                                                                           WR-80,453-04
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                          Transmitted 10/22/2015 11:10:12 AM
                                                            Accepted 10/22/2015 11:40:48 AM
                           No. WR 80,453-04                                   ABEL ACOSTA
                                                                                      CLERK

                                                              RECEIVED
EX PARTE                            §     IN THE      COURT OF CRIMINAL APPEALS
                                                   COURT OF 10/22/2015
                                                         ABEL ACOSTA, CLERK
                                    §     CRIMINAL APPEALS

WILLIAM G. DALE                     §     OF TEXAS


   MOTION TO REMAND FOR EVIDENTIARY HEARING
         AND FINDINGS AND CONCLUSIONS

TO THE HONORABLE JUDGES OF SAID COURT:

      COMES NOW, WILLIAM G. DALE, Petitioner, and makes the

following request for relief:

                                   1.

      This is a subsequent postconviction habeas corpus petition. In

cause no. 9-202-CR, pending in the 77th District Court of Freestone

County, Texas, the Hon. Patrick Simmons, Judge Presiding, Petitioner

was charged by indictment with the offense of indecency with a child,

see TEX. PENAL CODE § 21.11 (a) (1), (d). Specifically, the indictment

alleged that Petitioner, with the intent to arouse or gratify his sexual

desire, intentionally or knowingly engaged in sexual conduct with

Mallory Beatty, by touching her breast with his hand, and Beatty was a

child younger than 17 years of age and not his spouse. Petitioner

pleaded not guilty to this charge and exercised his right to jury trial.

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                Motion to Remand for Evidentiary Hearing
                               Page 1 of 7
Trial was conducted from September 6-9, 2011. The jury convicted

Petitioner of the offense. Punishment was heard before the jury, which

assessed punishment at six years confinement.

      In cause no. 9-194-CR, pending in that same court, Petitioner

was charged by indictment with the offense of aggravated sexual

assault. See TEX. PENAL CODE § 22.021 (a) (1) (B) (i), (b) (1), (e).

Specifically, the indictment alleged that Petitioner intentionally and

knowingly caused the penetration of the sexual organ of Mallory

Beatty, a child who was then and there younger than 14 years of age

and not the Petitioner’s spouse, by Petitioner’s finger. Petitioner pled

not guilty to this charge and exercised his right to jury trial. Trial was

to the same jury as in cause no. 9-202-CR. The jury convicted

Petitioner of this offense. Punishment was to the same jury. Following

the punishment hearing, the jury assessed punishment at 15 years

confinement.

                                    2.

      Petitioner filed a subsequent writ application in the trial court,

alleging that he had newly discovered evidence of factual innocence.

Specifically, Petitioner presented the affidavit of Heba Nazaal, a

witness who swore that the complainant had told her a vastly different


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                Motion to Remand for Evidentiary Hearing
                               Page 2 of 7
version of the offense—with another assailant instead of Petitioner. In

his application and brief in support of the application, Petitioner

provided affidavits showing that the factual basis for this ground for

relief was not available to him at the time he filed the initial writ

application.

                                    3.

      On October 21, 2015, the undersigned counsel received notice

from this Court that the writ had been received and submitted. This

was the first notice counsel had received of the disposition of the writ

application; he had not received any notices from the trial court

(beyond the return of the certified mail receipt card). If there were any

findings of fact and conclusions of law submitted with the writ file, they

have not been furnished to counsel as of this writing. Certainly no

evidentiary hearing was conducted.

      Regrettably, this is not the first time the trial court has so

proceeded in this case. In Petitioner’s initial writ application, the trial

court sent the writ to this Court without conducting an evidentiary

hearing or making findings of fact and conclusions of law. This Court

remanded the cause for an evidentiary hearing and appropriate

findings.


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                Motion to Remand for Evidentiary Hearing
                               Page 3 of 7
                                    4.

      There is no legitimate issue whether Petitioner satisfied the

predicate for a subsequent writ. For purposes Article 11.07, § 4 (a) (1),

a factual basis of a claim is unavailable on or before a date described in

subsection (a) (1) if the factual basis was not ascertainable through the

exercise of reasonable diligence on or before that date. See also, Ex

parte Brooks, 219 S.W.3d 396, 401 (Tex. Crim. App. 2007).

      This writ qualifies under the first subsection of Article 11.07, § 4

(a). The factual basis for the claim of factual innocence was not

available to Petitioner when he filed his initial writ application and it

could not have been discovered through the exercise of due diligence.

The affidavits of Willie Dale and Kiley Ervine, which were attached to

the writ application, established to a preponderance of the evidence

that the factual basis for the claim of factual innocence was not

available at the time of the first writ application, nor could it have been

discovered by due diligence. This is not a basis for the trial court to

have rejected this writ application.

                                    5.

      The trial court also erred in failing to conduct an evidentiary

hearing. "The burden of proof in a writ of habeas corpus is on the


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                Motion to Remand for Evidentiary Hearing
                               Page 4 of 7
Petitioner to prove by a preponderance of the evidence his factual

allegations." Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App.

1995). Petitioner’s application raised controverted and previously

unresolved issues of fact material to Petitioner’s conviction. The trial

court could not determine whether or not the new evidence and

witness were credible from a paper hearing. The trial court therefore

prevented Petitioner from satisfying his burden of proof.

                                   6.

      The issue raised in this subsequent writ application, factual

innocence, is cognizable on habeas review. In Elizondo, the court of

criminal appeals held that a bare innocence claim is cognizable in an

application for writ of habeas corpus. Ex parte Elizondo, 947 S.W.2d

202, 205 (Tex. Crim. App. 1996). Incarceration of an innocent person

offends federal due process, therefore a bare innocence claim raises a

constitutional challenge to the conviction.

      Petitioner’s writ application and brief showed that the

complainant in this case had fabricated her account of the alleged

assault. At trial, she claimed that Petitioner had sexually assaulted her

virtually in the presence of his family while she, Petitioner and his

family were watching a video in his family’s lake house.


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                Motion to Remand for Evidentiary Hearing
                               Page 5 of 7
      By contrast, the complainant told a disinterested witness that the

alleged assault occurred on a totally different occasion, under different

facts and this time Petitioner’s father, not Petitioner was the assailant.

To be granted relief on a bare innocence claim, the applicant must

show that the new evidence unquestionably establishes his innocence.

Elizondo, 947 S.W.2d at 208-09. This means that the applicant must

prove by clear and convincing evidence that no reasonable juror would

have convicted the applicant in light of the new evidence. Id. at 209. To

determine whether a habeas applicant has reached this level of proof,

the convicting court weighs the evidence of the applicant's guilt against

the new evidence of innocence. Id. at 207.

      Petitioner presented at least a prima facie case that no reasonable

juror would have convicted him in light of the new evidence. Because

his application has merit and further meets the threshold test for

consideration of a subsequent writ, the trial court could not have

properly rejected the writ without conducting a hearing and making

findings of fact and conclusions of law. Petitioner therefore prays that

the Court remand the cause to the trial court for an evidentiary hearing

and appropriate findings.




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                Motion to Remand for Evidentiary Hearing
                               Page 6 of 7
                                   Respectfully submitted,


                                   /s/ John D. Nation
                                   John D. Nation
                                   State Bar No. 14819700
                                   4925 Greenville Ave., Suite 200
                                   Dallas, Texas 75206
                                   214-800-5160
                                   214-800-5161 (facsimile)
                                   nationlawfirm@gmail.com

                                   Faith S. Johnson
                                   State Bar No. 18367550
                                   5201 N. O’Connor Blvd., Suite 500
                                   Irving, Texas 75039
                                   972-401-3100
                                   972-401-3105 (fax)
                                   fjassociates@att.net

                                   Counsel for Petitioner

                    CERTIFICATE OF SERVICE

     This is to certify that I have served a true copy of this motion on

Hon. Chris Martin, District Attorney, Freestone County, 118 E.

Commerce, Room 305, Fairfield, Texas 75840, via facsimile 903-389-

5289, on this 22nd day of October 2015.


                                   /s/ John D. Nation
                                   John D. Nation




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                Motion to Remand for Evidentiary Hearing
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