No. 33701

1

Ex Parte § In The 13th deicial
§ District Eourt of
Timothy James washington § Navarro Eounty, Texas

F%E©EWED UN

APPLIEA'NTS oBJEcTIUNs vm FINDINGS -nigogrzr;°ATc@FCRH\/JBNALAPPEALS

‘ AND CUNCLUSIUNS UF LAU JUL ?<‘z§%

 

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Erounds Une and Two ,

 

Findings 13 and 14:

 

(A)
1.)

2.>

3.)'

(E)

2.)

(E)

Applicant objects to findings 13 and 1& on grounds that:
Edward Strange at no time, either prior to trial or during trial,
identified the Applicant as the "black male passenger" Strange

/

claimed to have seen inside of Eorman's trwck;

Un the morning of the burglary Edward Strange saw Applicant in
Applicants yard speaking with police whom had Gorman detained in
Applicants yard and Strange never mentioned to.either of the
several officers he was interviewed by that a black male was

invo]A/ed ir1 any rnanner. (5ee-Applicants Memorandum3 pgs. 3-5).

Police left Applicants residence withnut arresting Applicant

following their interviews with Edward Strange. (Id.)

Findings 15, 16, and 17:

 

Applicant objects to findings 15, 16 and 17 on grounds that:
Edward Strange admitted that it was possible for Eorman to move

the safe by himself; (3 RR 115);

Eorman told Deputy Bailey that he used a piece of carpet to move

the safe to his trucl<. (L+ RR 25) (SEE-State's E><hibit 55).

Findings 1B and 19:

 

`Applicant objects to findings 18 and 19 on grounds that:
They are based on statements made by Gorman and are not independent,

non-accomplice evidence.

(D)

2.

(E)

2.

Z.

(F)
.)

1

Finding 26:

Eround Three

v

Applicant pbjects to finding 26 on grounds that:
It inaccurately reflects the information contained in the judgement
and is intentionally misleading. The judgement indicates that App-

licant pleaded WTrue" to the enhancement paragraph. (BR 57):

Finding 26 is proven false by finding 25, which accurately reflects
that-applicanj'"did not enter a plea of 'True'".

Ground Four

Findings 29 thru 33:

 

Applicant objects to findings 29 thru 33 on grounds;that:
Vicki winningham.(Juror 35) never stated that she would not give
more credibility to the testimony of'a law enforcement officer

solely because he was with law enforcement;

Seven venremembers were excluded based on challenges for cause for
giving the exact same answer as winningham. (See-11.U7 Amnicatimn-

-(Ground Four).

5everal police witnesses testified in support of the States case.

(See-Applicants Memorandom5 at pgs. 3-5).

Eround Five

Applicant objects to finding 34 on grounds thath
lt is misleading. Edward Strange.never identified Applieant, either

pretrial or at trial;

Trial counsel opened the door to Eormans testimony that he went to

Applicants home to purchase”crack cocaine. (h RR 29);

The State emphasized that portion of Gormans.testimony in its

closing arguments; (5 RR h1);
The State further argued that Ziplock baggies found in Applicants
house was evidence that Applicant was a drug dealer. (5 RR AZ-AZ);

Trial counsel voiced no objections to the States argument concern-

ing Applicant being a drug dealer. (ld.)

(B)

(A)

Eround Six

Finding h7:

Applicant objects to finding h7 on grounds that:.

Trial counsel did not object on the basis of lack of notice. (See-

Eourt of Appeals Memo. Upinionxat p. 14-15).

CUNCLUSIUNE UF LAU

 

Erounds Une and Two

 

Eonclusion 3:

Applicant objects to conclusion 3 as follows:

Applicant suffered egregious harm because:

a)

b)

C)

d)

e)

f)

Q)

h)’

The States closing argument was 14 pages long with 10 af those pages

covring what Eorman testified to- (5ee-Apphrantshwmomymom,Pg.1D);

The State conceded that "the only complete story that we get of the

burglary comes from Bobbie Eorman;" (5 RR LS);

The jury was instructed that Applicant could be convicted based on

the conduct of Bobbie Gorman based on the law of_parties._(ER 57);

The jury_was never instructed that it could not convict Applicant

unless independent evidence tended to connect Applicant. (ER 57);

Trial counsel erroneously believed that the law of parties in-
struction was sufficient to instruct the jury on the accomplice

witness rule. (5.RR 10)9

There was insufficient independent evidence tending to connect_

Applicarrt to the tmlrglary. (See- Applicants-Memorandum,'Pg. 7-8);

Trial counseld failure to have command of the accomplice wit-
ness rule constitutes deficient performance under Strickland.

See Andrews v. State, 159 S.M.'Ed -98, 102 (Tex. Erim. App. 2005);

Trial counsels deficient performance prejudiced Applicant.

See Smith v. State, 332 S.w. 3d 425 (Tex. Erim. App. 2011)

 

(B)

2.)

(E)

2,)

3.)

(D)

1.)

2.)'

(E)

Ground Three

Eonclusions 6 and 7:

 

Applicant objects to conclusions 6 and 7 on grounds that:
They are erroneous and disproved by the objective record.(See-

Applicants Memorandum, p. 13-14);

Applic'ants sent.ence.~i;`s void. (See- .Ex Parte Rich, 194 S.hj. Z)d 508 (Tex.
0rim. App. 2006); Turk v. State, 067 B.M. 2d 0833 BBB (TeX. App-Houston 1993).

Eround Four

 

EDnclusions B thru 10:

Applicant`objects to conclusions B thru 10 on grounds that:
Juror 35, Vicki.winningham was not qualified to sit on the petit

panel. (See- Applicants Memorandum, p. 14-16);
Trial counsel failed to challenge winningham for cause. (Id.);

Trial counsels deficient performance prejudiced Applicant. See-
Roby v. State, 970 B.M. 2d 1, 10 (Tex. Erim. App. 1990); See also -
United States v. Martinez-Salazar, 120 S.Et. 774, 702 (2000)

 

Eround Five

Eonclusions 11 and 12:

 

Applicant objects to conclusions 11 and 12 on grounds that:
It was objectively unreasonable for trial counsel to open the door to testimony
by Eorman that Eorman went to Applicants home to purchase crack

cocaine. See Robertson v. State, 107 S.M. 3d 475, 405 (Tex. 0rim. App 2006);

There was in fact a legal objection to be made to the States closing
argument that Applicant was a drug dealer. 5ee-1ex. MHes of deence
403, AUA(b).

Ground Six

Eonclusions 13(a), (b), and (c):

Ground Six cont'd

Applicant objects to conclusions 13(a),(b),and(c)on grounds that:
1.) Eonclusionv13 (a) is clearly erroneous and unsupported by both the

objective record af trial and the opinion issued by the Bourt of»

-Appeals- Trial counsel.did not object based on lack of notice.

(3 RR 20-52) CEourt of Appeals opiniong at p. 14-15);

2.) 00nclusion 13 (b) is irrelevant to the fact that Applicant was
denied his confrontation rights concerning the person whom Gorman
claimed communicated threats against him.and his family on behalf
of the Applicant. The Btate introduced hearsay concerning those
alleged threats. The Etate never introduced evidence that the
person whose hearsay was introduced was unavailable. (See[hawfomjv.

washington, 541 U.S. 36,BB (2004);

3.) Conclusion 13 (c) is contradicted by the evidence and the law.
Telling the jury that: 5
"[Applicant]is trying to deny responsibility. And he's trying to
avoid any kind of consequences by threatening to harm Eobby Eorman
or his family. I'm going to ask you, danlt;let'that guy get away
with two crimes by committing another one.". (5 RR 560 Constitutes
unfair prejudice that.substantially outweighed any probative_value.
(5ee Basey.v. 5tate{_215’5.w. 3d 070 (Tex. Brim. App. 2007) see also 1 `

l 01d Chief V.'United States, 519 0.5. 172 (1997).

(F) EDnclusion of Law 16

 

Applicant objects to conclusion of law 16 on grounds that:

1.) The conclusion is contradicted by the objective record. The evidence
concerning the alleged threat made by Applicant through a third party
was introduced to prove the truth of the threats: "[Applicant] is
trying to deny responsibilityx And he's trying to avoid any kind of
consequences by threatening to harm Bobby Gorman or his family."

(5 RR 56).

 

' wherefore,`Premises CGnsideredy the habeas trial courtls findings and

 

Conclusions should be rejected, and relief should be granted based on
the facts contained in the objective record, the evidence presented
by Applicant, and the prevailing law of the Eourt of Eriminal'Appeals
and the.U.S: Supreme Court. '

Dated: JUlV 291 2015 t b"V/’Z}l‘%i

Timothy.James washington

 

EERTIFICATE 0F SERVIBE

 

l hereby certify that I mailed a true and correct copy of-the foregoing
to the Navarro Eounty District Attorney's office by mailing such to his

normal mailing address. /

 
   

names ;luly 20, 2015 ` by;_ _ 7
` l Timothy James washington
TDEJ‘#_01764357
Eastham Unit
2665 Prison Road #21
Lovelady,"Texas
75051-5609

 

