                                                                                WR-82,450-01
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                                Transmitted 7/30/2015 2:50:45 PM
                                                                  Accepted 7/30/2015 4:47:47 PM
                                 WR-82,450-01                                     ABEL ACOSTA
                                                                                          CLERK

EX PARTE                              §         IN THE COURT
                                                                   RECEIVED
                                      §                     COURT OF CRIMINAL APPEALS
DAVID CLIFFORD PEDDER, Jr.            §         OF                 7/30/2015
                                                              ABEL ACOSTA, CLERK
                                      §
                                      §         CRIMINAL APPEALS

                  IN THE COURT OF CRIMINAL APPEALS

    OBJECTION TO THE DISTRICT COURT’S FINDINGS OF FACT AND
                     CONCLUSIONS OF LAW

TO THE HONORABLE JUDGES OF SAID COURT:

      This application concerns a conviction from the 128th District Court,

Orange County, Texas. The Cause Number was: A100640-R. The Trial

Judge was the Honorable Courtney Arkeen. Applicant was represented at

trial by Bruce Smith (SBOT: 18543300). Judgment was entered on May 18,

2012 whereby Applicant was convicted of Aggravated Sexual Assault and

sentenced to forty (40) years.

      Applicant previously filed a pro se writ application to this Court, the

Cause Number was No. WR-82,450-01. On January 14, 2015, the Court of

Criminal Appeals, entered an order regarding evidence gathering. Applicant

filed an Amended Writ on April 10, 2015. At the Court’s direction and in

accordance with the Rules, Applicant filed his Memorandum in Support of

the Writ and accompanying affidavits and exhibits along with a proposed

Findings of Fact and Conclusions of Law.
         The State chose not to file any affidavits from witnesses and filed her

proposed Findings of Fact and Conclusions of Law on July 9, 2015, two

days after the deadline set by the District Court. Within twenty-four hours,

the District Court filed Findings of Fact and Conclusions of Law that

adopted – nearly verbatim - the State’s proposal. The District Court failed to

address three of the four issues raised by the Applicant and provided

conclusory assertions unhinged from the facts of the case and contrary to

clearly established State and Federal law. Resultantly, Applicant files these

objections to the District Court’s Findings and asks this Court to exercise its

broad power as ultimate fact finder in habeas proceedings to reach a

different result than the District Court.

      I. The District Court’s Findings of Fact and Conclusions of Law do
         not comport with the record, the evidence submitted as part of the
           writ, and disregard clearly established State and Federal law.


         In Ex Parte Reed, the Court of Criminal Appeals made clear that it

remains the ultimate factfinder in writ jurisprudence. 1 When the Court’s

independent review of the record reveals that the trial judge’s findings and

conclusions are not supported by the record or the law, the Court may




1   Ex Parte Reed, 271 S.W.3d 698, 727 (Tex.Crim. App. 2008).


                                           2
exercise independent authority and make alternative findings and

conclusions.2 This case necessitates that independent judgment.

       The District Court chose not to have any hearings on this matter and

simply asked the parties to submit affidavits.3 As such, the Court could not

observe the demeanor of the witnesses nor discern their credibility in person.

No deference should be given, then, to the Court’s assessment of witness

credibility.

       Trial counsel, whose performance was the subject of two of

Applicant’s issues, submitted a two page affidavit that failed to adequately

address the issues queried by the Court, much less the numerous

shortcomings raised by the Writ itself. The State chose not to submit any

affidavits or evidence to the Court, nor to refute or undermine the evidence

and affidavits submitted by the Applicant.

        1. Objection to finding counsel’s performance did not fall below
                        an objectively reasonable standard.

       In finding of fact number 18 and conclusion of law number 2, the

Trial Court concludes that Bruce Smith’s representation of David Pedder at

trial did not fall below an objective standard of reasonableness.            This

conclusion is not supported by the record. Bruce Smith failed to adequately

2
 Id.
3
 COPY OF SCHEDULING ORDER, Ex. 1. It is worth noting that the District Court
only requested proposed findings of fact and conclusions of law from the State.


                                        3
investigate the case, failed to file outcry witness and 404(b) motions,

allowed reams of inadmissible evidence go to the jury without objection,

failed to give an opening statement, fumbled his attempt to put on the

defense he thought was crucial to the case, performed little or no cross

examination of important State witnesses, and failed to call numerous

available witnesses to support his case.      The Court, though, makes the

sweeping conclusion that “Trial Counsel articulated plausible and credible

reasons for his performance in this case” without even addressing his

failings beyond his decision not to call additional witnesses.

      The Trial Court makes the conclusory remark that “Trial Counsel did

investigate and receive evidence from the State prior to the beginning of

trial” but fails to indicate what that investigation was. Of course, the Court

cannot support that conclusion with facts because there are no facts in the

record to support it. Smith could not recall whether he even looked at the

State’s file and the witnesses all indicate that he never spoke with them in

the years leading up to trial.

      And, Bruce Smith’s self-serving affidavit further illustrates the

distance between the Court’s conclusions and reality.        For example, he

indicates he “drove by” the shop where the alleged assault occurred, but he




                                       4
never went in.4 He drafted motions he never filed and did not actually file

any motions at all. In a first-degree felony trial, his performance amounts to

no counsel at all. He was merely a tour-guide to the Texas Department of

Corrections.


         2. Objection to finding that not interviewing or calling critical
                          witnesses was strategic

       The Court concludes, in finding of fact 13, that counsel elected “as a

trial strategy” not to call additional witnesses other than Don Freeman. The

record completely fails to present a strategic rationale for trial counsel not

interviewing relevant witnesses. It was counsel’s failure to investigate and

interview relevant witnesses that resulted in him not calling additional

exculpatory witnesses – not some well thought out trial strategy.


       The Court and the State both indicate that “trial counsel felt that the

witnesses he did call were most impressive and best witnesses to call” and

infer that additional witnesses would have been cumulative. First, the

affidavit of trial counsel does not address why he did not interview the

witnesses who submitted affidavits as part of the Writ. Secondly, though, the

only witnesses he did call were Don Freeman – who was there based on a

subpoena from the State – and the Applicant. The fact is, trial counsel never
4
 Baker’s Transmission is blocks from the courthouse and anyone driving from I-10 to the
courthouse would pass Baker’s.


                                          5
interviewed any of the sixteen other witnesses who submitted affidavits on

behalf of the applicant. And he first met with his purported key witness, Don

Freeman, the first day of trial.5 He provided no strategic reason for failing to

interview witnesses, much less calling them.6


       More particularly, Bruce Smith indicates: “Mr. Freeman in my option

[sic] was so convincing in what he was able to testify to that we made the

decision that it would not be necessary to take a chance and call other

witnesses who would simply be repetitive and redundant and would not be

as impressive to the jury as Mr. Freeman.”7 While Applicant strenuously

disagrees that could be a logical trial strategy, it is the logical result of a

completely inept investigation. To repackage this omission, years later, as a

strategic decision is the height of revisionist history. The plain fact is that

Smith did not interview or investigate these witnesses and was in no position

to assess whether their testimony would have been cumulative or valuable.


       The State and the District Court latch on to the notion of avoiding

cumulative witness testimony as a strategic decision too. Yet, the State

clearly does not believe that an effective strategy because it called a host of

witnesses to repeat the hearsay of the complainant’s story. And Bruce Smith
5
  See Exhibits H-L, N-W, AA-CC of Memorandum in Support of Writ.
6
  See Exhibit H (Bruce Smith Affidavit) of Memorandum in Support of Writ.
7
  See Exhibit H (Bruce Smith Affidavit) of Memorandum in Support of Writ.


                                         6
failed to object to it on numerous occasions. In fact, the State did not even

get to the complainant’s testimony on the first day of trial because it called

so many witnesses to bolster its case.


        3. Objection to finding that the outcome of the case would not
           have been different had counsel performed adequately

      The Court found, in finding number 20 and conclusion number 4, that

Applicant failed to establish that the outcome of the proceeding would have

been different but for counsel’s performance. This is obviously the only

conclusion the Court could reach after finding counsel’s performance was

adequate. However, it is likewise an unfounded and conclusory finding.

Any neutral observer, having reviewed the exhibits and affidavits submitted

by the Applicant would reach the contrary position.

      Had Bruce Smith interviewed the witnesses who prepared affidavits

he could have decided who among them to call at trial. It simply defies

logic that calling someone other than the business owner (who has a built in

bias) would have hurt him in front of the jury or seemed cumulative. Is it

really the District Court’s conclusion that calling the Sherriff as a witness

would have been cumulative and redundant? Or a woman? Or someone

who did not really even know the applicant and would seem particularly

unbiased? Put differently, if the Court or the District Attorney were charged



                                         7
with a first degree felony, would the representation Bruce Smith provided

David Pedder be acceptable for them?

       Moreover,      the    language     used     by    the    Court    indicates   a

misunderstanding of the law.            The Fifth Circuit has concluded that

reasonable probability of a different verdict need not be proved by a

preponderance of the evidence, but rather can be shown by undermining

confidence in the outcome.8 In other words, it need not even be proof that it

is more likely than not the outcome would have been different. The Court –

in one of its very few deviations from the State’s proposed findings of fact

and conclusions of law – seems to acknowledge the prejudice by conceding:

“Trial Counsel’s performance can be criticized in light of the result.” Given

the extremely limited representation provided by Bruce Smith and the

overwhelming evidence of impossibility submitted to the Court by the

applicant, confidence in the outcome of this case must be curtailed.


              4. Objection to finding regarding the alarm code


       The Court found that testimony was presented that Applicant did not

know the alarm code. But, the trial record indicates that the “alarm code” at

Baker’s Transmission was never mentioned before the jury despite the


8
 See Williams v. Cain, 125 F.3d 269, 279 (5th Cir. 1997). See also Applicant’s
Memorandum in Support of Writ, 9-10.


                                           8
State’s suggestion and the Court’s adoption that it was.9 This is important,

because Bruce Smith’s inept investigation did not include a visit to the store

or pictures of the scene. As such, he had no way of knowing there was an

alarm at all. In the Court’s rush to maintain its conviction, it clearly did not

actually review the record and simply adopted verbatim the proposal of the

State.


       II. The District Court’s Findings of Fact and Conclusions of Law
        neglect to address three of the four issues raised by the Applicant’s
                                         Writ

         The District Court did not address Applicant’s Strickland claim for

ineffective assistance at the punishment phase of trial. The District Court

did not address or make finding on Applicant’s Brady claim, even in

passing, and made no recommendation on that claim. The District Court did

not address applicant’s Actual Innocence claim. Each of these claims has

real merit and they were not considered at all in the Court’s findings.

                                III. Conclusion

         The District Court’s Findings of Fact and Conclusions of Law tracked

the language of the State’s proposal and were contrary to the record and

clearly established state and federal law. The District Court brought no

scrutiny to bear in a case where a citizen received inadequate representation
9
    Trial Court’s FFCL # 14.


                                       9
of counsel and received a forty year prison sentence as a direct result.

Additionally, the District Court neglected to address viable issues raised by

the Writ that deserve examination given the numerous problems with this

trial.

                                  PRAYER

         Based on the foregoing, Applicant asks this Court to conduct an

independent review of the record, exercise its independent authority, and

make alternative findings and conclusions in support of a new trial for David

Pedder.


                                      Respectfully submitted,

                                      THE GERTZ LAW FIRM
                                      2630 Liberty St.
                                      Beaumont, Texas 77702
                                      Tel: (409) 833-6400
                                      Fax: (409) 833-6401


                                            /s/    Ryan W. Gertz
                                      By:
                                        Ryan W. Gertz
                                        State Bar No. 24048489
                                        Attorney for David Pedder, Jr.




                                     10
