                        PD-1597-15

                      NO. _____________ PD

                            IN THE

                      COURT OF CRIMINAL

                           APPEALS

                        OF TEXAS
       ___________________________________________

                           EX PARTE

                        JAMES AGBEZE
                           Petitioner,

_________________________________________________________

             Petition in Cause No. 1288928 from the
            TH
         180 District Court of Harris County, Texas and
                   the Court of Appeals for the
                       14TH District of Texas
_________________________________________________________

        PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

                                  TOM ABBATE
                                  440 LOUISIANA ST, STE 200
                                  HOUSTON, TX 77002
                                  T: 713.223.0404
                                  F: 800.501.3088
                                  tom@tomabbatelaw.com
                                  SBOT # 24072501

  December 10, 2015               ATTORNEY FOR PETITIONER
              IDENTITIES OF PARTIES AND COUNSEL

PETITIONER:                       JAMES AGBEZE

PRESIDING JUDGE:                  HON. CATHERINE EVANS
                                  180th District Court
                                  Harris County Criminal Justice Center
                                  1201 Franklin, 18th Floor
                                  Houston, Texas 77301
                                  (713) 755-6344

HABEAS COUNSEL FOR STATE:         MR. STAN CLARK
                                  Assistant District Attorney
                                  Harris Co. District Attorney’s Office
                                  1201 Franklin, Ste 400
                                  Houston, Texas 77002
                                  (713) 755-5800

HABEAS COUNSEL:                   MR. TOM ABBATE
                                  440 Louisiana, Ste 200
                                  Houston, Texas 77002
                                  (713)-223-0404




                              2
                                                  TABLE OF CONTENTS


IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2
INDEX OF AUTHORITIES........................................................................................................... 4
STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6
STATEMENT OF THE CASE....................................................................................................... 6
STATEMENT OF PROCEDURAL HISTORY ............................................................................. 8
QUESTION PRESENTED FOR REVIEW ................................................................................... 9
REASON FOR REVIEW ............................................................................................................... 9
The Law Regarding Appellate Review of 11.072 Habeas Generally.............................................. 9
Analysis ......................................................................................................................................... 10
PRAYER FOR RELIEF ............................................................................................................... 12
CERTIFICATE OF SERVICE ..................................................................................................... 13
CERTIFICATE OF COMPLIANCE ............................................................................................ 13
APPENDIX ................................................................................................................................... 14




                                                                         3
                                          INDEX OF AUTHORITIES
Cases
Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007) .......................................................... 9
Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)............................................................ 10
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) ....................................................... 10
Ex parte Scott, 190 S.W.3d 672 (Tex. Crim. App. 2006) ............................................................... 9
Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ............................................................... 9
Statutes
Tex. Code Crim. Proc. art. 11.072 .................................................................................................. 9




                                                                  4
                      NO. _____________ PD

                               IN THE

                      COURT OF CRIMINAL

                              APPEALS

                             OF TEXAS

         ___________________________________________

                            EX PARTE

                         JAMES AGBEZE
                            Petitioner,

 _________________________________________________________

             Petition in Cause No. 1288928 from the
              TH
         180 District Court of Harris County, Texas and
                   the Court of Appeals for the
                       14TH District of Texas
__________________________________________________________

        PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
                APPEALS OF TEXAS

  James Agbeze, petitions the Court to review the judgment affirming
       The denial of his Application for Writ of Habeas Corpus
  Pursuant to Article 11.072 of the Texas Code of Criminal Procedure




                                  5
              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would assist to resolve whether the evidence was legally

sufficient to support the conviction obtained against the Petitioner in this case.

                          STATEMENT OF THE CASE

      During the investigation of the conviction at issue, Appellant was approached

by one of the investigators in this case, who solicited him for a bribe. Appellant was

informed that if the requested funds were provided, a report would be generated

allowing him to avoid prosecution for the crime at issue in this case. Appellant

refused to provide the bribe, and was then informed by the investigator that he would

face prison time for failing to do so.

      Subsequently, Appellant was indicted for submitting a series of fraudulent

Medicaid reimbursement claims. The jury convicted Appellant of theft of property

by a government contractor with an aggregated value of $1,500 or more, but less

than $20,000, assessed punishment at seven years community supervision, and

imposed a $10,000 fine. The trial court ordered Appellant to spend 90 days in jail as

a condition of community supervision and to pay $18,169.45 in restitution.

      On the appeal of the trial, Appellant argued that (1) there was insufficient

evidence to prove that he intentionally or knowingly committed theft or that

individual over-charges were part of a larger criminal scheme to allow the theft

amounts to be aggregated and tried as one offense and that (2) the trial court abused


                                           6
its discretion in ordering him to pay $18, 169.45 in restitution. The Court of Appeals

denied Applicant’s grounds for relief and affirmed the judgment of the trial court.

Applicant then filed a Petition for Discretionary Review with the Texas Court of

Criminal Appeals, but was denied. Applicant’s subsequent Motion for Rehearing

was also denied.

      During the pendency of the above appeals, the investigator in question was

indicted for bribery. The investigator entered a plea of guilty to the charge and was

convicted under the terms of a plea bargain.

      Subsequently, Appellant filed the instant Application for Writ of Habeas

Corpus pursuant to Article 11.072 alleging that he was actually innocent of the crime

and that the state had committed a Brady violation by failing to disclose the

corruption of its investigator to trial counsel. After the submission of affidavits, the

habeas court entered findings of fact and conclusions of law dismissing Appellant’s

allegations and ordering that all requested relief be denied.




                                           7
                STATEMENT OF PROCEDURAL HISTORY

      This is an appeal from the Habeas Court’s DENIAL OF RELIEF and

FINDINGS OF FACT AND CONCLUSIONS OF LAW in Appellant’s

APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO ARTICLE

11.072. Appellant filed a NOTICE OF APPEAL on MAY 7, 2015.

      The court of appeals rendered its decision affirming Petitioner’s conviction

on November 5, 2015. Petitioner did not file a motion for rehearing, and the decision

of the court of appeals became its final ruling on November 20, 2015. This petition

was then filed with the clerk of the court of appeals within 31 days after such final

ruling.




                                         8
                   QUESTION PRESENTED FOR REVIEW

      Did the Trial Court abused its discretion in denying Appellant’s
      requested relief?

                             REASON FOR REVIEW

The Law Regarding Appellate Review of 11.072 Habeas Generally

      "Habeas corpus is an extraordinary remedy and is available only when there

is no other adequate remedy at law." Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex.

Crim. App. 2007). Article 11.072 establishes the procedures for an applicant in

Appellant's situation to seek habeas corpus relief "from an order or a judgment of

conviction ordering community supervision." Tex. Code Crim. Proc. art. 11.072, §

1. The statute expressly provides that writ relief is not available "if the applicant

could obtain the requested relief by means of an appeal under Article 44.02 and Rule

25.2, Texas Rules of Appellate Procedure." Id. § 3(a).

      An applicant for habeas corpus relief must prove his claim by a preponderance

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex

parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing

the trial court's order denying habeas corpus relief, the facts are viewed in a light

most favorable to the trial court's ruling. See Kniatt, 206 S.W.3d at 664. The

reviewing court will uphold the trial court's ruling absent an abuse of discretion. See

id.


                                          9
       Almost total deference is afforded to the trial court's determination of the

historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819

(Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis,

219 S.W.3d 335 (Tex. Crim. App. 2007). Likewise, the reviewing court will defer

to the trial court's application of the law to the facts, if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. See id.

Analysis

       The habeas court abused its discretion in denying Appellant’s requested relief.

Appellant provided evidence sufficient to show that he was entitled to a new trial

based on theories of actual innocence and a Brady violation. Further, habeas counsel

reviewed all of the evidence provided by the state, and pointed out to the court that

the reports generated during the investigation of Appellant failed to detail, or even

mention, Nnadi’s involvement.

       The habeas court, however, found the affidavit of Jesse Mack to be credible

despite the inconsistencies contained therein. Mack initially stated that Nnadi was

involved solely as an “observer since there was an investigative auditor assigned and

already working on the case.” Therefore, he was not listed as a participant in the

interview. Further, Mack stated that Nnadi did not have input as either an auditor or

investigator at any time.




                                            10
        However, Mack also stated that he and Nnadi met with Appellant at least twice

during the pendency of the investigation. Further, Mack stated that Nnadi did

participate in preparing for the trial of Appellant. Therefore, Nnadi’s involvement

was more than solely as an observer.

        Finally, the criminal complaint and corresponding affidavit show that at least

the Federal Bureau of Investigations was aware of Nnadi’s corruption as far back as

2007, although it appears to have decided not to do anything about the matter until

2014.

        Therefore, Appellant proved his allegations by a preponderance of the

evidence and the habeas court abused its discretion in denying the requested relief.




                                          11
                             PRAYER FOR RELIEF

      ACCORDINGLY, this Court should GRANT this PETITION FOR

DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the

question of whether the evidence against the Petitioner was legally sufficient to

support his conviction.

      Petitioner further prays for all relief to which he may be entitled.

                                               Respectfully submitted,


                                               ______________________________
                                               TOM ABBATE
                                               440 LOUISIANA ST, STE 200
                                               HOUSTON, TX 77002
                                               T: 713.223.0404
                                               F: 800.501.3088
                                               tom@tomabbatelaw.com
                                               SBOT # 24072501

                                               ATTORNEY FOR PETITIONER




                                          12
                        CERTIFICATE OF SERVICE


      This is to certify that on the day of DECEMBER 8, 2015 a true and correct

copy of the above and foregoing Petition for Discretionary Review was served on

the Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston,

Texas 77002, by FAX (713.755.5809).


                                         ______________________________
                                         TOM ABBATE




                     CERTIFICATE OF COMPLIANCE

      I hereby certify that there are 1534 words contained in this document.


                                         ______________________________
                                         TOM ABBATE




                                        13
APPENDIX




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Envelope Details


  Print this page

  Envelope 8141588
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             12/08/2015 03:12:22 PM
   Case Number
   Case Description
   Assigned to Judge
   Attorney                               Thomas Abbate
   Firm Name                              Tom Abbate Attorney at Law
   Filed By                               Thomas Abbate
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.00
   Total Court Case Fees                  $0.00
   Total Court Filing Fees                $0.00
   Total Court Service Fees               $0.00
   Total Filing & Service Fees            $0.00
   Total Service Tax Fees                 $0.00
   Total Provider Service Fees            $0.00
   Total Provider Tax Fees                $0.00
   Grand Total                            $0.00
   Payment
   Account Name                           Mastercard 7944
   Transaction Amount                     $0.00
   Transaction Response
   Transaction ID                         13265551
   Order #                                008141588-0

   Petition for Discretionary Review
   Filing Type                                         EFile
   Filing Code                                         Petition for Discretionary Review
   Filing Description
   Reference Number
   Comments
   Status                                              Rejected
   Fees
   Court Fee                                           $0.00
   Service Fee                                         $0.00
   Rejection Information
   Rejection     Time            Rejection Comment
   Reason
                 12/10/2015      This petition is untimely; please resubmit your petition with a motion for
   Other
                 05:38:13 PM     extension of time to file.


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