                                                                                            WR-81,718-01
                                                                             COURT OF CRIMINAL APPEALS
                                                                                              AUSTIN, TEXAS
                                                                             Transmitted 4/20/2015 2:49:04 PM
                                                                               Accepted 4/20/2015 4:33:27 PM
                                                                                               ABEL ACOSTA
                          IN THE COURT OF CRIMINAL APPEALS                                             CLERK
                               FOR THE STATE OF TEXAS
                                    AUSTIN, TEXAS                               RECEIVED
                                                                         COURT OF CRIMINAL APPEALS
                                                                                4/20/2015
                                                                           ABEL ACOSTA, CLERK
EX PARTE                                       §
                                               §
                                               §         NO. WR-81, 718-01
                                               §
DAVID LEN MOULTON                              §


                          APPLICANT'S REQUEST FOR REMAND
                              FOR EVIDENTIARY HEARING

TO THE HONORABLE JUDGES OF SAID COURT:

        NOW COMES the Applicant, DAVID LEN MOUL TON, and submits this Request for

Remand for Evidentiary Hearing and would show the following:

                                                   I.

        On December 11, 2014, the Court of Criminal Appeals issued an order remanding

this case to the trial court to engage in fact gathering. The court's order stated that, "the

trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, §3(d)." The

Court order also stated:

       "This application will be held in abeyance until the trial court has resolved the
       fact issues. The issues shall be resolved within 90 days of this order. A
       supplemental transcript containing all affidavits and interrogatories or the
       transcription of the court reporter's notes from any hearing or deposition,
       along with the trial court's supplemental findings of fact and conclusions of
       law, shall be forwarded to this Court within 120 days of the date of this
       order."

                                                   11.

        Following the issuance of this order, Applicant filed, in the trial court, "Applicant's

Request For An Evidentiary Hearing" (copy attached). In response to this motion, the trial

court, on January 23, 2014, issued an "Order Denying Applicant's Request For An


Applicant's Request for Remand for Evidentiary Hearing - Page 1
Evidentiary Hearing and Order on Attorney Affidavit." In this order, the trial court directed

that trial counsel submit an affidavit in response to the allegations raised in the writ

application. Trial counsel's affidavit was due within 30 days of the trial court's order, which

made the affidavit due February 22, 2015.

                                                 111.

       As of this date, nothing further has occurred on this case. Trial counsel has not filed

an affidavit, the trial court has not gathered any evidence or made the findings ordered by

the Court of Criminal Appeals. The deadline for all of these actions has now passed.

                                                 IV.

       Based on the facts set out herein, Applicant requests that the Court issue an order

directing that the district court hold an full evidentiary hearing on this writ application.

       WHEREFORE, PREMISES CONSIDERED, Applicant requests thatthe Court issue

this order.

                                               Respectfully submitted,


                                                  Isl Garv A. Udashen
                                               GARY A. UDASHEN
                                               Bar Card No. 20369590
                                               gau@sualaw.com

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

                                               Attorney for Applicant




Applicant's Request for Remand for Evidentiary Hearing - Page 2
                                  CERTIFICATE OF SERVICE

        I, the undersigned, hereby certify that a true and correct copy of the foregoing
Applicant's Request For Remand for Evidentiary Hearing was forwarded to the Cass
County District Attorney's Office, P. 0. Box 839, Linden, Texas 75563, on this the 20th day
of April, 2015.


                                         Isl Garv A. Udashen
                                       GARY A. UDASHEN




Applicant's Request for Remand for Evidentiary Hearing - Page 3
                                     WRIT NO. 2008F00339-A
                                  TRIAL COURT NO. 2008F00339

. EXPARTE                                          §         IN THE DISTRICT COURT
                                                   §
                                                   §         5TH JUDICIAL DISTRICT
                                                   §
 DAVID LEN MOULTON                                 §         CASS COUNTY TEXAS


            APPLICANT'S REQUEST FOR AN EVIDENTIARY HEARING

 TO THE HONORABLE JUDGES OF SAID COURT:

         NOW COMES the Applicant, DAYID LEN MOULTON, and submits this request

 for an evidentiary hearing on this Application and would show the Court the following:

                                                       I.

         On December 17, 2014, the Court of Criminal Appeals ordered this court to gather

 additional facts in order to resolve the factual issues raised in this case. A copy of the

. Court's order is attached. In the court's order, the trial court is authorized to use any means

 set out in Tex. Code Crim. Proc. art. 11.07, Sect. 3(d) to resolve these factual issues. One

 of the means set out in this provision is to hold an evidentiary hearing. Applicant requests

 that the court set this matter for a hearing.

                                                       II.

         A live evidentiary hearing is the best way for the court to resolve disputed factual

 issues. This was recognized as true by Presiding Judge Keller in her concurring opinion in

. Ex Parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005). In Byars, Judge Keller stated:

         "The Confrontation Clause reflects a judgment about how the reliability of
         testimony can best be detennined. The Clause commands that reliability be
         assessed by testing in the crucible of cross-examination. That judgment is

 Applicant's Request For Au Evidentiary Hearing - Page 1
        valid regardless of the circumstance that the Confrontation Clause does not
        apply to the State.
        . . . adversarial testing is the constitutionally prescribed method of assessing
        reliability, and it 'beats and bolts out the Truth much better' than the procedure
        used here."

        For these reasons, Applicant prays that the court will set this Application for an

evidentiary hearing.

                                                     Respectfully submitted,
                                                           .l~,.0·
                                                                 ../
                                                      . o1.:/7(/ ./7' 4·/ -4.~
                                                     /{/          L_./~7
                                                                                 -
                                                                                 ~-
                                                 /

                                                     GARY A. UDASHEN
                                                     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

      I, the undersigned, hereby certify that a true and correct copy of the foregoing
Applicant's Request for An Evidentiary Hearing was mailed to the Cass County District
Attorney's Office, P. 0. Box 839, Linden, Texas 75563, on this the "?('"--day of January,
2015.




Applicant's Request For An Evidentiary Hearing - Page 2
             IN   Ti~IE     COURT Of CR!MiNAl APPEALS
                                 Of TEXAS
                                         NO. WR-81,718-01


                        EX PARTE DAVID LEN MOULTON, Applicant


                  ON APPLICATION FORA WRIT OF HABEAS CORPUS
                 CAUSE NO. 2008Jll00339-A IN THE STH DISTRICT COURT
                                 FROM CASS COUNTY



        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article l 1.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court fuis application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and

sentenced to sixty years' imp1isomuent. The Sixth Conrt of Appeals reversed the judgment of

conviction. Moulton v. State, 360 S.W.3d 540 (Tex. App.-Texarkana 2011). We reversed the

judgment of the court of appeals. Moulton v. State, 395 S.W.3d 804 (Tex. C1im. App. 2013).

        Applicant now contends, among other things, that trial counsel failed to object on

Confrontation Clause grounds when affidavits the medical examiner relied on were read to the jury,

request a limitiag iastmction after the affidavits were read to the jmy, and request a continuance after
                                                                                                      2

the State disclosed the affidavits during trial. The trial court made findings of fact and conclusions

oflaw and recommended that we deny relief. We believe that the record is no adequate to resolve

Applicant's claims.

       Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S,W.2d 114, 115 (Tex. Crim. App. 1999). ill these

circumstances, additional facts are needed. As we held in Ex parteRodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the approp1iate forum for findings of fact. The trial court

shall order trial counsel to respond to the above claims. The tiial court may use any means set out

in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).

        Applicant appears to be represented by counsel. Ifhe is not and the trial court elects to hold

a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to

be represented by counsel, the trial comt shall appoint an attorney to represent him at the hea1ing.

Tux. CODE CRIM. PROC. mt. 26.04.

        After reviewing counsel's response, the trial comi shall determine whether counsel's conduct

was deficient and Applicant was prejudiced. The trial court shall also make any other fmdings of

fact and conclusions oflaw that it deems relevant and approp1iate to the disposition of Applicant's

clainl for habeas corpus relief.

        This application will he held in abeyance until the trial comihas resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental ti·anscript containing all

affidavits and iutenogatories or the transcription of the court reporter's notes from any hea1ing or

deposition, along with the trial comi's supplemental fmdings of fact and conclusions of law, shall

be f01warded to this Court within 120 days of the date of this order. Any extensions of time shall
                               3

be obtained from this Court.




Filed: December 17, 2014
Do uot publish
                                  CAUSE N0.2008F00339-A                      FiLEJ Fl)[\ RECORD
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EXPARTE                                       §
                                              §
                                              §                                   JAHlf. i',LE<:RTSOM
                                                                                    O!STRiCT CLERK
                                              §
                                              §                              BY---                    DEPUTY
                                              §
DAVID LEN MOUL TON                            §               CASS COUNTY, TEXAS

  ORDER DENYING APPLICANT'S REQUEST FOR AN EVIDENTIARY HEARING
                              AND
                  ORDER ON ATTORNEY AFFIDAVIT

       Following a jury trial, Applicant was convicted of murder and sentenced to sixty years in

the Texas Department of Criminal Justice - Institutional Division. The Sixth Court of Appeals

reversed the judgment of conviction. Moulton v. State, 360 S.W.3d 540 (Tex. App. - Texarkana

201 !). However, the Texas Court of Criminal Appeals reversed the judgment of the appellate

court. Moulton v. State, 395 S.W.3d 804 (Tex. Crim. App. 2013).

       Following the entry of the Court of Criminal Appeals' judgment, Applicant filed an

Application for Writ of Habeas Corpus.         In his application, Applicant argued, among other

things, that he was denied effective assistance of counsel. Specifically, Applicant argued that his

trial counsel was ineffective because he: (l) failed to object on Confrontation Clause grounds

when affidavits the medical examiner relied upon were read to the jury; (2) failed to request a

limiting instruction after the affidavits were read to the jury; and (3) failed to request a

continuance after the State disclosed the affidavits during trial.

        In response to Applicant's application, the trial court made findings of fact and

conclusions of law recommending that the Court of Criminal Appeals deny Applicant's

requested relief. On or about December 17, 2014, the Court of Criminal Appeals issued an order

stating that it believed the record was not adequate to resolve Applicant's ineffective assistance
of counsel claims. To obtain habeas corpus relief for ineffective assistance of counsel under the

standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), an applicant must show

that counsel's performance "was deficient and that a probability exists, sufficient to undermine

our confidence in the result, that the outcome would have been different but for counsel's

deficient performance." Ex parte While, 160 S.W.3d 46, 49 (Tex. Crim. App. 2004). Counsel's

performance is deficient if it -is, shown to have fallen below ·an· objective. standard of

reasonableness. Id. at 51; Strickland, 466 U.S. at 687-88.

        In order to assist the trial court in meeting its duties, counsel must be permitted to address

the allegations set forth above. Pursuant to the foregoing, it is hereby

        ORDERED that counsel for Applicant herein shall submit an affidavit which discusses

the foregoing allegations raised by Applicant concerning his representation at trial. It is further

        ORDERED that the Clerk of the Court shall furnish a copy of the Applicant's

application to counsel, who shall respond to this Order within thirty (30) days from the date of

the entry of this Order. It is further

        ORDERED that Applicant's Motion for an Evidentiary Hearing is DENIED. Upon

receipt and review of trial counsel's affidavit, the trial court shall determine if an evidentiary

hearing is necessary. In the event the trial court detennines that a hearing is necessary, the

 appropriate notices will be filed and sent to all parties in a timely manner.

        SO ORDERED this z;~/-b           day of January, 2015.




                                                             D!STRlCT JUDGE
