'*)Ql§<@€}-~ OO|( /o, 11

LUKE A. STANTON
#1830011 ° TDCJ-CID Stiles Unit ‘ 3060 FM 3514 ' Beaumont, Texas 77705

Thursday, September 241 2015

Clerk of the Court

Court of Criminal Appeals gyf;idf:q\fw: w
of Texas g%lz¥£“:X\/M§[) qu
P.o. Box 12308 @©UW" 66 ‘r“»-"f`~¢““..“. A@PEALS
Ca itol Station n n V

p v SEP 23 ,;3?:)

Austin, Texas 787ll

A@@HA@@SE@,©H@FK

RE: Ex parte Luke Stanton
CCA Cause No. WR-79,389-08; WR-79/389-09; WR-79,389-10
Trl Cause No. F-ZOll-l9ll-C thc #2®; F-2011-l912-C (whc #2)7
F-ZOll-l9l3-C'(whc #2)

Dear Sir or Madam:
Please find enclosed the original: Applicant's Objections to the Trial Courts
Finding of Fact, Conclusion of Law and Order recommending that relief be denied,

to be submitted and filed.

Please have the Honorable Court of Criminal Appeals' take Judicial Notice
that the Trial Courts Findings was answered on September 04, 2015. But yet, the
Applicant received his copy on September 21, 2015, through the TDCJ Prison Legal
Mail Department, thereby, Applicant is now filing his Objections on the above
date. The Applicant has NOT received any other Notice of this Court receiving

the Trial Courts ORDER of recommendations.

Please notify the Applicant upon the Courts filings.

Sincerely/

 

u e Stanton #1830011

CC: LARA ToMLIN

Assistant District Attorney
1450 E. McKinney st. 3rd Fl
Denton, Texas 76209

 

- cAUsE No. wR-79, 389 08

TRIAL cAUSE.N@. E- 2011 1911 -c (ch #2)

11 11 ¢AUSE:No” wR 79, 389- 09 nyw@§g§
TRIAL cAUSE No. F- 2011- 1912- -c (ch #2)

CAUSE NO. WR .79, 389- …10
TRIAL CAUSE NO. F- 2011- 1913~ ~C (WHC #2)

      

IN THE
coURT oF cRIMINAL APPEALS
oF TExAs,xFRoM THE

211th JUDICIAL couRT IN
DENToN coUNTY, TEXAS

  

1lE:x.":PARTE'@»;g

609¢0’#&0'>¢0360‘>

LUKE`sTANToN

 

 

:`APPLICANT S OBJECTIONS TO THE TRIALQ COURT'S

VQ¢FJX» FINDING OF FACT, CONCLUSIONS OF LAW
AND ORDER RECOMMENDING THAT RELIEF BE DENIED

in

 

o§ the trial court adopts'the~State s proposed Finding of Eact and Conclusion of
Law, which recommended that Applicant' s application for writ of habeas corpus be

denied, on September 04, 20l5. Applicant received his copy of said ORDER on

 

;\fBASIS oF oBJEcTIoNs §"

 

§ 9 _~'»,.1

yApplicant s challenging the convictions based on the law and facts, that the

 

State Prosecutors and Defense Counsels committed "errors of a Constitutional mag-

 

.critical Stages" of the judicial process. Applicant' s 5th,

 

nitude" through-ou‘n_
6th, and l4th Amendment rights to the United States Constitution and Texas Con-§

stitution' s were violated Thus rendering Due Process violations of clearly esta-}

blished State and Federal laws. Applicant moves this Court his objections arguing:

l. The Trial_qudge is wrong on both, the law and fact;

“2- Trial§and¢Appellate Counsels did not provide effective assistance of
` counsel; and,
3. The Trial Judge makes the determination that, Applicant' s colorable

»_; showing of the factual evidence, NOT presented at trial, did not HARM
"the Applicant, .but yet gave him a fundamentally fair trial.

    
   

~HSTANDARD FOR GRANTING RELIEF

 

The THCJLP.Art. 11.07 Writ of Habeas Corpus is available only for post con-
viction relief from Jurisdiction Defects and violations of Fundamentally of Con-
stitutional Rights. See Ex parte Adams, 768 SJLZJ 281 (Tex.Cr.App. 1989).

"In a post conviction collateral attack, the burden is on the applicant to
allege and perhaps, attempt tg_prove facts which, if true, would entitle appli-
cant to relief. See Ex parte Maldorado, 688 S.W.2d ll4(1ex&xu&;» LLB), by showing
that the complained of error did, in fact, contribute to the conviction or punish-
ment. Ex parte Barber, 879 51123889 (Tex.Cr.App. 1994). And, the standard of
proof is by a preponderance of the evidence. Ex parte Adams, 768 SNLZS 281; see
also Ex parte Kunkle, 852 SNLZJ499 (Tex.Cr;App; 1993).

As further, it should be kept in mind that the Court of Criminal Appeals' is
not bound by the findings entered by the trial court either with or without a
hearing. Ex parte Ramirez, 577 SJLZd 261 (Tex.Cr.App. 1979); Ex parte Harris, 593
SJLZd 330 (Tex.Cr.App. 1979); Ex parte Bates, 640 sthdS94'(Tex.Cr.App. 1982);

Ex Acosta, 672 SNL2347O (Tex.Cr.App. 1984). However, while the Court is not bound
by the trial court's findings, case law suggests that where the findings are sup-
ported by the record the Court of Criminal Appeals should follow them. Ex part
Brandley, 781 SNLZJBS6.(Tex.Cr.App. 1989); see also Ex parte Adams, 768 SJLZd
281 (Tex.cr.App. 1989). ' ` `

APPLICANT'S CLAIMS RAISED

Applicant raised Five Grounds for relief, (Four - emanating from grady vio-
lations), all of which may be considered as two claims: (l) Prosecutorial Mis-
conduct, and (2) he was denied the effective assistance of counsels, at trial and
on Appeal:

l. "BRADY" violations by Investigative Agencies: (App.Mem. at 13)
(Denton PD Detective Reports, Video Clips and Text Messages Evidence.)

2. Prosecutor Misrepresents Physical Evidence: (App.Mem. at 16)
(Trial Testimonies and Video Clips Recording actual dates.)

3. Bad-Faith Destruction of Potentially Exculpatory Evidence:(App.Mem. at 20)
(2008 Investigative Reports, Video Clips and Text Message Evidence.)

4. Prosecutor's USE of perjured Testimony: (App.Mem. at 24)
(State Witnesses, and a Grand Jury Referral Report.) And,

5. Ineffective Assistance of Trial and Appellate Counsels: (App.Mem. at 30)
APPLICANT'S OBJECTIONS

In the State's Answer (State's Answer at 7) and State's Memorandum (State's
Mem. at 4:3), the Trial Judge adopts implying, Applicant argues there was not
sufficient evidence for a conviction. This is contrary to, Applicant's application
{for writ of habeas corpus, which clearly statesi (l) evidence was withheld, (2)

evidence presented was misrepresented¢ (3) evidence was destroyed, (4) State al-
lowed false and/or perjured testimony, and (5) Trial and Appellate counsels were

_ 2 _

ineffective in adequately representing their client. In that, "sentences and
subsequent incarceration are results of a fundamental unfair trial." (App.Mem.

at 2.) The Trial Judge is wrong, the sufficient evidence for the convictions were
misrepresented and/or NOT all of the evidence was presented to the Factfinders

to make a rational decision in the convictions.

As further, this Honorable Court of Criminal Appeals' should take Judicial
Notice of the State's Answer, AGREES with Applicant's Proposed Findings of Fact,
that the State, withheld and destroyed exculpatory evidence, and allowed perjured
State witnesses testimony, as addressed in Applicant's Response to the State's
Memorandum and Proposed findings of Fact and Conclusion of Law, submitted on the
iith day of september 2015. '

ny Applicant moves the Court - Factual Errors and Legal Errors

 

Applicant's objections to the Trial Judge's Finding of Fact in the ORDER, and
cites the record in support of the facts proffered herein:

1. . The Trial Judge incorrectly concludes that ADA Michael Dickens turned over
all exculpatory or favorable evidence.§

The Trial Judge?s Finding of Fact, at 2, line 3 and 4, that:WMichael Dickens'
affidavit states -- he provided ... all known ... evidence" (App. Exhibit AA).
And, "there are emails and copy of discs ... turned over ..."(State's Exhibit C-H).

Applicant disagrees with the Trial Judge on ADA Michael Dickens' affidavit. In
such, Mr. Dickens' affidavit was generated prior to Applicant filing a motion for
favorable evidence to the accused on April 01, 2015, to wit: Video Clips Datum,
(Discription, Date, and Time) of actual recordings.on the Denton County Sheriff's
Office - Criminal Investigation Division's Foray Server (see App. Exhibit M:l),
in conjuction with several other request (see App. Mem. at 17 and 18), only to be
resisted and/or denied. In Banks v. Dretke, 540 U.S. 668,696 (2004), the Supreme
Court aptly stated: "A rule thus declaring 'Prosecutor may hide, defendant must
seek,' is not tenable in a system Constitutionally bound to accord defendants due

process." (See App. Response to the State's-- at 7).

Next, Applicant disagrees with the Trial Judge that all known evidence was
turned over to the defense. The State concedes the Denton PD Detectives Investi-
gative Report, statements, and trial testimony were withheld from the trial court
and the fdefense. (See State's Answer at 6).

Finely, Applicant disagrees with the Trial Judge that all video clips and

text messages were turned over to the defense. Defense received five video clips

and no text messages, nor did he read any text messages. (See App.Mem Exhibit S.)

Nevertheless, the State sent Ten video clips and text messages to the EIGHTH Dis-
trict Court of Appeals' of Texas. (See State's Trial Exhibit 16.)

25 The Trial Judge errors in determining that Applicant does not address how
withheld exculpatory and/or.mitigating evidence were favorable to his defense.
The Trial Judge's Finding -- at 2, line 6 and 7, that: "Denton PD Detectives

and their investigative reports or missing text messages does not address a fav-

orable defense by Applicant, nor shown withheld evidence was material.

First, Applicant disagrees with the Trial Judge, a recapitulation of the sup-
pressed statement to the Denton PD Detectives in 2009 was essential to its inves-
tigation, and reveals that they were replete with significant inconsistencies in
the complainants trial testimony. (See App. Mem. at 14.) Discloser would therefore
have raised opportunities for the defense to attack the thoroughness and even the
good faith of the investigation, and allowed the defense to question the probative

value of certain crucial evidence. (See App.Mem at 14); Kyles, 115 S.Ctat l57l-73.

Next, Applicant disagrees with the Trial Judge, that: Text messages were not
favorable, this was impeachment evidence. It is not evidence of guilt or innocence,
but yet, evidence of credibility and truthfulness of the complainants, and their
motivation to testify falsely against the accused. The withheld evidence allowed
the State to deny Applicant the right to present a meaningful defense to effec-
tively cross-examine the complainants R.B. and A.A. on their proposed summer-time
"wild conduct" plans of "sex and drugs". Moreover, the text talk show the signi-
ficant inconsistencies in the trial testimony (State's Trial Exhibit 16), and pre-
vents the State Prosecutor from vouching for the credibility of the challenged
witness'es. (RR6:5-6);(See App.Mem. at 15); Vela v. Estelle, 708 F.2d 954, 1983
U.s. App. LExIs 26082 (5th cir.).

Next, Applicant disagrees with the Trial Judge, that: the video clips were not
favorable to Applicant. RJL secretly took videos and testified that they are videos
of Applicant, rubbing her feet and legs; there is no sexual abuse in any of her
videos. (RR3:lO-ll). The jurors never got a full understanding of what actually
took place without all.the evidence to make a rational decision in the verdict.

(See App. Mem. at 16.)

Finely, Applicant disagrees with the Trial Judge, that:Applicant has not shown

any allegedly withheld evidence was material. (Trial Courts Finding -- at 21 Ln 7).

Accordingly;;in`the Merriam - Webster's`Dictionary of LawE'Defines:

Material Evidence: evidence that is likely to affect the determination
of a matter or issue; Specif : evidence that warrants reopening of a
claim or reversal of a conviction because but for the circumstances that
the evidence was unavailable the outcome of the first proceeding would
have been different. Id at 173 (2014)

Material Fact: a fact that affects decision making: as a: a fact upon
which the outcome of all or part of a lawsuit.depends b: a fact that

would influence a reasonable person under the circumstances in mmaking
an investment decision. Id at 184,(2014).

Brady requires that the prosecution disclose evidence in its possession that
is materially favorable to the accused. 373 U.S. at 87; Youngblood v. West Vir-
ginia, 547 U.S. 867, 869 (2006). (App.Mem. at 16). In the case at bar, all evi-
dence was material and needed inrelations to the credibility and truthfulness of

all three complainants, for the jurors to make a rational decision in the verdict.

3. The Trial Judge erroneously determine that Applicant is challenging the
evidence underlying his convictions.

First, Applicant disagrees with the Trial Judge, that: the jury was instru-
cted that the State's statements ... not supported by the evidence are to be
wholly disregardedi (State's Answer, Exhibit K-M);(Trial Courts Findings --- at
3, line 9). In that, Prosecution mislead the jurors that the 2008 cases were com-
mitted, in addition, to the 2009 case against R.B. that were both "Ruled-out".
Then incredibly, the Prosecution vouches for the credibility of the complainants
during closing arguments, when the non-disclosed evidence would have refuted the
State's case. The jurors believed as they heard the prosecution plead their cases
against the Applicant. The improper remarks by a prosecutor “are a sufficient
ground for Habeas relief if they are so prejudicial that they render the trial
fundamentally unfair." Harris v. Cockrell, 313 F.33238, 245 (5th Cir. 2002). Such
unfairness exists only if the prosecutor's remarks evince either persistent and
pronounced misconduct or ... the evidence was so insubstantial that (in probabi-
lity) but for the remarks no conviction would have accured." 1§, at 245. "The
relevant question is whether the prosecutors' comments so infected the trial with

unfairness as to make the resulting conviction a denial of due process." Darden

f v. Wainwright, 477 U.S. 1681 181 (1986).

Finely, Applicant disagrees with the Trial Judge that: there was no evidence

that the State altered any phone evidence. (Trial Courts Findings -- at33, line 10)

>..

Applicant asserts that there is evidence of the State altering the phone-video
clips. (See App.Mem. at 19); (App.Mem. Exhibit M:4.) Several factures should be
considered, (A) the dates and times of the video clips are impossible, (B) the
DCSO Extraction Report, clearly shows date and times of downloading evidence off
the phone, to their computer system, (C) there's a recorded image, with a disp~
layed date of "06%06-2011", when ONLY the DCSC had the phone in their possession,
(see App.Mem. Exhibit M:3)v and, (D) the State Prosecution still hides this.rela-
ted evidence. Ibid at 4.

As stated above, the State's Prosecution still hides the actual video clips
recordings, Mr. Dickens, interjects his testimony of a June Ol, 2011, date of the
recordings to the complainant R.B. (in which does not remember), when he knew the
dates were incorrect, to bolster the credibility of the witness, to obtain the
conviction. The State concedes that, "even.if the evidence was altered ... the
content of the video was important, not the dates on the video." (State's Answer
at 8). The Trial Judge is wrong, these cases of truthfulness and credibility 1
issues are the basis of the convictions, adjacent to the State's tampering with
the evidence to obtain the convictions. Thereby, again, Applicant disagrees with
the Trial Judge, that: the State did not use false evidence to convict Applicant.
(See Trial Courts Proposed Finding of Fact at 3, line 11.)

Applicant agrees with the Trial Courts and Judge's recommendation that the
Court should determine whether evidence gave the jury a false impression.
(See State's Answer at 7.)

4. The Trial Judge errors.in determining that Applicant suffered no prejudice
from the Destroyed Exculpatory and/or Mitigating Evidence-

Applicant disagrees with the Trial Judge, that: There was no evidence that
the "ruled out" reports or content on R.BJs smartphone were destroyed in Bad

Faith. (Trial Courts Proposed Findings of Fact at 3, Line 13.)

Applicant asserts the destroyed evidence was potentially exculpatory, the
failure to preserve the evidence hindered defense counsel's presentation of his
case to the jury, for the jury to make a rational decision in the convictions.
(See App.Mem. at 21.) And the likelihood the evidenc would have enabled the App-
licant to exonerates himself appears to be greater than it was in Trombetta, but
here, like Trambetta, the State did make use of the material evidence in its own

case in chief.

In Arizona v. Youngblood, 488 U.S. 51, Justice STEVENS opinion, that the H
Supreme Court has held three factors are critical importance to evaluation of

_ 6 _

a CaSe: First, at the time the State failed to preserve the evidence and thus.

negligently lost potentially valuable evidence, they had at least as great
interest in preserving the evidence as did the person later accused of the
crime. Second, although it is not possible to know whether the lost evi-
dence would revealed any relevant information, it is unlikely that the def-
~endant was prejudiced by the State's omission. In examining the witnesses
and their summation, ... the State failed to preserve evidence ... The State
allowed evidence to be destroyed or lost whose contents or quality are an
issue, you may infer that the true fact is against the State's interest. As
result, the uncertainty as to what the evidence might have proved was turned
to the defendant's advantage. Third, the fact that no juror could chose'l
to draw the permissive inference that proper preservation of the evidence
could have demonstrated that the defendant did not commit a crime suggest
that the lost evidemce was "immaterial."

The Supreme Court cases make the above clear that "[t]he proper standard of
materiality must reflect the Supreme Court's overriding concern with justice of
finding of guilt," and that a State's failure to turn over (or preserve) poten-
tially exculpatory evidence, therefore, "must be evaluated in the content of the
entire record." U.S. v. Agurs, 427 U.S. 97, 112 (l976)(footnotes omitted); see
also California v. Trombetta{_467 U.S. 479, 488 (1984)(the duty to preserve evi-
dence "must be limited to evidence that might be expected to play a significant

role in the suspect[s defense."). (See App. Mem. at 23.)

As further, with the above factors in mind, in Arizona v. Youngblood, Justice

 

STEVENS opinion announced a proposition of law that is much broader than necessary
for the Texas Court of Criminal Appeals' to decide this case. The Court aptly stated:

"If a criminal defendant can show 'bad faith' on the part of the Police
and/or State, failure to preserve potentially useful evidence constitutes
a denial of due process of law. "

In addition, to the Supreme Court Justice STEVENS opinion: "there may well
be cases in which the defendant is unable to prove that the State acted in
'bad faith$ but.in which the loss or destruction of`evidence`is nonetheless
so critical to the defense as to make a criminal trial fundamentally unfair."

Youngbiooé, 488 U.s. et 60

In Brady v. Maryland, 373 U.S. 83 (1963) and U.S. v. Agurs, 427 U.S. 97 (1976).
Those cases in no way require that government actions that deny a defendant access
to material evidence be taken in bad faith in order to violate due process. In
Otherwords, §£a§y and §gu£§ could not be more clear in their holdings that a pro-
secutor's bad faith in interfering with a defendant's access to material evidence

is not an essential part of a due process violation.

The negligent or reckless failure to preserve important evidence just cannot

be "in accord with ... normal practice."

5. The Trial Court Judge erroneously determines that Applicant has not shown
that Investigator Crow made any misleading statements about the 2009 inter-
views with the intent to deceive the Court or the jury.

(Trial Courts Proposed Findings of Fact at 3, Line 13. )

Applicant d$sagrees with the Trial Judge, DCSO Investigator Crow ("Inv. Crow")
mislead and/or falsified his requested Grand Jury Referral Report and then tes- 4
tified to his misleading or false report. In that, Inv. Crow never contacted the
Children's Advocacy Center ("CAC"), or Investigator J.Edwards ("Inv. Edwards") on
November 09, 2009, prior to the interviewing process'es, nor was he present during
such procedures. (See App.Mem. at 24, 26);(App.Mem. Exhibit C:l4j. After Inv.Crows
interview with Applicant, and ploygraph examination, Inv. Crow unfounded his 2009
case. (See App.Mem. Exhibit.C:lB);(App.Mem. at 28). Inv. Crow found NNO Truth" in
the complainants K.BJs alleged allegation, and R.B. never alleged any sexual abuse

inuher statements. (See App.Mem. at 4);(App.Mem. Exhibits C:12-l3.)

Deceiving the Court

 

Applicant asserts that Inv. Crow knowingly and intentially filed a false and/
or perjured Governmental Report to the Court, to obtain an Indictment against the
Applicant. (See App.Mem. Exhibit E:l);(App.Mem. at 26.)

With the above in mind (Ibid at 8, line 5), Inv. Crow received the 2009 case
on November 10, 2009, interviewed Applicant, and unfounded his case. On August
16, 2011, Inv. Crow received a phone call from ADAAMichael Dickens with the Child
Abuse Prosecution Unit, "mentally".coercing Inv. Crow to file his 2009 case as a

Grand Jury Referral with the Denton County DNs Office. (See App.Mem. Exhibit E:l).

In that/ Inv. Crow falsely filed that:

"On Monday morning November 9, 2009 Denton County Sheriff's Office Invesr
tigator Crow #1062 met with CPS Investigator Edwards, ... K.B., ...'R.B.,
... and K»S. ... for a follow-up investigation."

"During the interviews both girls described their step-father L.A.S.
[Applicant].touching and grabbing their crotohes and vaginas on numerous
occasions ... P (see App.Mem. at 26)§(App.Mem. Exhibit E:l).

Incredibly, Inv. Crow's Governmental Report Document) Grand Jury Referral
Report, is Contrary to, the CAC, Inv. Edwards' Governmental Report Document, Inv-

estigative Report dated January 14, 2010, in which states:

h On November lO, 2009, Iirealized jurisdiction is in the County. I emailed
Sgt. R. Griggs with DCSO, he responded back and assigned the case to Investi-

gator_ Crow. Then she reports, I spoke with Inv. Crow regarding the case. ly
will drop off the girl's interviews ..." . (See App. Mem. Exhibit C: 14. )

_ 3 _

On November 09,2009, both girl's were given A/V Forensic Interviews.
Notwithstanding, both girl's did not describe their step-father L.A.S. sex-
ually abusing them:”R.BJs statement was stated she was there because of the o
problems that the family is having with her sister [K.B.]. (See App.Mem. at 4);
(App. Mem. Exhibit C:12-l3.)

'Here, Investigator Crowuchose to testify falsely in the Grand Jury Proceeding

or file a false affidavit report form. Bryson v. U.S., 396 U.S. 64 (1969).

Deceiving the Jury

 

Applicant asserts that Investigator Crow knowingly and intentionally presented
false testimony to the jury, and the State knowingly used Inv. Crow's perjured
testimony to obtain Applicant's convictions. In that, with the above in mind,

Investigator Crow testified too:

State calls Inv. Crow to the stand. During the prosecutions process of
influencing the jury with Inv. Crow's twenty Seven years experience at the DCSO/
as the "GURU" investigator over the juvenile crimes (RR4:167), State promptly
takes Inv. Crow to the 2009 investigation. The State asked him how the case got
generated to him: '

[Crow]: CPS ... called me. and November 9th, 2009, is when I actually went
to the CAC and observed the forensic interviews with CPS. (RR4:168&1@")

[State]: So November 9th, 2009 ... you go down there for the forensic L
interview ... is that right?

[Crow]: Yes ma'am
[State]: and you ... sat behind the one~way glass and watched the interviews?

[Crow]: Yes, ma'am (RR4:168‘169)

Basically, Inv. Crow's;testimony was material evidence and harmful to the
Applicant's convictions. The jury heard in detail, Inv. Crow went to the CAC/
sat¢behind the one-way glass with the CPS investigators, observed the interviews
in detail of K.B. and R.B. claiming the alleged sexual abuse. But yet, did not
file his case until August 2011. And the State carefully tailored Inv. Crow's
testimony with his thirty one years of experience to why he did not arrest the

Applicant or file his case.

[State]: Investigator Crow, in any of those years, have you ever made a
mistake other than this one? (RR4:182)

Then the State moves to elicit Inv. Crow's testimony/ if he knew that the
girl's were at the CAC the year before, [in 2008].

_ 9 _

[State]: ... you can't say for certain whether or not you knew about that
when you did this investigation?

[Crow]: That's correct.

Incredibly, the CAC/CPS Investigative Report by Inv. Edwards, and on the
A/V Forensic Interview Videos of K.B., R.B., and K£S. all state differently. Both
K.B. and R.B., stated "we came to a place like this last year", and K.S. stated:
"CPS made a report a few years ago." (See App.Mem. at 4-5):(App.Mem. Exhibits C:
12-14). In addition, Inv. Edwards puts in the Investigative Report, "I learned
that in February of 2008 the B--- girl's were interviewed and made NO out-cry of

sexual abuse." (App;Mem. at 28);(App.Mem. Exhibits C:12-l4.)

“`Here, Inv. Crow's inadmissible testimony impacked the credibility of the com-
plainants that resulted in the convictions. In fact, there can be little doubt
that once the jury had retired to deliberations, the testimony which was impro-
perly admitted probably became the most single most important piece of evidence,
testimonial, against defendant, for "[t]he jury thus had before it the government's
whole case against the defendant, or had but very slight effect.“ U.S. v. Brown,
451 F.2d 1231, 1233-34 (5th Cir. 1971). Moreover, the error is not rendered harm-
less by the fact that DCSO "agents had testified and were cross-examined on the
same subject." §rgwn,'supra, 451 F.2d at 1234. Finally, this was a case in which,
on both the Sexual Assault of a Child and false swearing, the issue of paramount
importance was whether the defendant had acted with willful intent. Of course, the4
jury believed that Petitioner could not possibly have hoped for acquittal on any
of the charges. But yet, "the prosecution failed to inform the defense and the
trial court that one of its witnesses had testified falselyJ'In Napue v. Illinois/
360 U.S. 264 (1959), the Court aptly stated "that a conviction obtained by the
knowing use of such testimony must fall, and suggest that the conviction is inva-
lid even when the perjured testimony is 'not the result of guile or desire to
prejudice ... for its impack was the same, preventing, as it did, a trial that

could in any real sence be termed fair.'" £d. at 270.

6. The Trial Courts and Judge error in determining the Applicant received

Effective Assistance of Trial and Appellate Counsels¢

Applicant disagrees with the Trial Judge,/that: Mr. Moore received all excu-
lpatory or favorable evidence (Trial Courts Proposed Findings of Fact at 3, Ln 17).
In that, Applicant asserts:throughout many area's of his objections, his appli-
cation for writ of habeas corpus, many request, letters, and motions to the trial

courts requesting for the "Video Clips actual recordings DATUM [Descriptions/
date and times]." And the State still withholds and/or hides.exculpatory evidence. 4

_]_0_

Dccordingly, both Trial and Appellate counsels, whose conduct when coupled
denied Applicant an opportunity for the process of obtaining a New Trial, a
"Critical Stage" process for which Applicant had sound bases for success.
Applicant requested from Trial Counsel, to file for a New Trial, only to be
informed that Appellate Counsel had to file.,Then in October 1012, upon receiving
the Appellate Counsel, at the county Jail, I requested Steven P. Poston to file
for a New Trial, only to resisted and denied. (See App.Mem: Exhibit W).

Texas Rules 21.2 states: "A motion for new trial is a prerequisite to pre-
senting a point of error on Appeal only when necessary to adduce facts not in the
record."

Rule 21.3 (e): when evidence tending to establish the defendant's innocence

has been destroyed or withheld, thus preventing its production at trial.
Applicant has presented overwelmmng evidence withheld from the trial courtsl
Ineffective Trial Counsel

Attorney's performance is deficient when it falls "below an objective standard of
reasonableness" under prevailing professional norms and according to the necessity
of the case. Ex parte Moore, 395 S;W.3d 152, 156-57 (Tex.Cr.App. 2013). Often,.thej
courts refer to standards published by the American Bar Association.and other
similar sources as guides to determine prevailing professional norms. Strickland,
466 U.S. at 688-89 (citing ABA Standards for Criminal Justice (2nd ed. 1980)).
However, publications of that sort are only guides because no set of detailed
rules can completely dictate how best to represent a criminal defendant. See ld.
at 688-89. The analysis of counsel's preformance begins with a strong presumption
that their actions fell within the wide range of reasonable professional assis-

tance. ldf at 689; See Frangias v. State, 392 S.W.3d 642¢ 653.(Tex.Cr.App. 2013).

An attorney's deficient performance prejudices an accused when there is a
reasonable probability that the outcome of the judgment would have been different
but for counsel's deficieency. Cox v. State, 389 S.W.3d 817, 819 (Tex.Cr.App.ZOlZ).
A reasonable probability has been defined as a probability sufficient to under-

mine confidence in the outcome."ld, (quoting Strickland, 466 U.S. at 694®.

With the above in mind, the State's answer clearly admits that some evidence
was turned over, if that evidence is in the same as Applicant's Memorandum Exhibits
then Trial counsel is ineffective for not presenting a favorable defense, thereby,
prejudiced his client by his deficient performance. The outcome would have been
different.

_1]__

t l

Ineffective Appellate Counsel

 

Applicant and Trial Courts agree, Applicant advised his Appellate Counsel
5 of the merits addressed in Applicant's application for writ of habeas corpus.
(App.Mem. at 30);40§410;(Application at l4);(State's Answer at l4);(App.Mem.
Exhibit W). But rather than investigating the issues, Counsel merely interviews
the lead prosecutor and trial counsel, relying on an unpeachable response.
-Counsel's failure to investigate for melyable appealable evidence, making it
unlikely that effective evidence would be uncovered, was unreasonable strategy.

Soner v. Quarterman, 476 F.3d 349, 357-358 (5th`Cir.-2007)

The American Bar Association states:

"It is the duty of the lawyer to conduct a prompt investigation of
the case and to explore all avenues leading to facts relevant to the
merits of the case and the penealty in the event of conviction. The
investigation should always include efforts to secure information in
the possession of the prosecution and law enforcement authorities.

ABA Standard 4-4.1

This_Qourt of Criminal Appeals' should find that Applicant's Appellate Coun-

sel was\ineffective for failing to address the merits on appeal.

CONCLUSION AND PRAYER

 

Based on the foregoing, the Court should reject the Trial Courts Proposed
Finding of Fact and Order, order an evidentiary hearing on one or more of the

claims raised by the Applicant, grant the Application for writ of habeas corpus,

and order any other appropriate relief.
Respectfully Submitted,

September 24, 2015 ’ O@,£é (Sé/Lé:"

Date Luke Stanton #1830011
TDCJ - CID Stiles Unit
3060 FM 3514
Beaumont, Texas 77705

 

CERTIFICATE OF SERVICE

 

I hereby certify that on the 24th day of September 2015, a true and correct
copy of the above foregoing was sent to LARA TOMLIN, Assistant District Attorney

at 1450 E. McKinney St. 3Fl., Denton Texas 76209(/::§‘£?/¢2;2 §

Luke Stanton

 

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