Billy Ray_Richardson/#1129102

James Allred Unit ~ _ ‘cq.;
2101 FM 369 North qL-h')q 0

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Clerk of the Court of Criminal Appeals ~ gp
P.O. Box 12308, Capitol Statlon ~ _ AJO ()7 2015
Austin}Texas 78711 `

 

 

zRe: Richardson v. State, Cause No§WOl-75463-L(D)

 

 

Dear Clerk:

 

Enclosed for your usual filing in the Honofable Court, you°will find a copy of

 

the applicant‘ s Reply to the State' s Response to applicant' s application for

 

`a Writ of Habeas Corpus. Please notify the applicant upon the filing of this

 

document as soon as possible.

 

Thanking you in advance for your helpful assistance.

`. God Bless!

 

` Sincerely

 

 

 

 

 

 

 

 

 

 

 

 

 

cause Noiw01-75463-L(D)
Ex Parte In The Texas Court of

Billy Richardson Criminal Appeals

W¢Ov¢O¢¢O°¢O’J

APPLICANT'S REPLY TO THE

STATE'S RESPONSE

Comes now, the applicant, in the above-entitled cause and respectfully submits
his Reply”to the State's response to applicant's application for a Writ of

Habeas Corpus.
APPLICANT'S REPLY

On §hily 22,2015, the State submitted its response to applicant's application
for a Writ of Habeas Corpus in which the State erroneously found that applicant
does not meet any exception to file a subsequent writ and recommend that the
instant writ application be dismissed as a subsequent writ.

On July 24,2015, before the applicant could submit to the court his Reply/
Rebuttal to the State's response, the trial court judge signed an order finding
no controverted, previously unresolved factual issues requiring a hearing and
also recommend that applicant's writ application be dismissed. However,

the State‘s finding, which led up to the trial court's recommendation for
dismissal) is not supported by substantial facts in the record and was so

deficient that it resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the proceeding.

In applicant's fourth writ application, he states a clear and compelling case of
actual innocence in which he shows that the constitutional erros committed by his
trial counsel and the prosecutor "probably resulted" in the conviction of the
applicant, who is actually innocent. See Schlup v. Delo, 513 U.S. 326-327(1995).
The State, in its response, established that "a meritorious claim of actual
innocence is an exception under Sec.4(a)". The applicant raises only one ground
for relief in his writ application: ACTUAL INNOCENCE,;Applicant's "distinct
claims" of prosecutorial misconduct, ineffective assistance of trial counseli
and that the complainant made contradictory statements about the alleged offense
are not actual grounds for relief. However, because it is the burden of the
applicant to show that the constitutional errors committed "probably resulted"
in his conviction in which he raises a Schlup-type claim of actual innocence,
applicant argues prosecutorial misconduct and trial counsel's failure to motion
the court to a hearing outside the presence of the jury, in his writ application,
only to point out the constitutional errors committed; in conjunction with his
Schlup-type claim of actual innocence. Likewise, applicant‘submitted, in his
writ application, that the complainant made contradictory statements about the
alleged offense, as one of the many factors against the State's case against the
applicant, merely to show why no rational juror would have found him guilty
beyond a reasonable doubt, had it not been for the improper use of applicant's
false statement and/or had the court known of the false nature of the said
statement before it was improperly introduced by the prosecutor.

Furthermore, although the applicant submitted the constitutional errors'
committed by his trial counsel and the prosecutor in his third writ application,
as they are presented in the applicant's current writ application, such claims

were neither entertafnedwby'the;courtrnbrywere they resolved by the

'~¢

court and instead, applicant's writ application was dismissed as

a subsequent writ. Here, the applicant invokes the actual inno-

lcence/ fundamental-miscarriage of justice exception of Schlup v.

Delo, as a gateway for having his otherwise barred constitutional
claims heard. See Gomez v. Jaimet, 350 F.3d at 673,679(7th Cir.
2003), Griffin v; Johnson, 350 F.3d 960-962(9th Cir~2003).
Notwithstanding, because the applicant has raised a colorable
claim of actual innocence in which he has shown that the consti-
tutional errors committed by his trial-counsel and the prosecutor
probably resulted in applicant's conviction, the restrictions
that ll.O7, Sec.4 places on subsequent writs should not apply to
the applicant for which, his actual innocence claim is an excep-

tion under Sec.4(a)..

Actual Innocence

In applicant's Schlup-type claim of actual innocence, he submits,
and the record supports, that the prosecutor improperly and
wrongfully excluded material facts from the applicant's false
statement to police, as to the allegation where the applicant
falsly stated that he and other relatives had sexual intercourse
with the complainant more than once prior to the alleged offense,
for which, such false allegations would have rendered applicant's
false statement inadmissible where the fact-finder would have
found that the false statement was not truthfully or voluntarily

made. The applicant also points out, in his writ application, that

despite the prosecutor knowing that the complainant had no sexual past prior
to the night of the alleged offense, in which the complainant and her mother

both established in a videotaped interview with a detective and at trial that
the complainant was a virgin the night of the alleged offense, the prosecutor
filed a motion in limine concerning specific instances of the complainant's
past sexual behavior pursuant to Rule 412 of the Texas Rules of Criminal
Evidence in which, the prosecutor asked the court to instruct the applicant
and his trial counsel not to refer to any specific instances of the complains
ant's past sexual behavior in the presence of the.jury; This was clearly an
attempt, by the prosecutor, to secrete the false nature of the applicant's
statement from which the jury would have been acknowledged as to the falsity
of the said statement and that such statement was not truthful and was not a
true confession of guilt. In doing this, the prosecutor was able to succeed
in improperly and wrongfully legitimizing applicant's false statement and
introducing the false allegation in the statement, as to the alleged sexual
intercourse being consensual, as a confession of guilt, despite that allega-
tion also being totally untrue, according to the complainant and the facts

of the case. This was only done by the prosecutor in order to accommodate

the State's burden of proving sexual intercourse where the State was entitled,
by law, to prove penetration beyond a reasonable doubt.

Furthermore, the State, in its response¢ acknowledges that applicant's claims
of constitutional violations refers to the prosecutor's failure to correct
applicant's false statement and that the prosecutor improperly introduced the
false allegations in the statement as'a true confession of guilt. The State¢
subsequently insists that it is unaware of any constitutional

provisions that would bar a prosecutor from introducing a false

 

statement as evidence of guilt. First and foremost, the State's contention

in regards to there not being any constitutional provisions that would bar a
prosecutor from introducing false evidence is a miscalculation of law and the
U.S. Constitution. introduction of any false evidence that could potentially
mislead the jury and/or effect its finding of innocence of a person who is
innocent of an alleged crime clearly violates that persons guaranteed right
vito "enjoy a fair and just trial, by an impartial jury". (U.S.C.A.Const.Amend.G)
Furthermore, all defendants, in all criminal cases, are protected against the
introduction of evidence obtained in violation of their constitutional

rights See Garza v. State, 678 S.W.Zd 183(App.4 Dist.l984) The Texas Court of
Criminal Appeals and the United States Supreme Court has ruled in similar
cases that false evidence corrupts`the truth seeking function of trial and
that false evidence, left uncorrected, can mislead the fact-finder, thereby
misdirecting the due course of law and diverting due process from its intended
progression towards a just and fair trial. See Daggan v. State, 778 S.W.Zd
469(Tex.Cr.App41989), Berger v. United States, 295 U.S. 78,88,55 S.¢t. 629,633,
79 L.Ed 1314,1321. Although there are no constitutional provisions that would
bar a prosecutor from introducing true facts from a defendant's statement

that would constitute a true confession of guilt, _the applicant has ,' however,
established in his writ application and herein provisions, established in

both law and the UrS. Constitution, that would bar a prosecutor from intro-
ducing false facts as evidence of guilt and/or wrongfully misguiding the jury
by persuading the jurors into believing that the known false facts are true
when such facts have been proven to be false. This would be an act of perjury
on the part of the prosecution where Art.38.22} §4 of the V.T.C.C.P. clearly

establishes that " when any statement, the admissibility of which is covered

by this article, is sought to be used in connection with an official proceeding,
any person who swears falsly of facts and circumstances which, if true, would
render the statement admissible under this article is presumed to have acted

with intent to decieve and with knowledge of the statement's meaning for the
purpose of prosecution for aggravated perjury under Sec.37.03 of the Penal Code".
In addition, applicant submitted an affidavit, attached to his writ application
as an exhibit, in which he estblished that the false allegations in his statement
were fabricated only because the officer, who took the statement, promised to
help the applicant, in exchange for the statement, and manipulated the applicant
by telling him that mere consensual sex between he and the complainant was not an
actual crime and that if the applicant alleged, in the statement, that he and the
complainant had mere consensual sex, it would discredit the complainant's false
accusation rape. The applicant also established in his affidavit that the officer
told applicant to allege in the false statement that he and the complainant had
"been having voluntary sex" and that the complainant had also engaged in sexual
intercourse with other men prior to the night of the alleged offense, in order

to create a false image of the complainant and make it seem as though the
complainant was not as innocent as she had claimed to be. These material facts

in favor of the applicant were never brought out in trial nor did the court
determine the truthfulness of applicant's statement in a hearing outside of the
presence of the jury before the false statement was erroneously introduced to

the jury as a true confession of guilt. Nevertheless, a "voluntary confession"
admissible in evidence should be voluntarily given and should not be forced or
extorted in any manner, even by overpersuation, promise, or threats. See Ward v.
State, 144 Tex.Crim.App. 444, 158 S.W.2d 516 Certiorari Granted, 62 S.Ct 1040,

316 U.S. 653, 86 L.Ed 1734, Reversed. Where applicant had made the false statement

upon promise of help, and where each of the allegations in applicant's statement
were fabricated with intent to decieve, then the false statement was not
admissible in criminal prosecution regardless of other grounds relied upon to
defeat its admission. See Oordes v. State, (Cr.App.l983) 158 Tex.Crim.App.529,
257 S.W.2d 704. The applicant has demonstrated that the prosecutor knew the
allegations in applicant's statement were false and covered that fact up by
mischievously excluding material facts that would have prevented the false
statement from being introduced as a true confession of guilt had the court
known of the falsehood of the statement, to secrete the material facts so that
the false allegation, as to the alleged sexual intercourse being "voluntary",
could be improperly utilized to prove an element of the charged offense that
the State was required, by law, to prove beyond a reasonable doubt. Further-
more, applicant has also cited provisions, in his writ application, set by the
United States Supreme Court in which the prosecutor is held responsible for
correcting known false evidence "even if the prosecutor actually knows the
evidence is false or not". See Daggan v. State, at 465 (Tex.Cr.App.l989),
U.S.C.A.Const.Amends.§;14, Vernon's Ann.Tex-Oode Crim.Proc. art.2.01. In this
case, because the prosecutor actually knew the allegations in applicant'S_
statement were false and thus, sought to secrete that fact from the court in
order to have the said false statement legitimized as admissible evidence

for which, such false facts in applicant's statement would render the statenent
inadmissible due to its perjurious nature and incredibility, had the false
nature of the statement been established to the court before the statement was
improperly introduced to the jury, applicant's controverted issues are with
merit and are fundamental and should not be overlooked or dismissed simply

because the State chooses to deny the truthfulness of the applicant's claims

and where the State refuses to settle the issues of the applicant's claim of

actual innocence.

CONCLUSION

The applicant has demonstrated that, becauseyof the many factors against the
State's case, without the improper admission of applicant's false statement,
no reasonable juror would have found him guily beyond a reasonable doubt.
Therefore, applicant respectfully urges the Honorable Court to reject the

State's request for dismissal and GRANT RELIEF based upon the facts that are

supported by the record herein.

Respectfully Submit

   
 

Y
TDCJ-ID#1129102
James Allred Unit
2101 FM 369 Kbrth

Iowa Park,Texas 76367

encl.

cc: file

Certificate of Service

I certify that a true copy of this document was served on the Criminal District
Court No.5 and the Texas Court of Criminal Appeals on July 31,2015. Service was
made by Certified Mail to the Clerk of the Court of Criminal Appeals, P.O.Box

12308, Capitol Station, sustin,Texas 78711 and, to the District Clerk of Dallas

County, Frank Crowley Courts Building, 133 N. Riverfront.Blvd. LB12, Dallas,Texas

227 211 %./?i_

Bil WRay¢R&chardson

75207-4033.

