Court of Criminal Appeals

Abel Acosta, Clerk

P.O. Box 12308, Capitol Station

Austin, Texas 78711

RE: State of Texas V. Tony Kareem Whitfield
No. 1277164-A ’

Dear Clerk,

32 .8&§ ~O/

January-§l, 2015

Enclosed you will find Applicant's Traverse To The States Answer. Please

file-stamp said instrument and bring it to the attention of the court in

your usual fashion. Thank you for your time

and cooperation.

Respectfully Submitted:
O" ' ' v
<U nl ‘

Tony Kareem Whitfield No. 1744769
Coffield Unit
2661 FM 2054

Tennessee Colony, Texas 75884

RECE|VEI IN
couRT oF chMlNAL APPEALS

FEB 12 2015

AE@@B Acos€a, C|erk

cause No. 1277164;A
Ex Parte In The 232nd District Court

Tony Kareem Whitfield of

¢O¢¢°'>OO>W>OO$

Applicant Harris County, Texas

Applicant's Traverse To The State's Findings of Facts And Conclusion of Law

To The Honorable Court of Criminal Appeals:

Now comes, Tony Kareem Whitfield, Applicant, Pro se, and files this}
"Applicant's Traverse To The States Findings of Facts And Conclusion of
Law" requesting that the Court of Criminal Appeals grant this foregoing
State post conviction writ of habeas corpus. And, in support thereof will
this Court the following:

I

On inge l§iZOl&, Applicant filed this foregoing writ of habeas corpus
alleging eleven constitutional issues for review by the Court of Criminal
Appeals.

II

In ground number one, Applicant contends that he was denied due process

 

and due course ofd law when the State failed to prove that Jun Park owned
the property as required by Article 21.08, Texas Code of Criminal Procedure,
and Section 29.03, Texas Penal Code; (See Applicant's writ at p.$i_).

In ground number two, Applicant contends that his judgment and Sentenee

is illegal because the State presented "no evidence" to prove that Jun

Park owned the Property as alleged in the indictment and required by Section
29.03, Texas Penal Code. (See Applicant's Writ at p;;;_);

In ground number three, Applicant contends that his trial counsel provided
ineffective assistance of counsel when he failed to know the law and failed
to request a directed verdict asking for an acquittal based on the fact
that the State failed to prove that Jun Park owned the property, as alleged
in the indictments (Se Applicant's Writ at p.;i_); `

In ground number four, Applicant contends that his appeal counsel provided

 

ineffective assistance of counsel on direct appeal when she failed to present
a claim that the evidence is legally insufficient to support the conviction
because there was a fatal variance between Jun Park being the owner of

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the property alleged in the indictment, and the evidence at trial that
inm Mo Kim was the property owner. (See Applicant's Writ at p.l§).
.In grou nd number five, Applicant contends that his trial counsel was ineffectrive
for failing to prepare for trial, also did not know the law and facts to
applicant's cases. (See Applicant'.s Writ p.ll_).
In ground number six, Applicant contends that his trial counsel was ineffective
in failing to conduct a reasonable pretrial investigation in which he did
not interview the state's two main witness, Jun Park and Sang~Hyun Lee,
who witnessed the alleged aggravated robbery. (See Applicant's Writ at
p.é§L).
In ground number seven, Applicant contends that he was denied due process
of law by the circumstances that his conviction was appraised and affirmed
and under an attempted robbery theory of a criminal statute for a violation
which applicant had bot been charged for in his indictment. (See Applicant's
Writ at p.g§_).
In ground number eight, Applicant contends that his due process was violated
when his right to confront and cross¥examine State witness who's name appears
in his indictment, but was not at trial to testify. (See Applicant's Writ
at p.gz_).
In ground number nine, Applicant contends that his constitutional right
to effective assistance of counsel were violated when the trial judge forced
him to proceed to trial with an attorney he was embroiled in conflict with,
but without making a reasonable nor lawful decision not to appoint a new
counsel, (See Applicant's Writ at p.gg_).
In ground number ten, Applicant contends that trial counsel was ineffective
for failing to object to improper statements made by the prosecutor regarding
applicant's right to a jury_trial; (See Applicant's Writ at p.j§;).
In ground number eleven, Applicant contends_that trial counsel was ineffedetiveb=
ineffective for failing to request that the trial court make a preliminary deter-
mination on the relevancy of the unadjudicated extraneous aggravated robbery
the State offered during the punishment phase prior to the presentation
of the evidence before the jury; (See Applicant's Writ at p.§§_).

III

State's Findings of Eact And Conclusion of Law

 

In addressing ground number one and two the habeas court erred in finding
that ss "the applicant's first and second grounds for relief are challenges

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to the sufficiency of the evidence." (See Findings of Fact at p. 1). The
habeas court further erred in denying grounds one and two concluding that
- "The applicant's challenge to the sufficiency of the evidence is not
cognizable in post - conviction habeas proceedings" 4a when in fact, appli-
cant' did not raise a insufficient evidence claim. (See Conclusion of Law
p. 4).
Ground Number One
Applicant now argues that the trial court's finding that grounds one
should be treated as insufficient evidence challenge must be overruled,
because a careful review of applicant's "Application For A Writ of Habeas
Corpus", (at Id pp; 6), and applicant's "Memorandum of Law to Support Appli-
cant's Application for Writ OEHabeas Corpus" (Id at pp; 3), shows that
applicant raised a claim that: the was denied due process and due course
of the law when the state failed to prove that Jun Park owned the property
as required by Article 21.08, Tex. Code Crim. Proc., and section 29.03,
Texas Penal Code," (See: Applicant's Application, at ppg 6) and (Memorandum
of Law, at pp. 3). In a nu+-shell, Applicant's claim number one is a constitue%v
tional violation of due process and due course of law, not a claim of insufficient
evidence. The Supreme Court of the United States has long held that due
process and due course of law requires that the state provide proof of
every essentialéelement of the crime charged, and a conviction based upon
a charge not tried constitutes a denial of due process: Jackson v. Virginia,
é43 U.S. 307, Iat 316, 99 S.Ct. 2781(1990); Byrd V. State, 336 S.W.3d 2&2,246
(Tex. Crim. App. 2011); Freeman V. State, 707 S;W;Zd 597,602 (Tex. Crim.
App. 1986); Araiza V. State, 555 A.W. 2d 747,748 (Tex. Crim. App. 1986).
Furthermore, a due process and a due course of law claim is cognizable
in post - conviction habeas proceedings. Ex Parte Fontenot, 550 S.W.Zd
87,89 (tex. Crim. App. 1977); Araiza V. State, 555 S.W.Zd at 7&8 (tex.
Crim. App. 1986); Byrd V. State, 336 S.W.3d 242,246 (Tex. Crim. App. 2011)
(holding that a claim of a denial of due process may be raised at any time).
Here, in applicant's case now before the Texas Court of Criminal Appeals,
the indictment alleged that Jun Park was the actual owner of the property,
but the evidence presented at trial proved that Jim Mo Kim was the actual
owner of the property, (R;R. Vol #3, pp. 29, line 1¥4). Consequently the
State failed to prove the essential element that Jun Park owned the property
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as alleged in the indictment. Byrd, 336 S.W.3d at 246.

In conclusion, the Finding of Facts and Conclusion of Law recommended
by the trial court must be overruled and applicantls judgment and sentence
set aside and remanded back to the trial court with instructions to acquit
applicant" of all charges.
ground Nukmber Two:

Applicant also argues that the trial court's finding that ground number

two should be treated as insufficient evidence challenge must also be overruled,
because a careful review of applicant's FMemorandum of Law"(ld. at ppg 7),

shows that applicant raised a claim that: "his judgment and sentence is

illegal because the state presented no evidence to prove that Jun Park

owned the property as alleged in the indictment and required by Section

29.03, Texas Penal Code. (See: Application of Writ of Habeas Corpus at

pp. 8) and (Memorandum of Law at pp.7). In a nut shell, Applicant's claim
number two is a claim of No Evidence, not a claim of insufficient evidence.

The law is clear, a claim for"no evidence" is cognizable on a writ of
habeas corpus because where there has been "no evidence" presented at trial
to support the essential elements of the offense a violation of due process
has occurred and the conviction may be attacked collaterally in a habeas
corpus proceeding. Ex Parte Perales, 215 S.W.3d 418,419 (tex. crim. App.
2007); EX Parte Coleman, 599 S.W.Zd 305,307 (Tex. crim. App. 1978); Cruz
V. Sgateb 629 S.W.Zd 852,857 (Tex. Crim; App. 1982); Gonzalez V. State,

588 S.W. 2d 574 (Tex. Crim. App. l979)(holding that where there is "no
evidence" to support a key element of the offense, the error is fundamental).

Here in applicant's case now before the Court of Criminal Appeals, the
State was required to prove that applicant attempted to obtain and maintain
control of property owned by Jun Park without his consent, as required
by Section 29.03, Texas Penal Code; But State's witness, Sang Hyun Lee
testified that the property was owned by Jim Mo Kim rather than Jun Park.
This testimony created a fatal variance between the allegation alleged
in the indictment and tkgievidence presented at trial. Consequently, the-.
trial court's finding must be overruled and applicant's convection and
sentence set aside and remanded back to the trial court with instructions
of acquittal¢ ' n

Ground Number Three:

In addfressing ground number three the habeas court erred in finding thatt--
"The court finds that trial counsel was not ineffective for failing to
request a directed verdict". (See State's Proposed Findings of Aact, Conclusion
of Law And Order, p. 2, paragraph number 8).

Applicant specifically argues that the trial court's "Findings of Fact
And Conclusion of Law" must be overruled because the court's determination
of questions of law and fact has resulted in a decision that is based on
an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.

In ground number three applicant argued that his trial counsel provided
ineffective assistance of counsel when he failed to know the law and failed
to request a directed verdict asking for an acquittal based on the fact
that the State failed to prove that Jun Park owned the property as alleged
in the indictment. (Applicant's Writ at pp. 10).

To address this issue trial counsel filed an affidavit stating that
he did not believe that a motion for a directed verdict was warranted.

(See Statefs Exhibit A, Amended affidavit of Kyle Johnson at pp. 3). And
without applying the law regarding the essential elements of the offense
of aggravated robbery, to the facts of the case, the trial court unreasonably
determined that trial counsel was not ineffective for failing to request

a directed verdict. (See Findings of Facts, pp. 2, paragraph 8). But, the
trial court's findings are contradicted by clearly established State and
Federal law as determined by the Court of Criminal Appeals and the Supreme
Court of the United States. Strickland V; Washington, 466 U.S. 668, 104
S.Ct. 2052 (1984); Ex Parte Fontenot, 550 S.W.Zd 87,89 (Tex. Crim. App.
1977); Araiza V. State, 555 S.W.Zd 746,749 (Tex. Crim. App. 1977); Byrd

v. State; 336 S.W.3d 242,246 (tex. Crim. App. 2011);

According to applicable law set out in§§x Parte Fontenot, 550 S.W.Zd
at at 89; Araiza, 555 S.W.Zd at 749, and Byrd, 336 S.W.3d at 246, Applicant
was entitled to a directed verdict of acquittal when state' s witness, Sang_
Hyun Lee took th€,witness stand and testified that some unknown person
by the name of Jim Mo Kim owned the property, rather than Jun Park as alleged
in the indictment. (R.R; Vol 33, line 144), because proof of ownership
is an essential element of an aggravated bobbery offense. E; Parte Fontenot,
550 S.W.2d at 89; Byrd, 336 S.W.3d at 246.

Therefore, trial counsel should have requested a directed verdict of

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acquittal when he learned that there was a fatal variance between Jun Park
being alleged as the owner in the indictment!and the testimony presented

at trial that Jum Mo Kim owned the property; (R.R. Vol #3, pp. 29, line

1-4). And the fact that trial counsel did not request a directed verdict
instruction shows that trial counsel failed to provide reasonably effective
assistance of counsel and satisfied the first prong of Strickland's test.
strickland, 466 U.S. at 688. In conclusion, Applicant has now shown that

the trial court's determination of the questions of law and fact is unreasonble
in light of the evidence presented in the state court proceeding showing

that there was a fatal variance between the allegation alleged in the indictment
and the evidence presentediat trial regarding ownership of the alleged
property. For this reason the trial courtfs findings must be overruled

and applicant acquitted of the alleged robbery of Jun Park.

Applicant has also shown that he was harmed by trial counsel's deficient
performance, because if trial counsel had requested said instruction applicant
would have been entitled to that instruction as a matter of law, and the
trial court's failure to give the instruction would have been reversible
error without a showing of harm. Ex Parte Varelas, 45 S.W. 3d 627,631 (tex.
crim app. 2001); Mitchell V. State, 931 S.W;Zd 950,954 (Tex. Crim. App.

1994); Green V. State,3899 S.w.Zd 245,247 (Tex. Crim. App. 1995). This
satisfies part two of Strickland because it shows that applicant was prejudiced
by trial counsel's unprefessional error, and but for his error there is

a reasonable probability that the result of the proceeding would have been
different. Consequently, applicant's judgment and sentence must be reversed
with instructions of an acquittal.

Ground Number Four

In addressing ground number four the habeas court erred in finding that --
(a) appellate counsel was not ineffective; because, (b) appellate counsel
did raise the issue of the sufficiency of the evidence on direct appeal.
Whitfield V. State, L4Hds00847;CR. (See: findings of fact, pp. 3, line
13 and 14).

Applicant specifically argues that the trial court's findindgs of fact
and conclusion of law must be overruled because the court's determination
of the facts is unreasonable in light of the evidence presented in the
State court proceeding;,

In ground number four applicant argued that his appeal counsel provided

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ineffective assistance of counsel when she failed £Q present a claim that

the evidence is legally insufficient to support the conviction because

there was a fatal variance between Jun Park being the owner of the.property
alleged in the indictment, and evidence at trial that Jim Mo Kim was the
property owner. (Applicant's Writ at ppg 12,) To address applicant's claim
appeal counsel, Janet Celeste Blackburn filed an affidavit stating in pertinent
part: "I did nottpresent a claim that the evidence was insufficient due

to a faéal variance between Jun Park being the owner of the property alleged
in the indictment and the evidence at trial that Jim Mo Kim was the ptopertyu
owner becaude l do not believe that is a valid, legal argument. Specifically,
at trial Sang Hyun Lee testified that he and Jun Park were working at the
Shell‘Gas Station on Aldine Westfield Road on September 7, 2010. Sang Hyun
Lee testified that Jim Mo Kim owned the Store.

However, Sang Hyun Lee testified that he and Jun Park were in charge
of all the inventory within the store; that the two men who attacked them
did not have a greater right to possession of the inventory inside the
store than they did; that those two men would have had to pay for any item
in the store; and that he and Jun Park had a greater right ofppossession
of the property and the things within the peoperty. This can be found in
the reporter's record in volume 3, pages 29 and 30.... Additionally, the
law - Texas Penal Code 1.07(a)(35)(A) provides that an "owner" means a
person who has a greater right to possession of the property than the actor..
Here, Jun_Park, an employee of the store had a greater right to possession
of the property than Tony Whitfield. The person named in the indictment
as the owner does not have to be the actual owner of the property; rather,
as here, the person with the greater right to possession of the property
is also legally the owner." (Affidavit of Janet Celeste Blackburn, pp.

3 paragraph No. 5 and 6);

After reading appwal counsel's affidavit stating that ¥- "I did not
present a claim that the evidence was insufficient due to a fatal variance
between Jun Park being the owner of the property alleged in the insictment
and the evidence at1 trial that Jim Mo Kim was the property owner because
I do not believe that it is a valid, legal argument," (Affidavit of Janet
Celeste Blackburn, pp. 3), -- it becomes positively clear that the trial
court's findings that;¥; "The court finds that appwllate counsel did raise

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the issue of the sufficiency of fheevidence on direct appeal" (Findings

of Fact, pp. 3, line 14) -- is stating that she did not present a claim

that the evidence was insufficient due to a fatal variance. Futhermore,
appellate counsel should have presented this claim on direct appeal because

it was a dead-bang winner which would have resulted in a reversal on direct
appeal. The courts have long held that when an appellate counsel fails

to raise a claim that has indisputable merit under well-settled law that

would necessarily resulted in reversible error, appellate counsel is ineffective
for failing to raise it. Ex Parte daigle, 848 S.W. 2d 691,692 (Tex Crim.

App. 1993); Ex Parte Miller} 330 S.W. 3d 610,628 (Tex. Crim. App. 2010).

Here in applicant's case now before the court of criminal appeals it
is well established law that once the State has alleged ownership in either
the actual owner or a special owner, it has the burden of proving beyond
a reasonable doubt the ownership allegation. Freeman V. State, 707 S.W.Zd
597 at 603 (Tex; Crim. App. 1986); Byrd V. State, 336 S?W.3d 242 at 252(Tex.
Crim. App. 2011). In applicant's case the indicgment alleged Jun Park as
the actual owner. Therefore, appeal counselfs representation fell below_
an objective standard of reasonableness when she fail iv know the law regarding
ownership of property and present the fatal variance error on direct appeal-
once she learned that Jun Park was alleged as the actual owner in the indictment,
but the testimony at trial by Sang Hyun Lee stated that Jim Mo Kim was
the actual owner. R.R. Vol #3,pp. 29, line 1-4). In-summary, because the
indictment alleged that Jun Park was the actual owner of the property,
but the evidence presented at trial proved that Jim Mo Kim was the actual
owner of the property, appeal counsel should have raised the claim of a
fatal variance on direct appeal¢ Byrd, 336 S.W.3d at 246. And the fact
that appeal shows that she fail to provide reasonably effective assistance
of counsel satisfying the first prong of Strickland's test. Strickland,
466 U.S. at 688.

Applicant further argues that he was harmed by appellate counsel's deficient
performance because had she presented the fatal variance on direct appeal,
there is no doubt that applicant's conviction and sentence would have been
reversed on direct appeal. Byrd v. state, 336 S.W.3d 242,246 (Tex. Crim.

App. 2011); Ex Parte Miller, 330 S.W.3d at 628; EX Parte Daigle, 848 S.W.Zd
at 692, case law makes it clear that where one person is alleged to own
property, but it is shown at trial to be owned by another, or by a corporation,

the state has failed to prove ownership as alleged in the indictment, and

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eeqeired by 1ew. Robercs v. state, 513 s.w.zd 870,871. This satisfies the
second prong of Strickland§$ test because it shows that, but for appellate
counsel deficient performance there is a reasonable probability that the
out come of applicant's appeal would have been different. Strickland, 466
U.S. at 694. For the reasons stated bove, the trial court's findings must
be overruled and applicant's conviction reversed and remanded for new trial.
Ground Number Five t

In addressing ground number five the habeas court erred in finding that --
"the court finds that trial counsel was knowledgeable in the law regarding
aggravated robbery cases." (findings of fact, pp.2, line 7). Applicant
argues that{the trial court's findings of fact and conclusion of law must
be overruled because the court's determination of the facts is contrary
to clearly established federal law as determined by the Supreme Court of
the United states in strickland v. weshingten, 466 U..s.' 668, 104 s.ct.
2052 and Hernandez V. State, 988 S.W.Zd 770 (Tex. Crim. App. 1999).

"~ In ground number five» applicant argued that his trial counsel was ineffective

for failing to prepare for trial, also did not_know the law and facts to
applicant;s case. (Applicant's Writ, at ppg 14).
To address applicant's claim trial counsel filed an affidavit stating:
"I have handled countless Aggravated Robbery cases and have probably
tried between 20 to-30 in my career. Yes, I was aware of the law
governing Mr. Whitfield's Aggravated robbery case". (Affidavit of
Kyle Johnson, pp. 3(9)(a)r
After reading trial counsel's affidavit stating that -- "He was aware
of the law governing Mr. Whitfield's_aggravated robbery case" ¥- it becomes
clear that the trial court did not have any evidence to support a finding
that -- "trial counsel was knowledgedable in the law regarding aggravated
robbery cases} Assthe record shows that trial counsel was applicant's counsel
for almost a year and failed to do any legal research in the case. (See l
Applicant's Mimorandum of-Law, pp. 18). In conclusion, the findings of

the habeas court must be overruled and the case remanded for a new ttial.`

Ground Number Six

In addsressing ground number six, the habeas court erred in finding

 

that -- "trial counsel was not ineffective for failing to interview two
witnesses prior to trial", (findings of fact, pp. 2, line 9).
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Applicant specifically argues that the habeas court's Findings of Facs
and Conxlusion of Law must be overruled because the court's determination
of the facts is contrary to clearly established State and Federal law as
determined by the supreme Court of the United_States in Strickland vs washington,
466 U.S. 668, 104 S.Ct. 2052 (1984), Ex Parte Welborn, 785 S.w. 2d 390,393
(Tex. Crim. App. 1990), and Ex Parte Lilly, 656 S.W;Zd 490,493 (Tex. Crim. App.
1983).
Federal and State courts have long held that it is fundamental that a criminal
defense attorney must have a firm command of the facts of the case, as
well as the governing law before they can render reasonably effective assistance
of counsel. Ex Parte Welborn,‘ g Qt;ah '§mr t zale ele-::'. §Vni.n 785
S.W.Zd 391,393 (Tex. Crim. App. 1990). This means that trial counsel has
a duty to seek out and interview potentiallwitnesses in his client's behalf,
and his failure to interview any witness in defense behalf proves that
trial counsel failed to provide reasonably effective assistance of counsel.
Strickland, 466 U.S. at 699 104 S.Ct. at 2070;Ex Parte Welborn, 785 S.W.Zd
391,393; Ex Parte Lilly, 656 S.Wde 490,493. 4 _
Here in applicant's case now before teh court of criminal appeals, applicant
argued that his trial counsel provided ineffective assistance of counsel
when he failed to interview two key witnesses, Sang Hyun Lee and Jun Park
before trial. (Applicant's Writ, pp. 15A). To address applicant's claim
trial counsel, Kyle Johnson filed an affidavit stating:
"I did not interview the two witnesses in this case because the whole
thing was caught on vidfo and Mr. whitfield was caught by police
officer's while running from the scene wearing a mask and carrying
a gun. Neither witness could identify Mr. Whitfield or Mr. Hollandbbecause
both wore masks so there was really nothing to be gained by interviewing
the witnesses. l knew exactly what the trial testimony was going to be...)
(Affifavit of Kyle Johnson, pp. 3, (9)(d)).
the record shows that trial counsel admitted that he "did not interyiew
the two witness in this case". Thus, by admitting that he did not interview
the two witnessesy trial counsel has also admitted that he failed to provide
reasonably effective assistance of counsel, because federal and state courts
have long held that trial counsel has an independant duty to seek out and
interview potential witnesses, and his failure to interview those witnesses
proves that trial counsel failed to provide reasonably effective assisstance

of counsel and satisfies the first prong of Strickland, 466 U.S. at 699;

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Ex Parte Welborn, 785 S.W.Zd at 393.

applicant also proved that he was harmed by trial counsel's deficient
performance because it was alleged in his indictment that Jun Park was
the actual owner of the establishment, but the evidence at trial showed
that he was not. Had trial counsel performed his own independant investigation
and interviewed these two crucial witnesses, trial counsel could have challenged
the state's inability to prove that Jun Park was the actual ownership and
received an acquital at trial. Garcia v; State, 308 S.w.3d 62,70 (Tex.
Crim. App. 2009); McFarland V. State 928 S.W.2d 482,484 (Tex. Crim. App.
1996); Ex Parte Welborn, 785 S.W.Zd at 393. This satisfies part two of
Strickland's test because it shows that but for trial counsel&s deficicent
performande there is a reasonable probability thtat the out come of the
trial would have been different. Strickland, 466 U.S. at 695. In conclusion,
the habeas court must be overruled and the case remanded for a new trial.
Ground Number Seven n

In addressing ground number seven,_the habeas court erred in finding

 

that this -- ZIssue was raised and rejected on direct appeal." (Findings
of Fact, pp. 4, line 6).

Applicant specfiically argues that the habeas court's findings of fact
and conclusion of law must be overruled because the court's decision has
resulted in an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding, because the record on
direct appeals shows that applcant's claim on direct appeal is different
from the claim he now presents in this foregoing habeas coupus application.

Here in applicant's case now before the court of criminal Appeals, applicant
is arguing that he was denied due process of law because his conviction
was appraised and affirmed by the Fourteenth court of Appeals under an
attempted robbery theory of a criminal statute for which he had not been
charged in his indictment. (Applicant's Writ, pp. 15B). However, on direct
appeal applicant argued that "the evidence is legally insufficient to support
the jury's`guilty verdict because there is no evidence that he had committed
or was attempting to commit a theft, a requisite finding for an aggravated
robbery conviction. (Opinion of the Fourteenth Court of Appeals, Appeal
Ne. 14-11-00847-cR, pp. 3).

Here in applicant's state habeas coupus proceeding, he is not attacking

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the sufficiency of the evidence addressed on his direct appeal. Rather,
applicant is attacking the fourteenth Court of Appeals decision affirming
his conviction under a theory not presented before the jury. In a not shell,
applicant is arguing that the court of APpeals violated hes due process
right when it affirmed his cqnviction based on facts not submitted to the
jury. Wooley v State, 273 S.W.3d 260(Tex. Crim. App. 2008).

In conclusion, Applicant's caim that the court of appwals denied him
due process has not been raised andPre§ested on direct appeal as stated
by the habeas court. For this reason the findings of the habeas court must
be overruled and the issue must be properly exhausted by the State court
before presenting it in Federal court.

Ground Number Eight

In addressing ground number eight, the habeas court erred in finding
that -- "The applicant did not raise his first and eight grounds for relief
at the trial court or on appeal and is now barred from bringing said claims
in habeas proceedings. (See States Answer at pp. 11, and Finings of Facts
at pp. 3).

Applicant specifically argues that the habeas court's Eindings of Fact
And Conclusion of Law must-be overruled because the court of the United
States in Pointer V. Texas, 380 U.S. 400, 403¥405, 85 S.Ct. 1065 (1965)
and Maryland V. Craig, 497 U.S. 836,845 110 S.Ct. 3157 (1990), holding
that the right to confront and cross examine witnesses against you is made
applicable to the States through the "Due Process Clause# of Fourteenth
Amendment and may be raised at any time. Pointer, 380 U.S. at 403-405.

Furthermorem the Supreme Court has consistantly held that the absence
of proper confrontation at trial calls into question the ultimateaintregrity
of the fact finding process. roberts V; U.S. at 64, 100 S.Cts 2531; Chambers
V. Mississippi, 410 U.S. 284, at 295, 93_S.Ct. 1038 (1973). In summary,
the confrontation clause ofthe United States Constitution gives criminal
defendants the right to contronted the witness against him. carrol V. State,
916 S.W.Zd 492,494 (Tex. Crim. App. 1996). The right to have the jury observe
the witness' demeanor, the right to participate in the cross examination
of the witness, and the right to the witness against him arerfundamental
rights guaranteed by due process under the Fourteenth Amendment, and may
be raised in a writ of habeas coupus. Clemmons V. Delo, 124 F.Bd 944,946

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(8th Cir. 1997); Pointer V. Texas, 380 U.S. 400,403-405 (1965), and Maryland
v. creig, 497 U.s. 836,845. '

In conclusion, the habeas court's finding that applicant is now barred
from bringing his due process claim because he did not raise this claim
at trial or on appeal, must be overruled, and applcant's eighth ground
for Lrelief should be granted remanding the case for a fair trial.
Ground Number Nine

In addressing ground number nine,the habeas court is correct in finding
that -- "The court finds that the issue of ineffective assistance of counsel
regarding an actual conflict beteewn the applicant and his trial counsel
was raised on direct appeal" issues raised and refected on direct appeal
need not be considered in the instant Writ proceeding or in any subsequent
proceeding. (Findings of Fact, pp. 3). Therfore applicant agrees that this
issue in ground number nine has been exhausted in State Court proceedings,
because the_Court of Criminal Appeals reviewed the issue on petition for
discretionary review.
Ground Number Ten

ln addressing ground number ten, the habeas court erred in finding
that-- %trial counsel was not ineffective for failing to object ot the
prosecutor's argument regarding the applicant's right to a jury trial".
(Findings of Fact, pp. 3, line 11).

Applicant specifically contends that the habeas court's findings of
fact and conclusion of law must be overruled because the court's findings
has resulted in a decision that is contrary to clearly established federal
law as determined by the Supreme Court of the United_States in Spevack
V. Klein, 385 U.S. 511, 87 S.Ct. 625 (1967); Dubria V. Smith, 197 F.3d
390 (1999); United States V. Molona, 934 F.2d 1440 (9th Cir. 1991).

The Supreme Court has long held that as a general rule a prosecutor
may not express his personal opinion of the defendant's guilt, or his belief
in the credibility of government witnesses. Dubria v. Smith, 197 F.3d 390,
394. A defendant have a constitutional right to invoke his six amendment
right to a jury trial and a penalty cannot be imposed against him for exercising
his constitutional right. Villarresl V. State, 860 S.W.Zd 647,650 (1993);
Spevack V. Klein, 385 U;S; 511,515,_87 S.Ct. 625,628 (1967).

Moreover, the courts have long held that reasonably competent counsel
sould always object to improper statements made by uthe prosecutor, and

failure to do so shows that trial counsel failed to provide reasonably

13 of

effective assistance of counsel satisfying the first prong of Strickland's
test. Strickland, 466 U.S. at 688 (1984); Berger V. United States, 295

U.S 78,88 55 S.Cts 629 (holding that there was no tactical advantage to

gain by failing to object to prosecutor's improper statement. Applicant

has also shown that he was harmed by trial counsel's deficient performance,
because the uncontested statements inflamed the minds of the jury to convict
applicant based upon the presecutor’s statements without considering any
other evidence. Applicant maintains that, but for trial counsel?s deficient
performance there is a reasonable probability that the result of the proceeding
would have been different. Strickland, 466 U.S. at 695. For he reasons
stated above, the findings of th€ habeas court should be overruled and
applcant's tenth ground for relief should be granted remanding the case

for a new trial.

Ground Number Eleven

 

In addressing ground number eleven, the habeas court erred in finding--
that trial counsel was not ineffective for failing to ask for a preliminary
determination of the relevance of an unadjudicated offense -- simply because
trial counsel stated that he did not ask for such a preliminary determination
on the relevancy of an unadjudicated extraneous aggravated robbery the

State offered during punishment because it would never have occurred to

 

him to dQ so. (See State's Writ Exhibit A, Amended affidavit of Kyle Johnson,
pp. 3(f)). To the contrary, trial counsel's statement supports applicant's
claim, because it shows'mat he failed to know the law regarding unadjudicated
extraneous offenses offered during the punishment phase of trial.
In ground number eleven, applicant contends that his trial consel provided
ineffective assistance of counsel when he fail to request that_the trialcourt
make a preliminary determination on the relevancy of the unadjudicated
extraneous aggravated robbery, the State offered during the punishment
phase prior to the presentation of the evidence before the jury.
In addressing ground eleven, trial counsel Kyle Johnson filed an affidavit
stating that: _
"I did not ask the trial court to male a preliminary determination
on the relevancy of an unadjudicated extraneous aggravated robbery

the the state offered during punishment because it would never have occurred
to me to do so; Whether or not a defendant has committed another
offense like the one he has been convicted of is pretty mu ch the
definition of "relevancy at;the punishment phase of a trial". (Amended

14 of

Affidavit of Kyle Johnson, pp.3(f)).

After reviewing trial counsel;s amended affidavit two things become
clear. First, we see that trial counsel admitted that he never ask the
trial court to male a preliminary determination -- "because it would never
have occurred to me to do so." second, we see that the state assistant
prosecuting attorney lied when she stated -- VTriahrmrmellstated that ne'
did not ask for_such a preliminary determination because ne believed that
'the court would have let the evidence be presented to the jury." (see:
state's Amended Original Answer, pp. 7, paragraph number 2).

Furthermore, it must be pointed out that trial counsel has committed
the offense of perjury in violation of section 37.02, Texas Penal Code,
whenshe made two conflicting statements under oath addressing this issue
in his sworn affidavits presented to the habeas court. (See: Affidavit i¢'
of Kyle Johnson, dated Novenber 13, 2014).

A review of Kyle Johnson's original affidavit dated August 22, 2014,
shows that he stated under oath that:

"the last question ask why I did not ask the trial court to make

a preliminary determination on the relevancy of the unadjudicated
extraneous aggravated robbery the state offered during punishment.
If I understand this question it is referring to Articke 37.07,
section 3(a)(1) which requires the trial court to make a threshold
determination of whether the :',Nn nn `V' jury could rationally

find beyond a reasonable doubt that an extraneous offense was commi-
`tted by a defendant beforethe state could introduce evidence of that
act. In this case, the >` 1,… . W' ' nhl ": bi"“';¢extra-
-neous was the aggravated robbery of the Valero station thattformed
the basis of the other charge against Mr. whitfield (and the commi-
ssion of which he adamantly denied. Frankly, I could have asked for

sues such a determination but did not, Had I done so, there is no question

in my mind that the trial court would have allowed the evidence.

Even though the video of the Valero robbery showed a robber that

that was arguably was not Mr. Whitfield," (See Original Affidavit

of Kyle Johnson, pp. 3 (f)).

Later, a review of Kyle Johnson’s Amended Affidavit dated November 13,
shows that he stated under oath that --

"I did not ask the trial court to make a preliminary determination

15 of

on the reievancy of an unadjudicated extraneous aggravated robbery
the State offered during punishment because it would never have occurred
to me to do so." (See Amended affidavit of Kyle Johnson, pp. 3(f)).

In summary, because trial counsel has given two false affidavits under
oath, the evidence shows that trial counsel has in fact committed the act
of perjury in violation of section 37.02 (a)(l), Texas Penal Code. Conse-
quently, neither one of trial counsel's affidavit's can be used in this
habeas corpus proceeding. And, charges should be brought against Mr. Kyle
lJohnson.

Furthermore, a review of case law shows that trial counsel failed to
provide reasonably effective assistance of counsel when he failed to request
a preliminary determination pursuant to article 37.07, section 3(a)(l)
which requires the trialuocourt to make a determination of whether the
jury could rationally find that the unadjudicated extraneous offense was
committed by the defendant before it could be introduced to the jury. Article
37.07 § 3(a)(1), Texas Code of Criminal Procedure;

According to Article 37.07 § 3(a)(1), Texas Code Crim. Proc., the trial
court must make a threshold determination that the jury could reasonably
find beyond a reasonably doubt that the defendant committed the extraneous
ofense before it can be admitted during the punishment phase of trial.
Malpica V. State, 108 S.W.3d 374,377 (Tex. App. 2003). The courts has long
held that extraneous offenses are inherently prejudicial, and counsel is
ineffective when he fails to prevent these unadjudicated offense from being
presented before the jury. Hutchison v. State, 663 S;W.Zd 610,612 (Tex.

Crim. App. 1979). _

In Hutchison v. State, 6633S.w.2d 610 at 612, the Court of Criminal
Appeals held that counsel's failure to attack inadmissible extraneous offenses
was sufficient to prove that trial counsel failed to provide reasonably
effective assistance. Likewise, in Cude V. State, 588 S.W.Zd at 897, the
court of criminal appeals held that trial counsel provided ineffective

assistance of counsel when he failed to attack unadjudicated extraneous
robberies was so prejudical that it denied the defendant of his right of
a fair triall

In conclusion, Applicant has shown by the record of evidence, that trial
counsel,_§yle Johnson failed to provide reasonable effective assistance
when he failed to request a preliminary determination regarding the unadjudicated

extraneous aggravated robbery. This satisfies part one of Strickland's

16 of

 

test because it shows that trial counsel failed §§ pr@vide reasonably effective
assistance~of counsel guaranteed to applicant under the sixth amendment of
the Unitedsstetes cens'titutien.' strickland, 466 U.s.' et"688.~

Applicant was also prejudiced by trial counsel's deficient performance because
the admission of another unadudicate extraneous aggravated robbery during
the punishment phase of trial was so prejudical that it inlamed the minda
of the jury thereby denying applcant a fair punishment hearring. This satisfies
part two of Strickland's test because it shows that but for trial counsel's
deficienttperformance there is a reasonable probability that the outcome
of the trial would have been different. Strickland, 466 U.S.

For the reasons stated above, the findings of the habeas court must
be overruled, and ground number eleven Should be granted with instructions

tonreverse applicant conviction and remand the case for a n§hdtrial.

Prazer
Applrant respectfully prayswthat the Court of Criiminal Of Appeals hold

a hearing de novo review, and thereafter grant this Foregoing habeas corpus

petition and remand applicant back to the trial court for a new trial. Applicant

Respectfully Sub itte
agme aug "gé»jg ' »
Ton Kareem Whitfi d
Coffield Unit

2661 FM 2054

So moves The Court.

Tennessee Colony, Texas 75884

17 of

Certificate of Service
I, Tony Kareem, Applicate, Pro se, do hereby certify that a true and
correct copy of this foregoing instrument has been served upon Carolyn
Allen, Assistant District Attorney, 1201 Franklin, 6th Floor, Houston,
Texas 77002. Executed on this l day of January, 2015

<"‘ d aiding
sign c)<m,g VAJMDV 101
U
Tony Kareem Whitfield

Applicant, Pro se

