                                                                         WR-81,570-01
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                       Transmitted 2/9/2015 12:31:08 PM
                                                          Accepted 2/9/2015 1:47:35 PM
                                                                           ABEL ACOSTA
          IN THE TEXAS COURT OF CRIMINAL           APPEALS                         CLERK
                       AUSTIN, TEXAS
                                                                 RECEIVED
                                                          COURT OF CRIMINAL APPEALS
                                                                 2/9/2015
_____________________________                               ABEL ACOSTA, CLERK
                              )       Writ No.
EX PARTE                      )       WR-81,570-01
TEDDRICK BATISTE,             )
          APPLICANT           )
                              )
_____________________________ )


       APPLICANT’S REQUEST FOR REMAND TO CONDUCT
        PROCEEDINGS CONSISTENT WITH ARTICLE 11.071



                                BRAD D. LEVENSON (No. 24073411)
                                Director, Office of Capital Writs
                                (E-mail: Brad.Levenson@ocw.texas.gov)
                                RYAN CARLYLE KENT (No. 24090205)
                                (E-mail: Ryan.Kent@ocw.texas.gov)
                                Post-Conviction Attorney
                                Office of Capital Writs
                                1700 N. Congress Avenue, Suite 460
                                Austin, Texas 78701
                                (512) 463-8600
                                (512) 463-8590 (fax)

                                Attorneys for Applicant




                                  1
             IN THE TEXAS COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS


_____________________________
                              )               Writ No.
EX PARTE                      )               WR-81,570-01
TEDDRICK BATISTE,             )
          APPLICANT           )
                              )
_____________________________ )


          APPLICANT’S REQUEST FOR REMAND TO CONDUCT
           PROCEEDINGS CONSISTENT WITH ARTICLE 11.071

      Teddrick Batiste (“Batiste”), by and through his attorneys, the Office of
Capital Writs (“OCW”), respectfully requests that this Court remand Batiste’s
application for writ of habeas corpus and related materials to the convicting court
with direction to conduct a full and adequate fact-finding process consistent with
Article 11.071 in order to address the numerous controverted, material issues of
fact that remain unresolved in Batiste’s post-conviction litigation.


A.    Procedural History
      On May 1, 2013, Batiste filed his Initial Application for Writ of Habeas
Corpus (“Application” or “App.”) alleging seventeen points of error, including
thirteen claims of ineffective assistance of trial counsel.1      The State filed its
Answer on November 5, 2013. In its Answer, the State broadly “denie[d] the
factual allegations made in [Batiste’s] application, except those supported by



      1
       Those are Claims One through Nine, Claims Eleven through Thirteen, and
Claim Sixteen.

                                          2
official court documents.” (Answer at 1.) The convicting court 2 then ordered trial
counsel R.P. “Skip” Cornelius and Gerald E. Bourque to file affidavits responding
to the Application, which they did on February 5, 2014.3
      At a status conference on September 26, 2014, the court denied Batiste’s
request for an evidentiary hearing and orally ordered both parties to file proposed
findings of fact and conclusions of law by December 1, 2014, which deadline later
was extended (at the State’s request) to December 15, 2014. The court also issued
written orders to the same effect. Argument on the parties’ proposed findings of
fact and conclusions of law was heard on December 22, 2014. On January 21,
2015, and in full, the court adopted the State’s proposed findings of fact and
conclusions of law (“Convicting Court’s Findings”).


B.    The Convicting Court Did Not Employ a Fact-Finding Procedure
      Adequate for Reaching a Reasonably Correct Result
      In Ex parte Davila, this Court observed that the standard to which post-
conviction proceedings are to be held is whether “ ‘the fact-finding procedure there
employed was . . . adequate for reaching reasonably correct results.’ ” 530 S.W.2d
543, 545 (Tex. Crim. App. 1975) (quoting Townsend v. Sain, 372 U.S. 293, 316
(1963)) (ellipsis in original). While it is conceivable that a convicting court could
adopt in full the State’s proposed findings of fact and conclusions of law and not
run afoul of this “necessarily flexible standard,” id., this is not such a case.



      2
         In this Request for Remand the phrases “the convicting court” and “the
court” are interchangeable and refer to the lower court. By contrast, the phrase
“this Court” refers to the Court of Criminal Appeals from which remand now is
sought.
      3
        Batiste filed a response to his former counsel’s affidavits on or about April
3, 2014.

                                            3
      The convicting court’s treatment of Claim One—that is, Batiste’s trial
counsel were ineffective for failing to present evidence that their client has damage
to his frontal lobe which affects impulsivity and risk-taking behavior—illustrates
the inadequacy of its fact finding. A threshold question to this claim is whether
Batiste actually has an impaired frontal lobe. On one side of the argument is an
accredited neuropsychologist, Dr. James Underhill, who administered to Batiste a
comprehensive neuropsychological evaluation.4          In addition, Dr. Underhill
interviewed Batiste regarding his family background; personal history and
experiences; and current physical, medical, and emotional state. He also reviewed
Batiste’s juvenile detention and probation records; jail disciplinary records; jail
medical records; school records; testimony from family members and other
mitigation witnesses during the punishment phase of Batiste’s trial; testimony of
the State’s witness Scott Krieger; and online newspaper articles which provided
details of the offenses for which Batiste was indicted. (App. Ex. 1 at ¶13 [Aff. of
Dr. James Underhill].) Based upon these materials and this wealth of information,
Dr. Underhill concluded that “Mr. Batiste suffers from damage to his frontal lobe,
specifically with regard to the part of the prefrontal cortex that controls risk
taking.” (Id. at ¶23.)
      In its Answer, the State proffered no evidence to rebut Dr. Underhill’s
conclusion. It hired no expert of its own, nor did it challenge Dr. Underhill’s
credentials. Instead, the State argued against Dr. Underhill’s conclusion on three



      4
        (See App. Ex. 1 at ¶21 [Aff. of Dr. James Underhill] (referring to “a series
of tests” administered to Batiste, tests which were “selected to evaluate his
sensory, motor, attention, memory, language, visual-perceptual organization and
executive functioning”); see also id. at ¶22 (“Among other tests, I administered
portions of the Meyers’ Neuropsychological Battery [], which is a comprehensive
standardized neuropsychological testing battery.”).)

                                         4
specious grounds, all of which have become part of the official record in this case
by the convicting court’s credulous acceptance of the State’s proposed findings.
      First, the State claimed that Dr. Underhill’s conclusion was “vague” because
he had not “disclose[d] the applicant’s specific score” on one of the many tests he
administered to Batiste. (Convicting Court’s Findings at 17.) But if vagueness
was a problem in this instance—and there is no suggestion within Dr. Underhill’s
affidavit that his conclusion hinged on a single score from a single test—it could
hardly be cured by truncating the fact-finding process. This the court did by
refusing to hold an evidentiary hearing (and at the State’s urging, no less). A fact-
finding procedure is inadequate to reach “reasonably correct results” when, as here,
the fact-finder rests a factual determination (to paraphrase: “Dr. Underhill’s
conclusion is unpersuasive”) on an ambiguity that the fact-finder was empowered
to resolve.5


      5
         The convicting court cites to Ex parte Reed, 271 S.W.3d 698, 747 (Tex.
Crim. App. 2008), for the proposition that an “affidavit filed in support of [a] writ
of habeas corpus [is] not credible when it lacked specific facts which could be
corroborated.” (Convicting Court’s Findings at 17-18.) The citation is curious in
that Dr. Underhill’s affidavit bears no resemblance to the unsworn statement
dismissed as incredible in Ex parte Reed.
       In Ex parte Reed, the statement at issue was that of a layperson claiming
personal knowledge of a romantic relationship between a murder victim and the
defendant held responsible for her death. The “specific facts” asserted by the
witness included inter alia that the witness had seen the defendant and victim
together, “kissing and calling each other ‘baby’ ”; that the witness saw the
defendant after the victim’s murder, at which time he seemed sad and angry; and
that the defendant had told the witness (while both were being held at the Bastrop
County Jail) that he was innocent of the victim’s murder. Ex parte Reed, 271
S.W.3d at 746.
       This Court decided not to credit these assertions for reasons inapplicable to
Dr. Underhill’s affidavit on behalf of Batiste: (1) the witness’s statement was not
sworn, whereas Dr. Underhill signed a sworn affidavit; (2) the witness’s statement
conflicted with uncontroverted evidence adduced at Reed’s trial, whereas Dr.

                                         5
      Second, the convicting court misunderstands Batiste’s argument concerning
the management of his condition. In its verbatim recitation of the State’s proposed
findings, the court writes: “Dr. Underhill’s conclusions [are] unpersuasive, given
the applicant’s state jail records reflecting that the applicant had no disciplinaries
while incarcerated at the Lynchner Unit which indicated that the applicant could
control his behavior, including risk taking behavior, when he so chose without
medication.” (Convicting Court’s Findings at 18.) Both Batiste’s application and
Dr. Underhill’s affidavit make clear that “there are several ways that [frontal lobe
damage] can be treated and controlled within a prison environment,” including
medication and the controlled nature of prison environment itself. (App. at 27-28;
App. Ex. 1 at ¶¶34-35 [Aff. of Dr. Underhill].) Batiste’s ability to conform to
prison rules absent medication neither weakens his claim for relief nor does it
undercut Dr. Underhill’s conclusion, for neither the claim nor the conclusion
depend on medication being necessary to treat frontal lobe damage. This Court
ought to question a fact-finding procedure—again, one truncated by the convicting
court’s refusal to grant an evidentiary hearing or to order depositions,
interrogatories, or additional affidavits, see TEX. CODE CRIM. PROC. art. 11.071,
§ 9(a)—whose end result is predicated, in part, on elementary confusion between
what is helpful to bring about a certain result and what is necessary.
      Third, the convicting court regards Dr. Underhill’s conclusion as cumulative
of the testimony offered by State’s witness Scott Krieger, a psychologist who
examined a sixteen-year-old Batiste while working for the Texas Youth
Commission.     But Mr. Krieger administered only three tests to Batiste—the

Underhill’s conclusions are consistent with (but not duplicative of) the evidence
adduced at Batiste’s trial; and (3) the witness’s assertions were “general” and could
not be corroborated, whereas Dr. Underhill reached his conclusions partly through
a battery of tests whose precision and efficacy are well established among
neuropsychologists.

                                          6
Minnesota Multiphasic Personality Inventory designed for adolescents, the Beck
Depression Inventory, and the Substance Abuse Subtle Screening Inventory (18
RR at 42-43)—none of which is designed to uncover brain damage. Further, Mr.
Krieger only offered that a young Batiste “was impulsive and preferred action over
thought and reaction” (Convicting Court’s Findings at 18), testimony which speaks
only in terms of effects and not causes.6 The jury which sentenced Batiste to death
therefore lacked information critical to understanding why Batiste failed to behave
responsibly and to make good decisions throughout his life.         If the standard
articulated in Ex parte Davila is to have any value, this Court ought not
countenance a procedure whose end result dismisses as “cumulative” such new and
explanatorily powerful information.
      This Court and the United States Supreme Court have criticized lower
courts’ practice of adopting wholesale the allegations and conclusions offered by
the State during post-conviction proceedings. Jefferson v. Upton, 560 U.S. 284,
293-94 (2010); Anderson v. Bessemer City, 470 U.S. 564, 572 (1985); Ex parte
Reed, 271 S.W.3d 698, 729 (Tex. Crim. App. 2008). In addition to unnecessarily
complicating this Court’s independent review of the record, Ex parte Reed, 271
S.W.3d at 698, the practice raises serious doubts concerning the fairness of the
proceedings intended to ensure that this State’s most severe punishment has been
lawfully assigned. As noted at the onset, the convicting court’s poorly justified
dismissal of Dr. Underhill’s conclusion that Batiste suffers from damage to his
frontal lobe illustrates the inadequacy of the procedures in this case. Still, remand
to the convicting court to conduct adequate proceedings (e.g., supplementary

      6
         By analogy, the assertion that Dr. Underhill’s conclusion is cumulative of
(and therefore no more informative than) Mr. Krieger’s testimony makes as much
logical sense as perceiving no difference between “The car is wet” and “The car is
wet because it was left in the rain” or “The car is wet because it recently was
washed.”

                                         7
affidavits, interrogatories, evidentiary hearing) regarding Claim One alone would
go a long way toward vindicating Batiste’s rights to a “full and fair opportunity to
present his constitutional . . . claims.” Ex parte Kerr, 64 S.W.3d 414, 419 (Tex.
Crim. App. 2002).7


C.    Batiste’s Application Should Be Remanded to the Convicting Court
      The whole of Article 11.071 is “built upon the premise that a death row
inmate [has] one full and fair opportunity to present his constitutional or
jurisdictional claims in accordance with the procedures of the statute.” Ex parte
Kerr, 64 S.W.3d at 419; accord Ex parte Medina, 361 S.W.3d 633, 642 (Tex.
Crim. App. 2011). Absent a more searching inquiry into the allegations raised in
Batiste’s Application, and through its adoption of the State’s proposed findings of
fact and conclusions of law despite that proposal’s severe infirmities, the


      7
         This practice of adopting the State’s proposed findings of fact and
conclusions of law essentially verbatim is not limited to Batiste’s case but appears
to be a regular occurrence among the convicting courts of this State. See Ex parte
Cortne Robinson, Harrison County, WR-81,583-01 (findings signed Aug. 25,
2014); Ex parte Kwame Rockwell, Tarrant County, WR-80,232-01 (Sept. 9, 2014);
Ex parte Mark Soliz, Johnson County, WR-82,429-01 (Nov. 6, 2014); Ex parte
Garland Harper, Harris County, WR-81,576-01 (Dec. 11, 2014); Ex parte Gary
Green, Dallas County, WR-81,575-01 (Dec. 31, 2014); Ex parte Juan Ramirez,
Hidalgo County, WR-71,401-01 (Jan. 20, 2015); Ex parte John Hummel, Tarrant
County, WR-81,578-01 (Jan. 21, 2015). That such a practice has become
commonplace in the review of capital defendants’ applications for writ of habeas
corpus suggests Texas’s death penalty statutory scheme no longer functions as an
independent and impartial system but, instead, effectively denies capital defendants
(like Batiste) their due process rights under the United States and Texas
Constitutions. Worse still, and as the instant pleading has endeavored to show, the
practice undermines—to a degree intolerable—the accuracy of the post-conviction
review process. At minimum, then, this Court should issue an opinion warning
lower courts of the dangers to adopting wholesale the State’s proposed findings of
fact and conclusions of law.

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