                                                                                       WR-83,575-01
                                                                        COURT OF CRIMINAL APPEALS
                                                                                         AUSTIN, TEXAS
                                                                        Transmitted 7/16/2015 3:44:28 PM
                                                                          Accepted 7/17/2015 8:11:54 AM
                                   WR-83,575-01                                           ABEL ACOSTA
                                                                                                  CLERK
                                 W401-80045-08-HC
                                                                            RECEIVED
EX PARTE                                       §                IN THE COURT
                                                                    COURT      OF APPEALS
                                                                          OF CRIMINAL
                                               §                           7/17/2015
                                                                      ABEL ACOSTA, CLERK
                                               §                CRIMINAL APPEALS
                                               §
CHARLES ATTERBURY                              §                OF TEXAS


           OBJECTIONS TO THE TRIAL COURT’S ORDER ON
      ATTERBURY’S APPLICATION FOR A WRIT OF HABEAS CORPUS

       In Atterbury’s Application for a Writ of Habeas Corpus, he argued that (1) his

guilty pleas were not entered knowingly, voluntarily, or intelligently, because his

counsel failed to inform him he had a defense to the charges; (2) his counsel was

ineffective in failing to investigate and learn as much; and (3) his counsel was

ineffective in failing to file a motion to recuse the biased judge who presided over

the State’s motion to revoke Atterbury’s probation. (Memo at 2-3).

       In recommending to this Court that it deny Atterbury’s application, the

district court found (1 & 2) counsel did inform Atterbury that the State had a “weak

case”; and (3) there is no evidence the judge was in fact biased. (Order at 2-4). But

characterizing the State’s case as weak is not the same as alerting Atterbury he had

a total defense to all charges. And the record clearly reflects the trial court’s biases.

Accordingly, Atterbury objects to the district court’s order.

 I.    A “weak case” is not “no case”

          a. Counsel’s advice was incorrect

       As to Atterbury’s claims that his guilty pleas were not entered knowingly,

voluntarily, or intelligently because his counsel failed to inform him he had a



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defense to the charges, and that his counsel was ineffective in failing to investigate

and learn as much, the district court initially noted, bizarrely, that “Applicant has

not specified what his defense to the allegations was.” (Order at 2). But the

remainder of the court’s order very clearly indicates it understood the defense: that

the State could not use Atterbury’s confession, alone, to convict him. See (Order at

1-3).

        Indeed, that is the failure Atterbury faulted. The court dismissed it, however,

because “[c]ounsel did advise Applicant that the State’s case was weak.” (Order at

2). Advising that the State’s case is weak is entirely different from advising that the

State’s case is hopeless, though. And that was just the case here. As noted in

Atterbury’s original memorandum, the only evidence of any offense came from

Atterbury’s own statement. (Memo at 10). And an extra-judicial confession is

insufficient to support a conviction absent corroboration. See, e.g., Chambers v.

State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993); Self v. State, 513 S.W.2d 832, 837

(Tex. Crim. App. 1974). The district court notes that counsel believed evidence of

the complainant’s “bed wetting and sexual behavior” could have been “used to

corroborate Applicant’s confession.” (Order at 1). But under the corpus delicti rule,

there must be “some evidence [ ] outside of the extra-judicial confession which,

considered alone or in connection with the confession, shows that the crime actually

occurred.” Salazar v. State, 86 S.W.3d 640, 645 (Tex.Crim.App.2002) (emphasis

added). And the complainant’s bed-wetting and sexual behavior is hardly evidence

of as much; it could be evidence of myriad things, or nothing. Counsel’s advice that




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the State’s case was “weak,” then, entirely failed to convey the reality: the State’s

case was non-existent.

      For the same reason, the district court’s secondary conclusion—that

Atterbury also failed to prove “by a preponderance of the evidence that he would not

have pleaded guilty but for counsel’s advice”—is meritless. (Order at 2). As to that

conclusion, the district court noted Atterbury insisted on pleading guilty despite

counsel’s advice that the State’s case was weak. (Order at 2-3). But, again, that is

just the point—Atterbury insisted upon as much because counsel informed him only

that the State’s case was weak, not that it was non-existent. Accordingly, because

the entirety of the district court’s conclusions as to Atterbury’s first and second

grounds are without merit, for all those reasons urged in his original application

and memo Atterbury respectfully requests this Court to reject the district court’s

recommendation and to grant him relief.

          b. Even if counsel’s advice was correct, whether he in fact
             advised as much can only be determined after a hearing

      Even if this Court were to find that counsel’s advice were close enough to the

truth, though, it should not, as the district court did, reject Atterbury’s application

based on counsel’s affidavit alone. For, whether counsel in fact informed Atterbury

that the State had a weak case is a credibility determination, presenting an “in

court” issue for the finder of fact. In a case that turns on issues of credibility, it is

inappropriate to resolve controverted facts without an evidentiary hearing where

witnesses are subject to cross-examination.




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      This Court has recognized this before. In Ex parte Byars, 176 S.W.3d 841

(Tex. Crim. App. 2005), Presiding Judge Keller noted that the most effective way of

determining the reliability of witness testimony is through the “crucible of cross-

examination.” Id. at 842 (concurring opinion). Similarly, Judge Cochran explained

for the Court in Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004):

      Affidavits . . . are widely and appropriately used in criminal and civil
      proceedings to determine if there are material disputed facts and to
      define exactly which facts are disputed. They are not always well-
      suited for resolving disputed facts.

Id. at 210 (footnotes omitted).

       Accordingly, in this case, the district court should not have decided that

Atterbury’s attorney’s affidavit resolved all the factual issues. Nor should the

court’s decision have been based merely on the fact that counsel was “well known to

the court.” See (Order at 1). This is an inappropriate way to make a credibility

determination. Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999), is

particularly instructive on this issue. In Gallego, the United States Court of Appeals

for the Eleventh Circuit stated:

      It is perfectly legitimate for the district court to find, based on all the
      evidence in the record, that a defendant’s testimony about his
      participation in a drug scheme is not credible. The magistrate judge
      here, however, based the decision on the fact that the defendant’s
      allegations were unsubstantiated and incorrectly found as a matter of
      law that defendant could not carry his burden without presenting some
      evidence in addition to his own word, which is contrary to that of
      counsel’s. The magistrate says nothing about the internal consistency
      of the defendant’s testimony, or his candor or demeanor on the stand.
      Indeed, the magistrate does not even state simply why the defendant’s
      lawyer is the more credible witness in this case. There is nothing in the
      report to indicate the magistrate weighed defendant’s credibility.
      Compare United States v. Camacho, 49 F.3d 349 (11th Cir. 1994) (court



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      made specific findings of fact after an evidentiary hearing regarding
      defendant’s credibility), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810,
      131 L.Ed.2d 735 (1995). The fact that defendant’s testimony is
      uncorroborated is not enough standing alone to support a credibility
      finding. Counsel’s testimony was also unsubstantiated by other
      evidence.

      While we appreciate the concerns enunciated in Underwood, we cannot
      adopt a per se "credit counsel in case of conflict rule," which allows that
      in any case where the issue comes down to the "bare bones testimony"
      of the defendant against the contradictory testimony of counsel,
      defendant is going to lose every time. We therefore remand for a new
      evidentiary hearing. Because of the intervening death of District Judge
      C. Clyde Atkins, the case will necessarily come before a different
      district judge. We suggest that in view of the nature of the case, if the
      matter is referred to a magistrate, it be sent to a different magistrate
      judge.

Id. at 1198-99.

      Valid judgments about credibility cannot be made from a review of a paper

record alone. Thus, even if counsel’s advice was accurate, the district court should

have ordered a live evidentiary hearing to resolve whether he in fact advised

Atterbury of as much. See, e.g., Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996)

(petitioner entitled to discovery when there is factual dispute which, if resolved in

petitioner’s favor, would entitle petitioner to relief, and the State has not afforded

petitioner a full and fair evidentiary hearing). Accordingly, on this basis, too,

Atterbury objects to the district court’s order and requests this Court to reject its

recommendation.

II.   The record clearly reflects the trial court’s biases.

      As to Atterbury’s third claim of ineffective assistance of counsel, the district

court concluded there is no evidence the judge was in fact biased. (Order at 4). As to




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this ground, Atterbury relies on his arguments in his original memorandum to show

that his counsel was ineffective in failing to file a motion to recuse the biased judge

who presided over the State’s motion to revoke Atterbury’s probation. Thus, as to

this ground, as well, Atterbury objects to the district court’s order and requests this

Court to reject its recommendation.

III.   Conclusion

       For these reasons, and all those urged in Atterbury’s original memorandum

in support of his application for a writ of habeas corpus, and in his reply to the

State’s response to that memorandum, Atterbury objects to the district court’s

order, respectfully requests this Court to reject the district court’s recommendation,

and to find that that his convictions for aggravated sexual assault of a child and

indecency with a child illegally confine and restrain him of his liberty. See TEX. PEN.

CODE §§ 21.11 & 22.021. His convictions were had only upon an involuntary plea

and the ineffective assistance of his counsel. This Court should thus issue the Writ

of Habeas Corpus,, set aside his convictions, and remand the case for a new trial.

See, e.g., Strickland v. Washington, 466 U.S. 668, 694, (1984).

                                        Respectfully submitted,



                                             /s/ Bruce Anton
                                        BRUCE ANTON
                                        Bar Card No. 01274700
                                        ba@sualaw.com




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      /s/ Brett Ordiway
BRETT ORDIWAY
State Bar No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Counsel for Applicant




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                               Certificate of Service

       I, the undersigned, hereby certify that a true and correct copy of the foregoing
Objections to the Trial Court’s Order on Atterbury’s Application for a Writ of
Habeas Corpus was mailed to the Collin County District Attorney’s Office and the
401st Judicial District Court of Collin County on July 16, 2015.


                                              /s/ Bruce Anton
                                        Bruce Anton




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