonda Curry, attached hereto
as Exhibit D, her sworn statement in this regard; “[C]ounsel also had discussions with Webb [Applicant] regarding
the potential of stacking of sentences after his conviction for aggravated assault. lt is still counsel’s position that
{Applicant’s] sentences could have been stacked.” Id. at cover. This generalization by counsel fails to distinguish
between whether or not one or all three of the pending indictments could have resulted in any future adjudication of
those charges and resulting sentences being cumulated as told to Applicant by same at the time he was advised by
both attorneys that he should enter open pleas of guilt.

13

neither of them personally informed him of this situation prior to it occurring or ask his
permission or if he was okay with proceeding in such a manner. lt was very confusing to
Applicant with the judge switching back and forth between him and the other unknown,
unrelated defendant to the point Applicant felt like an automaton being prompted by counsel
thought the proceeding to say yes or no to questions asked by the court. Applicant became
dismayed as the hearing progressed and acquiesced in the face of his complaints made to counsel
being rebuffed and ignored; it was like, “just be quiet, answer as you are told or else. . .”

Accordingly, Applicant would respectfully request that this Honorable Court sustain this
ground for relief.

B. Ground TWo: Ineffective Assistance of Trial Counsel(s)

Applicant would point out to the Court that neither Mr. Waldron or Ms. lTonda Curry
responded to his second and third grounds presented in the instant application, and while the
State’s silence as to any issue they choose to remain silent to are deemed to be a “general
denial,” controverted issues involving ineffective assistance of counsel, wherein the same is
designated as requiring resolution, which go unanswered or addressed by trial counsel affidavit
in their response to those allegations contained within the instant application are not afforded a
default response of a general denial within this Court’s jurisprudence and therefore be deemed as
admitted.

ln his second ground Applicant alleges that both his trial attorney’s representation was
deficient and the following instances of ineffective assistance of counsel has been made against
them in Applicant’s writ application, which he reiterates and discusses herein now further
below:l3

(a) Counsel was ineffective for failing to obtain funds from the Court to hire a private

 

m See State Writ Appl. at 8.
14

investigator to assist with investigating the facts of the case
(b) Counsel(s) were ineffective for failing to complete a thorough investigation of the facts
and applicable law in these cases before advising Applicant to plead guilty.

Applicant avers that had counsel hired a private investigator with funds from the court it
would have increased his chances of having a better outcome in regards to the drug cases alleged
against him by the State. Applicant bases his assertions upon the following facts: (1) two of the
three pending drug cases against him occurred approximately nine months prior to the
aggravated assault case arising. l-lowever, neither of the attorneys was familiar with the facts or
evidence connected to the State’s prosecution of the prior drug cases when they became involved
with the assault case and assumed responsibility for defending him in his other related cases,
including the instant one; (2) At the time of his plea(s) to the three pending drug cases Applicant
asked his attorney to explain to him what “drug free zone” meant and how it would impact his
sentencing before the trial court and Mr. Waldron responded: “Just keep quiet and don’t piss off
the judge Following counsel’s advice Applicant remained moot until asked a question by the
trial court in regards to the plea process and Mr. Waldron would either nudge him or tap his foot
against Applicant’s foot and then whisper out the side of his mouth the response he wished
Applicant to make This became especially confusing to Applicant as the judge switched back
and forth between him and the unrelated defendant the court was taking a plea from at the same
time ln retrospect, Applicant understands this is not how the law envisions plea hearings to be
conducted and these processes conducted in this regard that led to his unknowing and therefore,
involuntary guilty plea being entered. Counsel provides no information in rebuttal to Applicant’s
assertions in this regard within their respective affidavits and Applicant requests that this

Honorable Court resolves these allegations in his favor and thereafter recommending that the

writ issue

15

 

(c) Counsel, through lack of investigation failed to determine through fingerprinting or DNA
analysis whether or not the bags containing the illicit contraband substance had ever been
in Applicant’s personal possession after being found, not on his person, but in proximity
allegedly to where he was arrested for aggravated assault against a public servant, after
being physically subdued by several other police officers.

Again, neither attorney addresses this issues in their affidavit(s) responding to the
ineffective assistance of counsel allegations contained in the instant writ application and

therefore, Applicant requests the habeas court deem them admitted by same

(d) Counsels were separately and collectively ineffective for failing to object to the trial
court taking his pleas while doing so at the same time With an unrelated defendant

Applicant avers here, as he does above, that he objected to his plea being taken with the
unrelated defendant because it was too confusing to both his attorneys and was told the best thing
he could do is keep quiet, following counsel’s lead, say what he was told to say or he would
never see the light of day again. That is a very strong a persuasive thereat, which applicant took
seriously and complied When Mr. Waldron would either nudge him or tap his foot against
Applicant’s foot and then whisper out the side of his mouth the response he wished Applicant to
make This became especially confusing to Applicant as the judge switched back and forth
between him and the unrelated defendant the court was taking a plea from at the same time
C. Ground Three: Abuse of Discretion by Trial Court

Applicant incorporates by reference for all purposes the arguments presented in ground
two, supra, and would ask that the Court consider same in support of the instant ground

presented herein for all purposes

CONCLUSION
Accordingly, Applicant would respectively request that this Honorable Court sustain each

t

ground presented herein for habeas relief and remand this case back to the trial court for further

l6

consideration

SIGNED on this the 27th day of January 2015.

Respectfully submitted,

 

T CJ-ClD#01784539
ynne Unit

810 FM 2821

Huntsville, Texas 77349

:t;'?lhaei R. webb, Applicant, Pro se

CERTlFlCATE OF SERVICE

l, Michael R. Webb, Applicant, Pro se, TDCJ-CID#01784539, herein certify that a true
and correct copy of the foregoing instrument was sent to the Respondent, by placing same, in the
prison mail box, first-class, postage paid, addressed to:
Aaron S. Rediker
Smith County Asst. District Attomey
100 North Broadway, 4th Floor
Tyler, Texas 75702

sIGNED on this the 27‘*‘ day nrJanuary 2015.

 

///lichael R. Webb, Applicant, Pro se

17

EXHIBIT

A

18

CASE N0.007-0449-1 l Coer 1
INCiDENr NojTRN: 90614241 i9

rim sTATE oF rExAs § IN THE 7T‘*JUmcrAL

v. § DrsTRICT coURT
MiCHAEL RENARD wires § sMITH CoUN'rY, TEXAS
SIATE lD No.: TX05501439 §

 

JUDGMENT OF CONVICTION BY COURT--WAIVER OF JURY TRIAL

Judge Presidi`ng HoN. KERRY L. RUSSELL Dare_]udgment Enteied: 04124!12

D. Matt Bingham/R. Vance/C. Attomey for Defendant: wALDRON’ GREGORY A'
Gatewood

Offcri§§ for which llefgndant §oriy_ig;§d_:
MAN/DEL CS PG 1>1G DRUG FREE ZGNE

Attomey for Siare:

 

 

 

C aging lnstmmenr: St@§_e_ for focnsc:

lNDlCTMENT 481.112(€!)

gate of Qf’fense;

07]26/10

l)cgrcc of foense: Plca to Qf?ensg Finding§ gri Dcaglx Wea,p_gg__
lgr Degree Felony Gllilfy N/A

 

‘i`erms of Plg Bai'gain:
Defendant Made Open Plea.

 

 

 

 

 

Plca to l" Eriharicement Paragraph: TR UE Plca to 2“° Enhancemerit/Habltual Paragraph: N/A
Findings on l" Enliancemeni Flndings on 2“" Enhanccment/Habimal N/A
Paragraph: TRUE Paragraph:

Plea on Jurisdictional Paragraph: N/A

findings on lurisdictional Paragraph: N/A

Date Serireiice Imposed: 04/20/2012 Date Sentence to Commcnce: 04/20/2012

 

Punis‘rimenr and Plane of` . . .
Conf.mcmem: 40 Ycars 00 / Texas Department of Criminal Jnstice

'l`HlS SENTENCE SHA l,l. RUN CONSECU'I`¥VELY TO LIFE SEN'I`ENCE IN CAUSE NO. 807»(}447-!1

l:l SENTENCE OF CON\"`[NEMENT SUSI'ENDED, DEFENDANT PLACED ON COMMUN]TY SUPERV!S!ON FOR N/A.

 

.F. i.n_.¢: §..___Qur\ C<>s:rs &\¢Me. lisath
M AGENCWAGENT (see below)
Smith County Co¢lections Departrnerit
So`”o 5368`00 3515'00 200 E. Ferguson, Suite 213
Tyler, TX 75702

 

Scx Offender Registration Requlrements DO NOT APPLY to the Defendant. Tr£x. CODE CRIM. PROC. chapter 62
l`lie age of the victim at the lime of the offense was not provided
lime Credited: 415 DAYS

Ml pertinent information names and assessments indicated above are incorporated into tire language nude judgment below by reference
This cause was called for trial in Smith Counry, i`exas. The State appeared by her Discrict Attomey.

goun§£l l Waivcr Qf Counsel {select une)

E Del`endanr appeared in person with Counse‘..
33 Dcfendam knowingly, lntclligemly, and voluntarily waived the right to representation by counsel in writing in open court

24

30th parties announced ready for trial Defendant waived the right of trial by jury and entered the plea indicated above The Court then
admonished Defendant as required by law lt appeared to the Court that Defendant was mentally competent to stand lrial, made the plea freely and
voluntarily, and was aware of the consequences of this plea The Court received the plea and entered` it of record Havirig heard the evidence
submitted tire Court found Defendant guilty of thc offense indicated above ln the presence ol` Defendant, the Court pronounced sentence against

Defendant.
'l”hc Court FINDS Defendant committed the above offense and GRDERS, ADJU DGES AND DECREES that Defendant is GUIL'I'Y of

the above offense The Court Fri\'i)s the Presenience lnv¢stigation, il` so ordered, was done according to the applicable provisions of TEx. Coor-;

CRrM. PRoc. art. 42.12 § 9.
The Court Okor.ns Defendanr punished as indicated above The Court Oiu)£ns Defendant to pay all fines court cosis, and restitution as

indicated above

Pu ishment tions select one
g Confmement in State Jail or Institurionsl Division. The Court ORI>ERS the authorized agent of the State ofTexas or the Shenff of this County
to rake, safely convey, and deliver Defendam to die Director ofTDCl-ID. Tlie Court ORBERS Defendant to be confined for the period and in the
manner indicated above The Court Oiu)r;ns Defendanr remanded to the custody eftlie Sherin` ofthis county until the Sherill‘ can obey the directions
of this sentence The Court anr.as that upon release from confinement Defendanr proceed immediately to the Smith County District Clerk’s
Oliice. Once ihcrc, the Court Unm:izs Defendant to pay, er make arrangements to pay, any remaining unpaid fines, com costs, and restitution m

ordered by the Court above
{:1 County Jail-Continement / Cont`memeot in Lieu of Payment. The Court Olmeizs Dcr`endant immediately committed to the custody ofthe

Sheriti` of Smith County, Texas on the date the sentence is to commence Det`endant shall be confined in the Smith County Jail for the period
indicated above The Court Gtu)ms that upon release from confinement Defendant shall proceed immediately to the Smith County Dism'et Clerlc's
Otl‘ice. Oncc there, the Court Onoaizs Defendant to pay, or make arrangements to pay, any remaining unpaid fincs, court costs. and restitution as

ordered by the Court above
l:l Fioe Only Payment. The punishment assessed against Defendant is for a F§NE QNLY. The Court ORoF.Rs Dcfcrtdant to proceed immediately to
the Ol`tiee of the Smith County District Clerk. Oncc lhcre, tire Couir Oru)t:ns Defendant to pay or make arrangements to pay all fines and court

costs as ordered by the Court in this cause

§xecution l Susgension gf Senteng {sgleec one}

§§ lite Court Oiu)r;its Defendants sentence Execimio.
111 The Court ORoERs Defendants sentence of confinement susi>n.~osi>. The Court Oiu)r:ns Defendant placed on community supervision for the
adjudged period (above) so long as Defendanl abides by and does riot violate the terms and conditions of community supervision The order setting
forth the terms and conditions of community supervision is incorporated into this judgment by reference

The Court ORDF,RS that Defendant is given credit noted above on this sentence for the time spent incarcerated

lT lS FURTHER ORDERED that the said MICHAEL RENARD WEBB having` in the 7”’ Disrrict Court of Smith County Texas‘, in Cause No. 007~
0447-|1, been duly and legally convicted of the offense or'Aggravated Assauit On Public Servnnt and punishment thereof having been assessed and
adjudged at confinement m thc Texas Dcpartment ofCriminal lusticowstirational Division for LIFB, and lie having on the 20"' day of Apr‘il, 2012,
by the said Court been sentenced m accordance with said conviction1 l'l` lS FURTHBR ORDE`.RED AND ADIUDGED that the punishment herein
adjudged against the Defendanc MlCHAEL RENARD WEBB shall begin when dre§udgmenc and sentence in said Cause No. 007~0477~1 l shall

have ceased to operate

ent nd made a pa hereof,

   

g Attachment A, Order to Wltbdraw Funds in incorporated into t

Signed and Ordered on this g day of Apr'i!, 2012.

 

o BLE xERRir 1. Russi‘~ftli.
Ju PREerrNG

   

Right Thurnbprint:

25

EXHIBIT

B

19

 

.».».. . ,

 

 

 

 

lr')lSFlt‘-§égctq ‘ `
DlSTRiC`T cig;§;<
cause NuM_BE_n 007-044_81-:1 1-.A ; .
cAUs'E NuMBER oov-oat;o-ia-A€l§ll££ ~8 Pn i.= 51; _
c;AusE NuMBER 007-0450.- ,

 

E~xPAR'rE § m me -~

MICHAEI. RENARD WEBB § SMITH COUNTY, TEXAS

 

~S'I`ATE~' 5 SUPPLEMENTAL ANSWER IN OPPOS'l'I’ION
TO APPL!CATION FOR WRI,T OF HABEAS CDRPUS

 

To rita HoNoRABLF. CouRT:

Pui"~'sua°r'i't to article 11.07; section 3 of the Texas' Code of Crimi'n_al
Procedure, the State, acting through the undersigned Assistan_t Criminal
District Attomey, urges the Court to find there is no necessity fora hearing on
any of applicants alleged grounds for relief and to recommend relief be
denied..

STATEMENT OF THE CASE

The applicant, MIC_HA_EL WE_BB, was indicted in cause number oo7~o448.-
11, oo_7-0449-1'i, and 007-0450-11, filed in the 7th Di_stj_rict Cour_t_ of Smith
Co`unty, Texas, for the offenses of ` possession of cocaine with the intent to
deliver, possession of cocaine in a drug-free zone with intent to deli`y"'er,
possession of cocaine in a drug-free zone with intent to deliver, respectively

On 19 March zoiz, applicant, with his counsel-, entered nonnegotiath pleas of

47

guilty in each case in a single hearing Based on his pleas, the Court found
applicant guilty of the offenses as alleged in the indictments a°nd sentenced
him to confinement for 30 years i'n the Texa‘s Departme'nt of Crimina'l`
]ustice-=~lnsti_tution_al Division in Caus_e Numb;er 007-0448-11, 40 years in
Cause Nun'ibe'r 007~0449-;1, and 20 years in Cause Number 0'07‘-450~11,
without a fxne.».' The Twelfth Court of Appeals affirmed applicant's convictions
o'n 25 June 2013. Webb v. State, Nos, 12-12~00175-CR, 12-12~00176-CR, 12-12.-»
00'177-CR, 1`2-'1‘2.-001"7'8-CR, 2013 'I"ex-. lApp L_E_X__I;S 769_2.» (Tex. App.-__-Tyler' june
.25, 2013, no pet.) (mem. op.,; not designated for pnblic_a,tion);. The State timely
filed its response and, as applicant alleged that he received ineffective
assistance from his trial counsel, Gregory A. Waldron and Tonda L_. Curry, the
Court granted the State’s request for a designation of applicant's first and
second grounds for future resolution.. In. compliance with the Court’s
designation order, Mr. Waldron and Ms_'. Curry filed their aMdavits on 10
November and 18 Nove`r`nber 2014, respectively,
' STATEMENT oF F~Ac'r.s

The State challenges all factual allegations made by applicant in his writ

application and specifically denies that he is entitled to relief on any of his

claims

48

APrucANT’-s AttscATloNs

Applicant alleges two separate grounds for relief: (1) involuntary plea due
to the ineffectiveness of trial counsel; (_a) ineffective assistance of counsel for
failure to properly investigate the facts of applicant's case, among other
reasons`; and (3) that the Court abused its discretion in conducting a group
plea session `These claims are denied.
STANDARD or Rrvlsw FoR._INsFFEcTn/ENESS CLAIMS AND API>L!cANT"s BuRDBN o'F PRoot-'

l'n a habeas corpus proceeding the burden of proij is always on the
applicant Ex parte Ra’ins; 555 S,'W.;zd 478 (Tex_. Crim. App. 1977). lt is thus
applicants burden to “prov'e by a preponderance of the evidence" that the
alleged errors ‘~‘contril')'ut`ed to his conviction or punishment;.'z E)_c parte
Williams, 65 S.W.3d 656, 658 (Tex. Crim. App.~ 2001). I_n order to prevail, an
applicant must present facts that, if` true, Would entitle him to the relief
requested Ex parte Mgldon_ado, 688 S_`.’W.;d 114, 116 (Tex. Crim. App. 1985).
Reli'ef may be denied 'if the applicant states only conclusions, and not specific
facts. Ex' parte McPherson, 32 S..W;gd 860, 861 (Tex._ Cri_r_n_. App. 2000). ln
addition, an applicants sworn allegations alone are insufficient proof of his

claims Ex parte Empey, 757 S.W.2d 771, 775 (Tex;.- Cri`m;.~ App.- 1988).

49

To prevail on a claim of ineffective assistance of cou_nse_l, an applicant must
meet the two-prong test articulated in Str`iclcland v. Wash'ington`, 466 U.~S. 668
(1984). Specifical'ly, he must show: (1) deficient performance in that his
counsel’s representation fell below 'an objective standard of reasonableness
under prevailing professional norms an'd (2) prejudice or `a reasonable
probability that, but for counsels deficient performance the result of the
proceeding would have been different _Id. at 687-88, 6’94. "A reasonable
probability is a probability sufficient to undermine confidence in the
outcoine" Id. '“[W]hen a person challenges the validity of a plea entered
upon the advice of counsel, contending that his counsel was ineii`ective, the
voluntariness of the plea depends on (1) whether counsel's advice was within
the range of competence demanded of attorneys in criminal cases and if not,
(2) whether there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty to the charged offense and would have insisted
on going to trial.” Ex parte ngrx‘ngton, 310 S,ng 452, 458 (Tex_. Crim,, App.

2010) _(_internal quotation marksaon`ii`tted).

l, §Roijz€!}j) O`Nji-:: Trial counsel Was not:ineiféctive for~advising applicant that his l
sentences in each case could be Sta_cl<_ed even though the offenses arose during
the same criminal episode
In his first grou,n_cl_-, applicant argues that his plea wa`s involuntarily entered
due to the ettone_ous advice of his counsel that his sentences could bie stacked
even though the offenses were committed during the same criminal episode
(Wri_t Appl. 6.-7). Article 42,._08 of the Code of Crim'inal Procedure provides in
pertinent pai'l§:-
Whe'n the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one Convlction;, E_)_ccept as provided by
Sections (b) and (c) of this article, in tl_i_e discretion of the court, the
judgment in the second and subsequent convictions may either be that
the sentence limposed o't suspended shall beQ'n when the judgment and
the sentence imposed or suspended °i'n the pi‘ec`eding conviction has
ceased to operate, or that the sentence imposed oi‘ suspended shall run
concurrently With the other case or cases, and sentence and execution
shall bic-accordingly . .. .
Te).c_._ Code Crim. Proc. Ann. art.. 42..08(a) (West 2014). How.ev'e’r, "‘['w]he"n the
accused is found guilty of` more than one offense arising out of the same
criminal episode prosecuted in a single criminal action, a sentence for each
offense for which he has been found guilty shall be pronounced Section

3.03(a) only prevents cumulation of sentences for offenses arising out of the

same criminal episode when they are prosecuted in a_ single trial or plea

51

proceeding Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim A_pp. 1995). As
nothing prevented the State from prosecuting these cases in separate _
proceedings trial counsele advice regarding the cum‘\'il`ation of applicant's
sentences was not erroneous See id. 'l'h'erefore, as applicant has failed t'o
prove, by a preponderance of evidence, that his trial counsel’s advice fell
outside the range of competence demanded of attorneys in criminal cases, his
first ground for relief should be denied

lI. GROUND "I`WO: Applicant has failed to prove ' that his counsel’s
performancewas deficient for any of the reasole he has alleged_._

In his second ground,, appellant complains that his counsel was ineffective
for failing to obtain an investigatoi~, failing to thoroughly investigate the facts
of his case before advising him to plead guilty, failing to determine that the
State’s evidence did not include his fingerprints or DNA on the drugs, and
failing to object to the group plea session ('Writ Appl_, &9). Fi_rst, applicants
trial counsel did in fact hire an investigator to determine the extent of the
victims impairment from his injuries as it related to the issue of serious
bodily injury (At_ta_ch. 1»2.). Further, applicant fails to show, from facts
contained in the record, what a more thorough investigation would have

shown or how such evidence would have affected his decision to plead guilty
`6

52

 

(Writ Appl. 8-9). See Mooney v. State, 81'7' S.W.z'd 693, 697 (Tex. Crim. App.
1991) (no ineffectiveness where appellant failed to establish what, “if anything
counsel could have learned from a more thorough `iiivestigation.l’). La'stly',
applicant fails to provide any-authority for the proposition that his group plea
session was somehow improper. See Ex parte Wilson, 716 S.W.2d 953, 956
(Tex.. Crim. App. 1'986) (pr'esurnption of regularity with respect to guilty pleas
under article 1.15 of ' the Code of Crimi'n_a_l Procedure)~; $hipley v.\ -State, 838
S.Wzd 475, 480 (Te')‘c. App.--El Paso 1992; pet, tef’d) (citing McMiIlan y. State',
727 S.W.2d 582, 583-84 ('l`ex. Crim-.,App. 1987) (“[A]_n accused who is apprised
of such rights, even when given in a group plea session, shall he found to
adequately understand those rights.”). Accordingly, appellant has failed to
carry his burden under Strickland.’s first prong to show that his trial counsel’s
performance was deficient, and his second ground for relief should be denied ..

III. GROUND 'I'HREE-: By failing to object at his plea hearing applicant has
forfeited hist challenge to the group plea -ses'sion,

In his third ground for relief, applicant argues that the Court abused its-
di_scret`ion in conducting a group plea admonishment with applicant and
another defendant simultaneously (Writ Appl. 10). As appellant did not raise

an objection to the procedure during the hearing or raise the issue on appeal,
7

53

he has forfeited any alleged error for review, and his third ground for relief
should be denied. See Ex` parte Bag!ey, 509 S.W.2d 332, 333-334 (Tex. Crim.
‘APP-1974) j
PRAYE§R
WHEREFORE, PREMISES CONSIDBRE_D, the State prays fh.a..'.f the Court
find that there a`_re no controverted»,- previously unresolved facts material to
the legality of applicants confinement; that there is no necessity for a fact-'
finding hearing as there is ample evidence in the record i`or the Court to rule
on the relief sought; and that the Co_ur.t enter Findi'ngs of Fact and
Conclusions of Law, n recommend denial of the relief sought, and send
applicant hence without delay.
` Respectfully submitted
D. MA'I'I` BlNG'HAM

1 Crin_iina_l Distri.c,tAtcomey
Smith County, Texas

_`
/,
f

/

 

 

'ALA`RON §§EISIKER ` " m
Assis`tant Crim'inal Dis_il‘i'ct“Attomey
SBOT ~#:'.24046`692

xoio North Broadway, .4th Flo;or
Tyler, Te'x`as 75702

Phone': (90'3) 590-1720

Fax:; (9.03) 590~171`9'

8

54

EXHIBIT

C

20

ra~l:_o.- row u_a;nu:_:m p_.m. ¢c~-»'/~.eulo arc

CAUS_E NO. 007~0449-11

srArE oFrExAs § 7"~‘ summit nrs'rmcr count
Vs. § I'N ANi) ch`>'l'i
MICHAEL RENARD wr,us § smu couNrY-,- rEx-As

 

rsa causal has reviewed luiwa ama webb’s Applibaadn for a Writ of Habe'as
Corpus in Cause # 007-,0448.-.11 and submits this adidavit in response to the claims made.by
Wehb. Cou`n"sel was retained to represent Mi'chael Re`nar`d Webb on his 5 cases tim he had
pending in Smith County, T.X. Webb made the decision to go to trial before this court on~ the
aggravated assault charge, Cau`s'e No. 007-0447-11, in 2012.. Webb was foim;d guilty by this
court and sentenced t_o life in prison Webb had four othec'cases pending, three to which he pled
and one that was dismissed Cot`t'izs`el had lengthj,`r discussions \`=,`vith Webb regarding how to
proceed with trial and Webb agreed with counsel’s trial strategy. Counsel also had discussions
with Webb regarding the potential of stacking of sentences after his conviction for aggravated
assault lt `i_s still counsel’s position that Webb’s sentences could have been stacked. Only one of'
_ the three drug cases for which he received penitentiary time occurred on the same d_a_te as the
aggravated assault The other two cases occurred on separate dates approximately 9 months
prior to the aggravated assault Counsel believes the exposure to stacked sentences was very
much a real possibility based on Art. 42.08 o_f`the Code of Criminal Procedmi‘: and Penal Code `

§3.03 and the facts of the case. Punhermore, this case.alleged the offense occurred in a drug free

58

 

 

 

 

»
'_J_l__:U-l°°“ ui¢*‘a\~ Pol"¢ l l_'| I."'¢\Jl.’ -|IU

.’

§ Zone, which also created an issue with stacking sentences Webb’s claims are mdofl’ct:t. and
meritless
A private investigator was not warranted `i_r_l these cases. Seveijal of the drug cases were
controlled buys with video/audio evidence pr`ov"ide`d to counsel that, substantiated Webb’s
involvement
At no point did Webb object to having his plea taken with od;,e_rul_l_rcl_e_.tcd defendants

The court questioned him in detail regarding this fact-.

Gregory A-.~ Waldron, State Bar- No. 00788598 .
Holmes & Moore, P.-_L_.~_L.C-.
P.O..B_o)`< 3267

 

Longview, Tex`z`is 75606
Telephoae: (903) 75.3-22`00
Fa;t N_e. {903) 758-1864

59

-'J"JJE._I°\F‘ vio'&'JJ'l¢llh 11"|1,".°‘\¢!. Jl\l

` s'rA'rE oF TEXAS §

COUNTY OF GREGG § _

BEF.ORE ME this daie`piersonally appeared GREGORY A- WAIL.DRON, trial counsel for
the Defendan_t in t_l;e a__bcv_e entitled and numbered cause, who upon oath stated-as follows:

“ f am the attorney fo_r the Defendant in the above entitled and numbered cause Iha_ve
read the makers contained m this A&idavit m Responsc to Writ ofHabeas. Corpus, and all
_ allegations therein are true and correct."

ATTORNEY POR DEFENDANT

swoRN To AND sstcR`rBI'-:D BB`FORE ‘Mr~: on this we 17°‘ day amax/amber 2_014.

fhng fan Zéé'¢

§ 6 ’“°§MQNMES l NOTARY PUBLIC, sTATa oF TEXAS'

 

CERTIFICATE QF SERVICE

As attdrhe'y ofiecc)`r_d` for` Defenda`r'ir, I do hereby cjerti'f`y that a true and ¢¢rrejct copy of the l .
above and foregoing document was fomarded to the.Smith County District` Attdmey’s office this

rhal')‘” day omemr>er,.zom.

AUORNE¥ non DBFENDANT'

60

dau:?.|d.: r .3 .. . 24 1 .>»d.
`, . ,..,.,_...,§r.!.§.n ._ 1 . ..,

 
 

EXHIBIT
D
2 1

 

 

CAUSE ND. 00'7-.0449-,11 _ 'L§js pb¢pp.;
credit or ma rp gets ;-, 3. mo mo T_,_¢
er , _ oer>mv

same orm_ta_s § 1"5‘ woman msi';uc':'hcoonr

 

 

 

 

vs. § ns AND iron

MICHAEL mm wasn § show coUNj_'rY,t TEXA~s

 

Tn`.al nominal has reviewed M'ichae_l Renatd deb’s Appheehm fdir'a Writ cf Habcas
corpus in cause # 001-0450-1`1 rod dismiss this station in response to th_c simms made by
Webb. Cetmsel was retained to represent Mich.ae.l Renard Webb on his '5 cases that he had
pending in Smith County, TX. Webb made the de¢ision to go t'o trial before this oo`lift on the
aggravated mont chargo,. cross No. 007-0447-'11, in 2‘012. Wooh was found guilty by this
cain-t and mccord to life in prison webb had four othcr cases pending thr‘e;r to whi¢h.hoptod
anders motors disposed '

Conosci had lengthy discussions with Webb regarding how to proceed with trial and
Webb ahead with counst ton snotogy. comer also had discussions with webb regarding
tire mistrial cfstasltmg of aeatmees nder his sanitation far aggravated assnil.t.- lt is still

counsel’s position that Webb’s sentencesde have:bee_x_x stacked

68

 

 

 

cciaisei believes the expcsttre to steam ' seateoaea‘ was very much a real possib' " 'ii'ity
basedonArt. 42.08_ ofth_¢ Cod¢qungriin_iil Procedure and Petia_l Coder_§3.03.a_nd die-facts ofthe

At_it.c pt>hitdid Webb objectt.c havit_t'sh.ispleataltea with cthernmeweddefetdent`s-
mcnatt deem "' petition iadatai‘iregadia" gthi‘sfaet,.

Webb’s other accusations about counsel mouih.` ' ing answers tt`) Bef:ndant` ' are outrageo" " fm
ahd. false l.ftht.s Ce`\itt had dealt anything close tn that it would have timelian stopped the

Plee$'.

  
   

 
  

_ ,'
'-.aseI,-eatte ~
Tyler~, Tit 75701
assessedan
oosessas§ds
Ba'r;Ne.O$.Z'?'S‘¢'OO

69

 

     
   

 
   
 
  

   
       
   

 
 

 

. STA_TE OFTEXAS §
§
COUNTY QF'SMITH §
BEFORE ME this date personally appeared Tonda L Curry, trial ediz'nsel_ for die
Defendantin the.abojve~mtitled,and numbered eause; who iipo'n oath stated as follows:
I am the:attomcy forthe Defendant in the above entitled an`d~numbered cause Ihav"e
read thema'.`uers contained.in this ' `-- ` ' ' _ '~ _nseto WritofHabeis Céfpli'i»and all
anegaaans therein-m me ana - 4
SWORN'TO AND:SUBSCRIBED BBFORB ME ‘on this the 17'“ day of Ndv`en`lb£f 2014..
MYF§§;{‘,L",‘§_‘{ZY 2_§‘1"3 No"rARY PUBLIC, s"rATE csra-ms
§

70

 

