                                                                                   WR-82,849-01
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                  Transmitted 2/12/2015 2:06:38 PM
                                                                    Accepted 2/12/2015 2:26:58 PM
                                 NO. WR-82,849-01                                     ABEL ACOSTA
                                                                                              CLERK

EX PARTE                               §                                 RECEIVED
                                       §            IN THE TEXAS COURT
                                                             COURT OF CRIMINAL APPEALS
                                       §                                 2/12/2015
                                                                    ABEL ACOSTA, CLERK
                                       §            OF CRIMINAL APPEALS
ROSHAN SAH                             §


                OBJECTIONS TO THE COURT’S ADOPTION
              OF THE STATE’S “PROPOSED MEMORANDUM,
             FINDINGS OF FACT AND CONCLUSIONS OF LAW”

      Now comes Roshan Sah, Applicant, and files these objections to the trial

court’s adoption of the State’s “Proposed Memorandum, Findings of Fact and

Conclusions of Law” recommending relief be denied. In support thereof, Applicant

shows the following:

      On August 25, 2014, Applicant filed an application for a writ of habeas corpus

in which he urged that his trial counsel provided ineffective assistance in failing to

pursue a reduced punishment for acting in sudden passion. See TEX. PEN. CODE §

19.02(d). The State filed an answer in which it requested the trial court to instruct

Applicant’s trial attorney to submit an affidavit addressing Applicant’s complaint,

which he did on November 11, 2014.

      The State then filed “Proposed Memorandum, Findings of Fact and

Conclusions of Law.” In that document, the State suggested the trial court reject

Applicant’s application because the Presentence Investigation Report prepared

ahead of Applicant’s trial stated that, according to the “police version [of events],”

Applicant made the reasoned decision to murder the complainant prior to killing

himself. (St. Pr. FOF and COL at 2); (see PSR at p. 6). The State contended this



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“would have precluded the trial court from finding that the murder was the result of

an immediate influence or sudden passion,” and, in light of this, Applicant’s

counsel’s decision not to pursue a reduced punishment for acting in sudden passion

was reasonable, and could not have prejudiced Applicant. (St. Pr. FOF and COL at

2-3, 5-6). Sah then filed his Proposed Findings of Fact and Conclusion of Law in

which he explained that that was an entirely incorrect understanding of the law,

but on February 9, 2015, the trial court adopted the State’s proposal and

recommended relief be denied.

      The trial court was wrong to do so. Contrary to the State’s contention,

evidence that Applicant planned the complainant’s murder did not preclude the

court from finding that the murder was the result of an immediate influence or

sudden passion. A defendant need only prove the issue by a preponderance of the

evidence, see TEX. PEN. CODE § 19.02(d), and here, though the Presentence

Investigation Report stated that Applicant made the reasoned decision to murder

the complainant prior to killing himself, Applicant testified at his sentencing

hearing that he didn’t remember telling the detective any such thing. (PSR at p. 6;

RR2: 75). And then, on cross-examination, Applicant specifically testified the

complainant’s death “wasn’t intentional,” and that he had not told the detective it

was premeditated. (RR2: 78). Additionally, Applicant’s friend, James Moreno,

testified that Applicant told him he did not plan to murder the complainant—“he

bought [the gun] with the intentions of taking his own life. He said he never

planned on using it on her.” (RR2: 46).




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      Certainly, then, the trial court was not precluded from finding, by a mere

preponderance of the evidence, that Applicant acted in sudden passion. And, in light

of the great wealth of evidence supporting such a finding—indeed, this case is a

near textbook example of sudden passion, as Applicant’s feelings for the

complainant were of the strength that discovering her sexual activity, and receiving

her vitriolic insults, were extremely distressing, and it was undisputed at trial that

he shot the complainant immediately upon hearing as much, without any

reflection—there was a reasonable probability it would have done just that.

Counsel’s decision not to pursue such a defense was thus unreasonable and

prejudicial.

      Accordingly, Applicant respectfully requests this Court to disregard the trial

court’s findings of fact and conclusions of law and to instead adopt his proposed

findings and conclusions and grant him relief.

                                              Respectfully submitted,



                                                    /s/ Robert N. Udashen, P.C.
                                              ROBERT N. UDASHEN, P.C.
                                              State Bar Card No. 20369600
                                              rnu@sualaw.com


                                                    /s/ Brett Ordiway
                                              BRETT ORDIWAY
                                              Bar Card No. 24079086
                                              bordiway@sualaw.com

                                              SORRELS, UDASHEN & ANTON
                                              2311 Cedar Springs Road
                                              Suite 250



                                          3
                                              Dallas, Texas 75201
                                              214-468-8100
                                              214-468-8104 fax

                                              Attorneys for Applicant




                              Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of the foregoing
Objections to the Court’s Adoption of the State’s Proposed Findings of Fact and
Conclusions of Law was electronically served to the Tarrant County District
Attorney’s Office on February 12, 2015.


                                                   /s/ Robert N. Udashen, P.C.
                                              ROBERT N. UDASHEN, P.C.




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