                                                                                     WR-83,168-01
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                      Transmitted 4/28/2015 3:59:59 PM
                                                                        Accepted 4/29/2015 8:53:09 AM
                                                                                        ABEL ACOSTA
                         WR-83,168-01 & WR-83,168-02                                            CLERK

                                 IN THE                                  RECEIVED
                                                                  COURT OF CRIMINAL APPEALS
                       COURT OF CRIMINAL APPEALS                         4/29/2015
                               OF TEXAS                             ABEL ACOSTA, CLERK




EX PARTE                                §            IN THE CRIMINAL
                                        §
                                        §            DISTRICT COURT OF
                                        §
LEANN WALLACE                           §            JEFFERSON COUNTY, TX


          APPLICANT’S OBJECTIONS TO THE TRIAL COURT’S
           FINDINGS OF FACT AND CONCLUSIONS OF LAW


TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      Applicant, LEANN WALLACE, by and through her attorney, Stanley G.

Schneider, files these objections to the trial court’s findings of fact and conclusions

of law and would show this Court the following:




                                            1
                             I.
                     ISSUES PRESENTED

1.   Applicant was denied due process by the trial court’s
     consideration as an aggravating factor the Applicant’s
     assertion of her right to counsel and right to remain silent
     when contacted by law enforcement prior to the filing of the
     instant charges as guaranteed by the Fifth and Fourteenth
     Amendments of the United States Constitution and as
     guaranteed by Article I Section 10 and 19 of the Texas
     Constitution.

2.   Applicant’s right to effective assistance of counsel as
     guaranteed by the Sixth Amendment to the United States
     Constitution based on trial counsel’s failure to investigate and
     present expert testimony concerning the Applicant’s risk to
     the community and the unique nature of the circumstances of
     this offense based on the complainant and her family’s
     relationship to the Applicant and her family.

3.   Applicant’s plea was involuntary based on trial counsel’s
     failure to investigate and present mitigating evidence on her
     behalf.




                                 2
                                   II.
                       ARGUMENT AND AUTHORITIES
                         IN SUPPORT OF ISSUE ONE

      The trial court entered findings of fact and conclusion of law and recommended

that relief be denied in this cause. This case presents the inherent problem with the

Court’s post conviction writ proceedings. Throughout the sentencing proceedings the

trial court noted that Applicant was not forthcoming when approached by the police

with the allegations. As noted in the writ of habeas corpus, the trial court questions

trial counsel and criticized Applicant for the fact that she did not immediately

confess.

      The same court that commented on Applicant’s silence at the time of contact

by law enforcement determined that she has not established with proof by a

preponderance of the evidence that her silence and failure to confess contributed to

her punishment. The Court presiding at the sentencing was allowed to determine his

own conduct and interpret the record.

      Throughout its findings, the trial court minimized the importance of expert

testimony and its own roll in determining the appropriate sentence.

      During the sentencing hearing, the trial court repeatedly commented on the

Applicant’s failure to give a statement to law enforcement during the initial portions

of the investigation. (RR 9 -10). The trial court criticized the defendant for not doing

                                           3
the moral and legal thing by going to law enforcement and confessing. The trial court

stated that the Applicant did not do the right thing by not telling the police about her

criminal conduct. (RR 10). The trial court was repeatedly informed that she did not

meet with the police based on advice of counsel. The trial court responded by stating:

      You’ve said it. She told the police she was going to give a statement. If
      you said that legal counsel urged her otherwise, that’s okay. There is no
      harm in that. The point being, though that I want to address that th e
      police came to you, not because of you, but because of the child who
      gave you an opportunity to first and you didn’t accept that. I don’t know
      what you were thinking but his house of cards was going to fall
      ultimately.

(RR 13).

      The trial court’s comments concerning the aggravating nature of the

Applicant’s failure to confess to the police when contacted constitutes an express

consideration of her Fifth Amendment right to remain silent based on the advice of

counsel. When the Court was informed that she did not keep her appointment with

the police to be questioned about an allegation of criminal conduct, the trial court

expressly stated that she should have not followed her lawyer’s advice and that to

confess her criminal conduct was the moral thing to do and not follow advice of

counsel. In Salinas v. Texas, 133 S. Ct. 2174 ( 2013), the Supreme Court again

recognized that the privilege against self-incrimination “is an exception to the general

principle that the Government has the right to everyone’s testimony.” Garner v.

                                           4
United States, 424 U. S. 648, 658, n. 11, 96 S. Ct. 1178, 47 L. Ed. 2d 370 (1976). To

prevent the privilege from shielding information not properly within its scope, we

have long held that a witness who “‘desires the protection of the privilege . . . must

claim it’” at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317

U. S., at 427, 63 S. Ct. 409, 87 L. Ed. 376). See also United States ex rel. Vajtauer

v. Commissioner of Immigration, 273 U. S. 103, 113, 47 S. Ct. 302, 71 L. Ed. 560

(1927); Hoffman v. United States, 341 U. S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118

(1951).

      The express invocation requirement also gives courts tasked with evaluating

a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons

for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980)

(“A witness may not employ the privilege to avoid giving testimony that he simply

would prefer not to give”); Hutcheson v. United States, 369 U. S. 599, 610-611, 82

S. Ct. 1005, 8 L. Ed. 2d 137 (1962) (declining to treat invocation of due process as

proper assertion of the privilege).

      Normally, as pointed out by Salinas, a defendant normally does not invoke the

privilege by remaining silent. In Roberts v. United States, 445 U. S. 552 (1980), the

Supreme Court rejected the Fifth Amendment claim of a defendant who remained

silent throughout a police investigation and received a harsher sentence for his failure

                                           5
to cooperate. In ruling, the Court explained that “if [the defendant] believed that his

failure to cooperate was privileged, he should have said so at a time when the

sentencing court could have determined whether his claim was legitimate.” Id., at

560. See also United States v. Sullivan, 274 U. S. 259, 263-264 (1927). A witness

does not expressly invoke the privilege by standing mute.

      Thus, in Minnesota v. Murphy, 465 U.S. 420 (1984), the Court held that the

defendant’s self-incriminating answers to his probation officer were properly

admitted at trial because he failed to invoke the privilege. 465 U. S., at 427-428. In

reaching that conclusion, the Supreme Court rejected the notion “that a witness must

‘put the Government on notice by formally availing himself of the privilege’ only

when he alone ‘is reasonably aware of the incriminating tendency of the questions.’”

Id., at 428, (quoting Roberts, supra, at 562, Brennan, J., concurring)). See also

United States v. Kordel, 397 U. S. 1, 7 (1970). The Fifth Amendment guarantees that

no one may be “compelled in any criminal case to be a witness against himself”; it

does not establish an unqualified “right to remain silent.” A witness’ constitutional

right to refuse to answer questions depends on his reasons for doing so, and courts

need to know those reasons to evaluate the merits of a Fifth Amendment claim.

      In the instant case, despite knowing the Applicant’s reasons for not confessing,

this Court repeatedly criticized her, chastised her and placed moral blame for her

                                          6
refusal to meet with the police and confess her criminal conduct. As evidence by Dr.

Gripon’s testimony this was a case that was not normal or ordinary. The Applicant

is not a bad person. Applicant is a good person who did bad things and that cannot

be viewed in a vacuum. The trial court’s expressed consideration of her refusal to

meet with the police and confess her crimes prior to the filing of any criminal charges

violated the Fifth Amendment of the United States Constitution. The trial court

missed the point and was able to reconstruct the proceedings to support his

conclusion that she was not harmed. The trial court failed to address any of the legal

authority presented that supports Applicant’s claim for release.

                                  III.
                      ARGUMENT AND AUTHORITIES
                  IN SUPPORT OF ISSUE TWO AND THREE

      Trial counsel admitted that he did not investigate the beneficial effect of expert

testimony as a mitigating factor in this case. Trial counsel stated in his affidavit that

the mitigating evidence was sufficient and an expert was not necessary. Only after

a complete investigation can an attorney make a sound strategic decision. Only after

reviewing the literature or communicating with an expert can an attorney that an

expert is not needed to present or explain the dynamics of a fact pattern.

      As evidence by the affidavits presented and Dr. Gripon’s testimony, trial

counsel’s strategic decisions were made without investigation or research of the

                                           7
science available that made a difference. The trial court stated that Dr. Gripon’s

testimony in retrospect would not have changed his opinion. Dr. Gripon’s testimony

clearly shows that Applicant was different from others and the situation presented

herein was unique.

      The relationship between Applicant and the complainant was unique. Trial

counsel decided not to present that testimony. The importance of that testimony is

evidence by the affidavits submitted detailing the relationship with the complainant

and the problems that arose because of that relationship the families and how the

constant gifts and presence of the complainant changed the family dynamics. Dr.

Edward Gripon, a forensic psychiatrist stated that based on his review of the

numerous records that his opinions are as follows:

      1.    Leann Wallace does not fit any known profile of a sexual
            predator.

            In fact, after reviewing this information, it is obvious that this
            conduct emerged from a very intense and intertwined relationship
            involving the members of the two families.

            Apparently, the very close relationship between Leann Wallace
            and the victim, was encouraged by a number of parties and,
            unfortunately, developed a sexual component.

            Leann Wallace continued to teach throughout the approximately
            4 years, that this relationship is stated to have occurred and,
            during that time, she was not involved in any inappropriate
            manner with any other student/youth .

                                         8
     This would appear to clearly indicate that this lady is not a
     sexual predator but that the relationship itself, arising outside the
     school setting, evolved into the ultimate physical involvement
     between the two individuals.

2.   The ultimate discovery/outcry in regard to this matter seems to
     have occurred sometime after the relationship ended and in close
     proximity to two separate factors.

     One was the involvement of the victim in some type of group
     setting in which individuals were encouraged to “confess/state
     any past issues involving “guilt.”

     Equally of importance, it also seems to be approximate to the
     time , in which there was a distancing/dissolution of a friendship
     between the victim and Leann Wallace’s youngest daughter.

3.   It is assumed and stated in the trial transcript that the victim has
     suffered “physical and emotional” damage of an extreme
     level/nature because of this relationship.

     Obviously, I’ve had no contact with the victim but I would state,
     based on clinical experience, that is an assumption that may not
     be based upon fact.

     Historically, I’ve found clinically, that relationships involving
     intense feelings even if sexual in nature are frequently not
     “emotionally damaging” to the extent that many laypeople
     assume.

4.   This relationship began as an intense personal involvement
     involving the two individuals and progressed to a relationship in
     which sexual activity was a part of the equation.

     In my opinion, based on regional psychiatric probability, if the
     relationship had remained one of a classroom i.e. teacher/student
     relationship, then it would never have progressed to the point

                                   9
            of sexual involvement. There is significant evidence that the
            relationship “developed” based upon the extremely close and
            continued involvement of the two families and is reflective of
            significant psychodynamic interactions between the two groups.

      5.    Leann Wallace does not pose a continued threat to the
            community in any predictable fashion.

      6.    It is obvious, based on a review of this information and an
            interview Of Leann Wallace, that this relationship was a very
            intense and codependent relationship that, unfortunately, became
            sexual as well.

      7.    In conclusion, although this involved a woman who was a
            teacher and a student, it is not based upon, in any fashion, a
            teacher/student relationship but, instead, is based upon an intense
            personal relationship, apparently encouraged by both families,
            that unfortunately crossed a significant boundary.

      8.    Also, I would add that given the intense emotion apparently
            present between these two individuals, a severe sentence
            unilaterally imposed upon Leann Wallace may have significant
            negative implication, ultimately, upon the alleged victim.

      Dr. Gripon’s habeas testimony presented a complete picture of Applicant and

separated Applicant from other sex offenders.        He attempted to explain the

circumstances of the offense. The trial court’s findings reflect his own bias.

      The Sixth Amendment to the Constitution of the United States guarantees the

right to counsel. Moreover, the Supreme Court has stated that the right to counsel

includes the right to effective assistance of counsel. McMann v. Richardson, 397

U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L. Ed.2d 763 (1970).

                                         10
       In order to provide effective assistance of counsel, an attorney must have a firm

command of the operative facts and of the relevant law. As was stated by the Court

of Criminal Appeals in Jackson v. State, 766 S.W.2d 504, 509 (Tex. Crim.

App.1985):

       A criminal defense lawyer must have a firm command of the facts of the
       case as well as governing law before he can render reasonably effective
       assistance to his client. Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim.
       App.1983); Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App.1982);
       Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). The
       responsibility of having a firm command of the facts of the case as well
       as governing law in order to assist and advise one criminally accused is
       not one placed on the State. See Woolridge v. State, 653 S.W.2d 811,
       n.7 (Tex. Crim. App. 1983).

(Emphasis in original). See also Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim.

App. 1978) (it is “fundamental that an attorney must acquaint himself not only with

the law but also the facts of a case....”).

       In Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), the Court of

Criminal Appeals was faced with a case where a decision to not call an expert was

dependent on the financial condition of the defendant. The court determined that if

an investigation of medical records to determine a child’s cause of death is essential

to the presentation of an effective defense, counsel cannot decline to conduct such an

investigation based on his client’s lack of financial resources. It relied on decisions

by the Seventh Circuit in Brown v. Sternes, 304 F.3d 677, 693-98 (7th Cir. 2002)

                                              11
(noting that “attorneys have an obligation to explore all readily available sources of

evidence that might benefit their client[,]” and concluding that counsel who had

access to defendant’s medical records “had a professional obligation to do an in-depth

investigation into their client’s deep-seated psychiatric problems”; failure to do so

was ineffective assistance of counsel); see also Bouchillon v. Collins, 907 F.2d 589,

595-97 (5th Cir. 1990) (trial attorney who failed to do any investigation into client’s

medical and mental history after he had been informed of prior hospitalizations and

who may have persuaded client to plead guilty and accept plea offer was

constitutionally ineffective for failing to make adequate investigation when it did not

appear that defendant had any other available defense). The court ruled that if any

reasonable attorney appointed to represent an indigent defendant would be expected

to investigate and request expert assistance to determine a deceased infant’s cause

of death, a privately retained attorney should be held to no lower standard. The

Briggs court stated:

      The vital guarantee of the Sixth Amendment would stand for little if the
      often uninformed decision to retain a particular lawyer could reduce or
      forfeit the defendant’s entitlement to constitutional protection. . . . We
      see no basis for drawing a distinction between retained and appointed
      counsel that would deny equal justice to defendants who must choose
      their own lawyers.

Briggs, 187 S.W.3d at 469 (quoting Cuyler v. Sullivan, 466 U.S. 335, 344, 100 S. Ct.



                                          12
1708, 64 L. Ed. 2d 333 (1980). In Wright v. State, 223 S.W.3d 36 (Houston [1st

Dist.] 2006, pet. ref’d), the First Court of Appeals applied Briggs counsel was

ineffective because of his nonstrategic decision in failing to seek an expert’s opinion.

      Clearly, strategic choices made after a thorough investigation of the law and

facts relevant to plausible options are virtually unchallengeable under ineffective

assistance of counsel claims. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim.

App.), cert. denied, Kunkle v. State, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993). However,

strategic choices made after a less than complete investigation because the State

withheld evidence undermined the Defendant right to the effective assistance of

counsel.

      In this case, trial counsel did not present any expert testimony that examined

the risk that the Applicant posed to the community or attempt to explain the dynamics

of the relationship between the Applicant and the complainant. The question that was

never investigated or addressed by trial counsel was how a person like Applicant who

provided so much help and guidance to so many cross the line and abuse a single

child. The conduct as set out at the sentencing hearing demanded an explanation.

Without an examination of the relationship from the outside looking inward, the

Court was presented with only half the picture. The sentence imposed expressed a

punishment based on the offense conduct a mitigating explanation. An expert could

                                          13
have provided that explanation. Trial counsel failed to investigate nor present that

explanation.

       Based on the Supreme Court’s decision in Strickland v. Washington,466 U.S.

668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), that she was denied effective

assistance of counsel based on trial counsel’s failure to obtain the assistance of an

expert witness to assist in the preparation of a mitigation case for punishment. In

order to “establish deficient performance, an accused must demonstrate that counsel’s

representation ‘fell below an objective standard of reasonableness.’” Wiggins v.

Smith, 539 U.S. 510, 521, 156 L. Ed. 2d 471, 123 S. Ct. 2527 (2003) (quoting

Strickland, 466 U.S. at 688). Scrutiny of counsel’s performance must be highly

deferential, and we must presume that counsel’s conduct falls within the wide range

of reasonable professional assistance. See Soffar v. Dretke, 368 F.3d 441, 471 (5th

Cir. 2004). Reviewing courts must make every effort “‘to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.’” United States

v. Harris, 408 F.3d 186, 189 (5th Cir. 2005) (quoting Strickland, 466 U.S. at 689). To

this end, a “conscious and informed decision on trial tactics and strategy cannot be

the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen

that it permeates the entire trial with obvious unfairness.” Johnson v. Dretke, 394

                                            14
F.3d 332, 337 (5th Cir. 2004).

      “[S]strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the limitations

on investigation.” Wiggins, 539 U.S. at 521 (internal quotation marks and alteration

omitted) (quoting Strickland, 668 U.S. at 690-91).              When assessing the

reasonableness of an attorney’s investigation, we must “consider not only the

quantum of evidence already known to counsel, but also whether the known evidence

would lead a reasonable attorney to investigate further.” Id. at 527. To establish that

an attorney was ineffective for failure to investigate, a petitioner must allege with

specificity what the investigation would have revealed and how it would have

changed the outcome of the trial. See United States v. Green, 882 F.2d 999, 1003 (5th

Cir. 1989).

      Even an experienced lawyer needs the assistance of an expert to prepare a case

for trial that has unusual fact or there are circumstances that need to be explained.

See Wiggins, 539 U.S. at 536 (finding that counsel is not in a position to “make a

reasonable strategic choice” when his “investigation supporting [that] choice was

unreasonable”); Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“Tactical

decisions must be made in the context of a reasonable amount of investigation, not

in a vacuum.”); Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) (finding that

                                          15
“our usual deference to tactical decisions is not relevant” when the decisions are

based on “information that was faulty because of [ ] ineffective investigatory steps”).

      Thus, without conducting an investigation as to the psychological basis for her

conduct, trial counsel could not properly advise Petitioner to enter a plea of guilty to

the offense contained in the indictment. McMann v. Richardson, 397 U.S. 759 (1970)

Tollet v. Henderson, 411 U.S. 258 (1973); Henderson v. Morgan, 426 U.S. 63&

(1976): Hill v. Lockhart, 474 U..S. 52 (1985). In this case, trial counsel made a

decision that included not to present evidence that explained the relationship between

the families and failed to consult with an expert to explain Applicant’s mental state.

The testimony of the expert and Applicant’s family would have explained her conduct

and her relationship to the complainant and would have tended to mitigate the

punishment assessed. Thus, at the very least, Applicant is entitled to a new

punishment hearing where the testimony of an expert can be presented.

      WHEREFORE, PREMISES CONSIDERED, Applicant prays that this Court

recommend that the Court of Criminal Appeals grant her requested relief and grant

her a new punishment hearing and any other relief for which she may be entitled.




                                          16
                                             Respectfully submitted,

                                             Schneider & McKinney, P.C.

                                             /s/ Stanley G. Schneider
                                             Stanley G. Schneider
                                             Texas Bar No. 17790500
                                             440 Louisiana
                                             Suite 800
                                             Houston, Texas 77002
                                             Office: (713) 951-9994
                                             Fax: (713) 224-6008
                                             E-mail: stans3112@aol.com

                                             ATTORNEY FOR APPLICANT
                                             LEANN WALLACE



                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the attached and foregoing

Applicant’s Objections to the Trial Court’s Finding of Fact and Conclusions of Law

has been mailed and/or hand delivered on the Appellate Section of the Jefferson

County District Attorney’s Office, 1001 Pearl Street, Beaumont, Texas 77701 and the

State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711 on this the 28th day

of April, 2015.

                                             /s/ Stanley G. Schneider
                                             Stanley G. Schneider




                                        17
