                                                                                           WR-84,092-01
                                                                            COURT OF CRIMINAL APPEALS
                                                                                             AUSTIN, TEXAS
                                                                            Transmitted 11/9/2015 3:09:47 PM
                                                                              Accepted 11/9/2015 3:24:14 PM
                                                                                              ABEL ACOSTA
                                WRIT NO. 1293649-A                                                    CLERK
                              TRIAL COURT NO. 1293649
                                                                             RECEIVED
                                                                      COURT OF CRIMINAL APPEALS
EXPARTE                                      §        IN THE    DISTRICT COURT
                                                                             11/9/2015
                                                                        ABEL ACOSTA, CLERK
                                             §
                                             §        182ND JUDICIAL DISTRICT
                                             §
RICHARD HAMER                                §        HARRIS COUNTY TEXAS


             MEMORANDUM IN SUPPORT OF APPLICATION
           FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF
              FROM FINAL FELONY CONVICTION UNDER
              CODE OF CRIMINAL PROCEDURE, ART. 11.07


TO THE HONORABLE PRESIDING JUDGE:

       NOW COMES RICHARD HAMER, Applicant and files this Memorandum

in Support of Application for a Writ of Habeas Corpus Seeking Relief From Final

Felony Conviction Under Code of Criminal Procedure, Art. 11.07 and would show

this Honorable Court the following:

                                                 I.
                                       History of Case

      Hamer was charged with the offense of manslaughter by indictment which
alleged:
       ... Richard Hamer, hereafter styled the Defendant, heretofore on or
       about January 9, 2011, did then and there unlawfully, and recklessly
       cause the death of Derrick Jones by speeding, failing to maintain a
      proper lookout, failing to control speed, disregarding a traffic control
       device, failing to yield the right of way and failing to stop at a
       designated point.



Memorandum in Support of Application for a Writ of Habeas Corpus - Page I
       The facts of the case used by the prosecution are set out in the probable cause

affidavit which stated:

       Affiant has reviewed the Houston Police Department offense report
       number003800411D, andsawthatonJanuary9, 2011 at approximately
       1618 hours, HPD officers were dispatched to a fatality crash located at
       12600 Gessner at 10200 South Sam Houston Parkway West, both public
       roadways in Houston, Harris County, Texas. Affiant observed the scene
       to involve two vehicles at the intersection of South Gessner and South
       Sam Houston Parkway west service road. Affiant observed that there
       was a red Saturn that was traveling north bound on South Gessner when
       the suspect was traveling west bound on the South Sam Houston
       Parkway west service road (also know as Beltway 8) in a Ford F-250.

       Affiant reviewed a supplement made by HPD officer C. Long who did
       a hospital check on the front seat passenger of the red Saturn involved
       in the crash, identified as Denzel Anthony, hereafter Complainant.
       Complainant suffered massive head injuries and is living in a vegetative
       state due the injuries and is not capable of caring for himself. Before the
       wreck the Complainant was a normal and healthy person. The driver of
       the red Saturn died at the scene, he was identified as Derrick Jones.

       Affiant reviewed a statement made by witness Davis Moses, a credible
       and reliable person, who stated that he was traveling the same direction
       as the red Saturn, north on South Gessner. Witness Moses stated that
       the Saturn was one to two car lengths in front of witness Moses when he
       entered the intersection. Witness Moses stated the light was green for
       the Saturn and himself. Witness Moses stated that he saw a pick-up
       truck traveling west on the service road at a high rate of speed and it
       struck that red Saturn.

       Affiant reviewed a statement by witness Victor De La Garza, a credible
       and reliable person, who stated he was moving into lane one (the far left
       lane of the three lanes) heading north on South Gessner in order to make
       a left turn on to the service road. Witness De La Garza stated that his
       light on South Gessner was green and the[n] he looked up and saw the
       truck strike the red car. Witness De La Garza was traveling north on
       South Gessner in the same direction as the red Saturn.


Memorandum in Support of Application for a Writ of Habeas Corpus - Page 2
       Affiant reviewed a statement made by the Defendant, who was identified
       by his Arkansas driver's license as Richard Hamer, dob 8.20.1977,
       hereafter Defendant who stated that he was traveling west bound on the
       South Sam Houston Parkway west service road in a Ford F-250 pick-up
       truck. The Defendant stated that he proceeded through the intersection
       knowing the light was about to tum red but thought he could make it.
       The Defendant stated he believed he was only traveling 45-50 miles per
       hour when he entered the intersection and he admitted to not attempting
       to stop prior to the crash.

       Affiant reviewed scene photographs, the crash report, statements from
       the witnesses, the timing of the lights and reports from the scene
       investigation and was able to use his expertise as an accident
       reconstructionist to determine what occurred during this crash. Affiant
       was able to determine that the Defendant was traveling west bound on
       the South Sam Houston Parkway west service road the Complainant was
       a passenger in the red Saturn that was traveling north on South Gessner.
       The vehicle the Complainant was in suffered very heavy right passenger
       side damage and the Defendant's vehicle sustained heavy front left
       damage and driver's side damage. Affiant also noted that his
       intersection is controlled by traffic control signals in all directions, and
       that those signals were operating normally at the time of the crash. In
       looking at the report of the traffic control signals, at the time of the
       crash, the Defendant's light was red and the Complain[an]t's light was
       green. The traffic control signal report indicated that the Defendant
       would have had a yellow light for 3.5 seconds followed by 1 second of
       a red light before the Complainant's vehicle would have then had a
       green light and this also indicated to Affiant that the Defendant would
       have been 469 feet away from the intersection, with ample amount of
       time to stop before entering the intersection. Using the Defendant's
       speed of70 mph, at that distance, the Defendant still had ample distance
       to safety stop before entering the intersection. Using the physical
       evidence combined with the download and the witness statements,
       Affiant was able to determine that the Defendant was traveling at
       approximately 70 mph when he entered the intersection and at impact
       with vehicle occupied by the Complainant. In addition, using his
       training and experience, your Affiant is able to determine that the
       Defendant did not brake or attempt to avoid the crash at all. The posted
       speed limit on the roadway in which the Defendant was traveling is 45
       mph.
Memorandum in Support of Application for a Writ of Habeas Corpus - Page 3
       Affiant is trained in accident reconstruction and in his training and
       experience is able to determine that the Defendant was speeding at least
       25 mph over the speed limit, failed to maintain a proper lookout, failed
       to maintain his speed, disregarded a traffic control device and failed to
       yield right of way when he did not stop at the red light. Affiant also
       knows these acts to be reckless and to cause serious bodily injury or
       death when operation a motor vehicle.

       Affiant also knows from his training and experience that a motor vehicle
       is a deadly weapon.

       On January 20, 2012, Hamer appeared in court with counsel, Dawn Kibler, and

entered a plea of guilty to manslaughter. There was no plea agreement. The court

assessed a sentence of 15 years imprisonment.

                                                II.

                                   Ground for Relief One

       Hamer received ineffective assistance of counsel in violation of the U. S.

Const., amends. VI and XIV.

                                  Summary of Argument

       Hamer received ineffective assistance of counsel. He was involved in a vehicle

accident that resulted in the death of another person. Defense counsel advised Hamer

to enter an open plea of guilty to manslaughter to the court and allow the court to set

punishment. The court set punishment at 15 years in prison. There was a legitimate

and meritorious defense to be presented to the manslaughter charge which defense

counsel did not present. This defense was that, ifHamer was guilty at all, it was of

the offense of criminally negligent homicide, rather than manslaughter.
Memorandum in Support of Application for a Writ of Habeas Corpus - Page 4
       Counsel was ineffective in advising Hamer to plead guilty to manslaughter and

not fully explaining his options to him. Had counsel fully explained the evidence and

difference between the charges of manslaughter and criminally negligent homicide,

Hamer would not have entered a plea to manslaughter. Had counsel fully explained

the evidence in this case, Hamer would have entered a not guilty plea and taken the

case to trial. Under the facts of this case, Hamer would not have been found guilty

of manslaughter or received 15 years in prison.

                                               HI.

                                    Statutory Provisions

       PEN. §19.04. MANSLAUGHTER
       (a) A person commits an offense ifhe recklessly causes the death of an
       individual.
       (b) An offense under this section is a felony of the second degree.

       PEN. §19.05. CRIMINALLY NEGLIGENT HOMICIDE
       (a) A person commits an offense ifhe causes the death of an individual
       by criminal negligence.
       (b) An offense under this section is a state jail felony.

       PEN. §6.03. DEFINITIONS OF CULPABLE MENTAL STATES

       (c) A person acts recklessly, or is reckless, with respect to
       circumstances surrounding his conduct or the result ofhis conduct when
       he is aware of but consciously disregards a substantial and unjustifiable
       risk that the circumstances exist or the result will occur. The risk must
       be of such a nature and degree that its disregard constitutes a gross
       deviation from the standard of care that an ordinary person would
       exercise under all the circumstances as viewed from the actor's
       standpoint.
       (d) A person acts with criminal negligence, or is criminally negligent,
       with respect to circumstances surrounding his conduct or the result of
Memorandum in Support of Application for a Writ of Habeas Corpus - Page 5
       his conduct when he ought to be aware of a substantial and unjustifiable
       risk that the circumstances exist or the result will occur. The risk must
       be of such a nature and degree that the failure to perceive it constitutes
       a gross deviation from the standard of care that an ordinary person
       would exercise under all the circumstances as viewed from the actor's
       standpoint.

                                               IV.

   Was Hamer Guilty of Manslaughter or Criminally Negligent Homicide?

       Defense counsel advised Hamer to plead guilty to manslaughter without

explaining to him the law concerning manslaughter and criminally negligent

homicide By pleading guilty, Hamer conceded that he acted recldessly, rather than

negligently. However, an examination of the statutory definition shows that there

was, at the very least, a strong argument to be made that the proper offense for Hamer

to have been charged with was criminally negligent homicide. Counsel failed to

explain the law to Hamer, tell him of this option to plead not guilty to manslaughter,

and argue that he was actually guilty only of criminally negligent homicide. The

result of this lack of explanation of his options was that Hamer pied guilty to

manslaughter and received 15 years. He gave up a good argument that he was not

guilty of manslaughter. See, Stadtv. State, 120 S.W.3d 428, 428 S.W.3d 428 (Tex.

App. - Houston [14th Dist. 2003]), affirmed on P.D.R., 182 S.W.3d 360 (Tex. Crim.

App. 2005) (criminal negligent homicide found in connection with traffic accident);

Thompson v. State, 676 S.W.2d 173 (Tex. App. - Houston [14th Dist.] 1984)

(criminally negligent homicide found as a result of traffic accident).
Memorandum in Support of Application for a Writ of Habeas Corpus - Page 6
       Among the many reasons why this was a case of negligence, rather then

recklessness, is the following:

1.     The evidence shows both vehicles were speeding.

2.     Hamer's tire size affected the accuracy of the speedometer in his vehicle.

3.     The yellow light which Hamer went through was a significantly shorter than

recommended by official sources.

4.     The complainant was under the influence of marijuana and Xanax.

5.     The passenger in Hamer's vehicle believed he had plenty of time to make it

through the yellow light.

       A copy of a memo sent from defense counsel to the prosecutor laying out this

information is attached to this memorandum. Even though defense counsel knew

these facts, she failed to explain them to Hamer or tell him that these facts show that

while he may have been negligent, he was not reckless.

       Moreover, under the Rule of Lenity, the proper charge in this case was

criminally negligent homicide. The Rule ofLenity is a rule of statutory construction

that resolves doubts in the enforcement of a penal code statute against the imposition

of a harsher punishment. If a provision is subject to two interpretations, it is to be

construed in favor of the interpretation that imposes the less harsh punishment. See

Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). Here, the alleged conduct

could potentially be construed to fit under either the manslaughter statute or the


Memorandum in Support of Application for a Writ of Habeas Corpus - Page 7
criminally negligent homicide statute. Under the Rule ofLenity, the proper statutory

interpretation is that this conduct constitutes criminally negligent homicide.

       By not fully explaining the differences between manslaughter and criminally

negligent homicide, counsel rendered ineffective assistance. Had Hamer known the

elements of these offenses, he would not have pied guilty to the greater offense of

manslaughter.

                                               v.
                 Ineffective Assistance of Counsel - Governing Law

       It is well established that a defendant is entitled to the effective assistance of

counsel as required by the Sixth and Fourteenth Amendments, as well as article 1,

section 10 of the Texas Constitution. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799          (1963).       Effective assistance is denied if, "counsel's

representation fell below an objective standard of reasonableness," and "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland v. Washington, 466 U.S. 668

(1984).

       To establish deficient performance, Hamer must show that his counsel's

representation "fell below an objective standard of reasonableness." Jones v. Jones,

163 F.3d 285, 301 (5'h Cir. 1998) (quoting Strickland, 466 U.S. at 688). The court

applies a highly deferential standard to the examination of counsel's performance,


Memorandum in Support of Application for a Writ of Habeas Corpus - Page 8
making every effort to eliminate the distorting effects of hindsight and to evaluate the

conduct from counsel's perspective at the time of trial. See Pitts v. Anderson, 122

F.3d 275, 279 (5th Cir. 1997). To satisfy the prejudice requirement, the record must

demonstrate that, "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to

undermine confidence in the outcome." Id. See also Nealy v. Cabana, 764 F.2d

1173, 1178 (5th Cir. 1985).       That is, "a criminal defendant alleging prejudice must

show 'that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable."' Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)

(quoting Strickland, 466 U.S. at 687). This in not an outcome-determinative test.

Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). The question

is not whether a defendant would have more likely than not received a different

verdict but for counsel's performance, but whether, "he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley,

514 U.S. 419, 454, 115 S.Ct. 419, 131L.Ed.2d490 (1995). 1



        'Although Kyles involves the determination of prejudice following the State's
suppression of evidence favorable to the defense (Brady error) (Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963)) the standard for prejudice employed in such cases is
adopted from, and is identical to, that in Strickland. United States v. Bagley, 473 U.S. 667, 682,
105 S.Ct. 3375, 87 L.Ed. 2d 481 (1985). In both circumstances, to demonstrate prejudice, a
petitioner must show that "there is a reasonable probability that ... the result of the proceeding
would have been different." Kyles, 514 U.S. at 433-434 (quoting Bagley, 473 U.S. at 682).

Memorandum in Support of Application for a Writ of Habeas Corpus - Page 9
       It has been held that, even if an attorney's manner of conducting a trial was

trial strategy, it can be so ill-chosen as to render a trial fundamentally unfair. United

States v. Rusmisel, 716 F.2d 301, 310 (5th Cir. 1983). In Baldwin v. State, 668 S.W.2d

762, 764 (Tex. App. -Houston [14th Dist.] 1984, no pet.), the court found ineffective

assistance of counsel when the attorney permitted the eliciting of inadmissible and

incriminating hearsay. The court in Lyons v. McCotter, 770 F.2d 529 (5th Cir. 1985),

held that passing over admission of prejudicial and arguably inadmissible evidence

may be a strategic decision by trial counsel, while passing over admission of

prejudicial and clearly inadmissible evidence has no strategic value and may

constitute ineffective assistance. Also, in Strickland v. State, 747 S .W.2d 59, 60-61

(Tex. App. - Texarkana 1988, no pet.), the court found ineffective assistance for

counsel's failure to object to four inadmissible extraneous offenses. See also Mares

v. State, 52 S.W.3d 886 (Tex. App. - San Antonio, pet. ref'd) (holding failure to make

objection cannot be considered reasonable trial strategy); Moore v. Johnson, 194 F.3d

586, 604 (5th Cir. 1999); Proffittv. Waldron, 831F.2d1245, 1248 (5'h Cir. 1987)

(holding tactical decisions that give no advantage to a defendant are not reasonable

and court will not engage in presumption of reasonableness under these

circumstances).

       A single error of counsel may support a claim of ineffective assistance if the

error was of such magnitude that it rendered the trial fundamentally unfair. See


Memorandum in Support of Application for a Writ of Habeas Corpus - Page 10
Nelson v. Estelle, 642 F.2d 903, 907 (5th Cir. 1981); Tress v. Maggio, 731 F.2d 288,

292-94 (5'h Cir. 1984) (failure to seek severance); Summit v. Blackburn, 795 F.2d

1237, 1244-45 (5'h Cir. 1986) (failure to object to proving corpus delecti solely by

defendant's confession); Cooke v. State, 735 S. W.2d 928, 930 (Tex. App. - Houston

[14th Dist.] 1987, pet. ref'd) (failure to object to tainted identification after illegal

arrest and to proffer of bolstering testimony when entire strategy was mistaken

identity); Sanders v. State, 715 S.W.2d 771, 776 (Tex. App. - Tyler 1986, no pet.)

(failure to raise involuntariness of confession).

       Although Strickland requires a showing of prejudice, it does not require the

defendant to show that his counsel's deficient performance, more likely than not,

altered the outcome of the case. Strickland, 466 U.S. at 693. The result at trial "can

be rendered unreliable, and hence the proceeding itself unfair, even ifthe error of

counsel cannot be shown by a preponderance of the evidence to have determined the

outcome." Id. at 694. Thus, the Strickland requirement that a defendant must show

a "reasonable probability" that the outcome of trial would have been different absent

error of counsel does not mean that Applicant must show a better than 50-50 chance.

 Strickland merely imparts the idea that "showing some conceivable effect on the

outcome of the proceeding" would not suffice to overturn a conviction. 466 U.S.

at 693.     Instead, according to Strickland, a "reasonable probability" means a

reasonable chance that counsel's mistake could have affected the outcome of the case,


Memorandum in Support of Application for a Writ of Habeas Corpus - Page 11
based upon concrete and identifiable facts and circumstances reflected in the record.

       The Strickland standard also applies when analyzing ineffective assistance of

counsel regarding a plea of guilty. Hill v. Lockhart, 474 U.S. 52 (1985); Jackson v.

State, 139 S.W.3d 7 (Tex. App. - Fort Worth 2004).

       In the case at bar, Hamer's trial counsel failed to fully investigate the facts of

this case and properly research the law. If she had done so, she would have

determined that the proper offense to charge Hamer with was criminally negligent

homicide.

       Based on these errors of counsel, ineffective assistance of counsel under

Strickland is established. Counsel failed to properly investigate this case and failed

to properly advise Hamer before he entered his guilty plea.

                                  Ground for Relief Two

       Hamer's guilty plea was not voluntary.

                                          Argument

       In the case at bar, Hamer entered a guilty plea without knowing what the State

was required to prove and without knowing that the evidence in fact showed that he

was guilty only of the lesser offense of criminally negligent homicide. He was clearly

not aware of the full circumstances concerning the law and facts of this case and

therefore his plea should be set aside. Hamer would not have entered the plea in this

case had he been fully aware of all of the facts, law and circumstances.


Memorandum in Support of Application for a Writ of Habeas Corpus - Page 12
       A guilty plea must be voluntarily and knowingly entered in order to be valid.

When a court entertains a plea agreement, it must assure itself that the plea is entered

voluntarily and knowingly. A defendant is required to be informed of all of the direct

consequences of the plea. See Fielder v. State, 834 S.W.2d 509 (Tex. App. - Ft.

Worth 1992); Ex parte Chandler, 684 S. W.2d 700 (Tex. Crim. App. 1985).

       In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 (1970), the Court stated

the following:

       "That a guilty plea is a grave and solemn act to be accepted only with care and
       discernment has long been recognized. Central to the plea and the foundation
       for entering judgment against the defendant is the defendant's admission in
       open court that he committed the acts charged in the indictment. He thus
       stands as a witness against himself and he is shielded by the Fifth Amendment
       from being compelled to do so--hence the minimum requirement that his plea
       be the voluntary expression of his own choice. But the plea is more than an
       admission of past conduct; it is the defendant's consent that judgment of
       conviction may be entered without a trial--a waiver of his right to trial before
       a jury or a judge. Waivers of constitutional rights not only must be voluntary
       but must be knowing, intelligent acts done with sufficient awareness of the
       relevant circumstances and likely consequences."

       In the case at bar, Hamer was not aware of the full consequences of his plea

and the fact that, if he was guilty, it was only a lesser offense. Thus, his plea was

involuntary.

                                               VI.

                         Request For An Evidentiary Hearing

       In order that the issues raised be fully examined and accurately resolved,

Hamer requests that the court set this matter for an evidentiary hearing.
Memorandum in Support of Application for a Writ of Habeas Corpus - Page 13
                                                     Respectfully submitted,




                                                  4fu;,~~~2
                                                     Bar Card No. 20369590

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

                                                     Attorney for Applicant


                             CERTIFICATE OF SERVICE

       Iherebycertifythatonthe i;Z,0dayof            /~                     ,2015,
a true and correct copy of the above and foregoin~ Memorandum in Support of
Application for a Writ of Habeas Corpus was delivered to the Harris County District
Attorney's Office, 1201 Franklin Street, Suite 600, Houston, Texas 77002.


                                         ~L/---




Memorandum in Support of Application for a Writ of Habeas Corpus - Page 14
                         CERTIFICATE OF COMPLIANCE

       Pursuant to TEX. R.       APP.   P. 73.1, undersigned counsel certifies that this

memorandum complies with:

1.     the type-volume limitation of TEX. R.                APP.   P. 73.l(d) because this

memorandum contains 3,591 words.

2.     the typeface requirements of TEX. R. APP. P. 73 .1 ( e) because this memorandum

has been prepared in a conventional typeface using WordPerfect XS in 14-point

Times New Roman.




Memorandum in Support of Application for a Writ of Habeas Corpus - Page 15
