                                                                                         WR-83,226-01
                                                                           COURT OF CRIMINAL APPEALS
                                                                                           AUSTIN, TEXAS
                                                                         Transmitted 7/27/2015 12:00:00 AM
                                                                            Accepted 7/27/2015 8:11:38 AM
                                                                                            ABEL ACOSTA
                           IN THE 410TH DISTRICT COURT                                              CLERK
                         OF MONTGOMERY COUNTY, TEXAS
                                                                              RECEIVED
                                                                       COURT OF CRIMINAL APPEALS
EX PARTE                                         §                            7/27/2015
                                                 §       CAUSE NO.       ABEL ACOSTA, CLERK
                                                                     11-01-0582-CR-(1)
NOEL BAIRD NORWOOD, III                          §

            APPLICANT’S OBJECTIONS TO THE TRIAL COURT’S
             FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Noel Baird Norwood, III, files Applicant’s Objections To The Trial Court’s

Findings Of Fact And Conclusions Of Law and would show as follows:

                                                 I.

    THE TRIAL COURT’S FINDINGS AND CONCLUSIONS ARE NOT
   SUPPORTED BY AND DIRECTLY CONFLICT WITH THE RECORD

      Applicant filed the habeas corpus application on October 17, 2014 (H.C.R. 5-

22).1 He did not file a brief or exhibits in support of the application at that time

because he was waiting to see how trial counsel, Scott Ramsey and Clyde Burleson,

would respond to the allegations of ineffective assistance of counsel. The trial court

ordered Ramsey to file an affidavit by December 18, 2014 (H.C.R. 29-30). However,

Ramsey and Burleson did not file their affidavits until May 12, 2015 (H.C.R. 41-50).

The State filed an answer and proposed findings of fact and conclusions of law on

June 15, 2015 (H.C.R. 51-66). Those proposed findings asserted that, in several

respects, applicant had not presented adequate evidence or arguments in support of

      1
          Applicant cites to the habeas record as, “H.C.R.”
his allegations. Applicant filed a brief and exhibits and proposed findings of fact and

conclusions of law on June 19, 2015 (H.C.R. 71-165). The State filed a supplemental

answer and amended proposed findings and conclusions on June 22, 2015.2

However, unbeknownst to either party, the trial court already had signed the State’s

first proposed findings verbatim on June 19, 2015. The trial court’s findings are not

supported by and directly conflict with the record in several important respects.

      Regarding the first allegation of deficient performance, the trial court found

that there was no opinion testimony regarding the credibility of K.W. or whether

sexual abuse occurred (H.C.R. 68; Finding 5).3 To the contrary, applicant cited

numerous instances in the record where prosecution witnesses testified that K.W.

behaved consistent with a victim of child abuse, that other evidence corroborated that

K.W. was credible, and that the witnesses believed that she was sexually abused

(H.C.R. 112-14). Accordingly, this Court should reject this finding.

      Regarding the second allegation of deficient performance, the trial court found

that applicant did not allege what objection counsel should have made to Kasidy

Norwood’s lack of concern for the complainant, K.W. (H.C.R. 68; Finding 6). To

the contrary, applicant asserted that the testimony of Veronica Sjolander, the sex

crimes investigator, that Kasidy did not seem concerned about K.W. when
      2
         The district clerk did not include the State’s supplemental answer and amended
proposed findings in the habeas record.
      3
          The trial court also made no conclusions of law as to whether counsel performed
deficiently or applicant was prejudiced in this regard.


                                           2
Sjolander interviewed her constituted the functional equivalent of Sjolander’s

improper opinion that K.W. was truthful and, therefore, Kasidy’s skepticism was

incredible (H.C.R. 118).      Applicant specifically asserted that this testimony

violated Rule of Evidence 702 and Schutz v. State, 957 S.W.2d 52 (Tex. Crim.

App. 1997). Therefore, the record directly contradicts the trial court’s finding that

applicant did not allege what objection counsel should have made, and this Court

should reject the finding.

      Regarding the third allegation of deficient performance, the trial court found

that the State did not imply that Kasidy had recently fabricated the story that K.W.

recanted the allegation against applicant (H.C.R. 68; Finding 7). The trial testimony

directly contradicts this finding. The State called Carla Cobb, a CPS supervisor, in

rebuttal after the defense presented Kasidy’s testimony about K.W.’s recantation.

Cobb testified that applicant spoke with CPS on October 5, 2010, but did not assert

that K.W. told him that she lied about the allegation, and that Kasidy did not assert

that K.W. admitted that she lied about the allegation or that she slept with K.W. on

September 23 (6 R.R. 145-46, 148). Therefore, the State implied through Cobb’s

rebuttal testimony that Kasidy had recently fabricated the story that K.W. recanted

the allegation against applicant because she did not previously report the recantation

to CPS. Accordingly, testimony that Kasidy sent applicant a Facebook message

within four days of K.W.’s outcry asserting that K.W. admitted that she lied about



                                          3
the allegation was admissible to rebut the State’s inferences that applicant and

Kasidy had recently fabricated K.W.’s recantation. This Court should reject the

trial court’s finding regarding this allegation.4

       Also regarding the third allegation of deficient performance, the trial court

found that there was no credible evidence that Kasidy would have testified that she

sent a Facebook message to applicant about K.W.’s recantation (H.C.R. 68; Finding

8). Applicant filed a copy of the Facebook message, which he obtained from

Ramsey’s file, as an exhibit in the habeas proceeding (H.C.R. 155; AX 2).

Furthermore, applicant’s mother attests that his family gave Ramsey and Burleson a

copy of the message when the family hired them to represent applicant (H.C.R. 95;

AX 3). Where Kasidy testified that K.W. recanted the allegation at the hospital, and

where applicant introduced evidence in the habeas proceeding that Kasidy sent

applicant a Facebook message that referenced the recantation four days after K.W.

made outcry, the trial court unreasonably found that there was no credible evidence

that Kasidy would have testified that she sent the Facebook message. Either she

would have admitted that she sent the message, or applicant would have been entitled

to introduce the message as evidence of the prior inconsistent statement. Regardless

of how applicant could have elicited this information, the record clearly demonstrates


       4
          Similarly, the Court should reject the conclusion that counsel was not ineffective in
failing to elicit evidence of the Facebook message because the State did not claim that Kasidy
recently fabricated the assertion regarding K.W.’s recantation (H.C.R. 69; Conclusion 5).


                                              4
that the jury would have learned that she sent the message had counsel tried to elicit

that fact. The Court should reject the trial court’s finding regarding this allegation.

      Regarding the fourth and fifth allegations of deficient performance, the trial

court found that applicant presented no credible evidence that K.W. was coached

to make a false outcry of sexual abuse; no credible evidence to what Tricia Wiley

(aka Patricia Acker) and Jordana Hebert would have testified; and no credible

evidence that they would have testified favorably to applicant (H.C.R. 68-69;

Findings 10, 12, 14). These findings could not be less accurate. Applicant presented

uncontroverted evidence that Hebert, the CPS caseworker who was assigned to the

case during the criminal investigation, removed K.W. and her siblings from the

home of their maternal grandmother, Ellie Ballow, because Hebert suspected that

Ballow was coaching K.W. to speak negatively of applicant (H.C.R. 164-65; AX 8).

Evidence that a CPS caseworker believed that Ballow was coaching K.W. after she

made outcry would have corroborated applicant’s theory that K.W. also was being

coached before she made outcry. Also in support of that theory, applicant presented

evidence in the habeas proceeding that Wiley, who used to be married to Kasidy’s

brother, was available and willing to testify that Ballow had a motive to coach

K.W. to fabricate the allegation against applicant; that Ballow made statements to

Wiley before the outcry suggesting that she believed that applicant was abusing

K.W.; and that Wiley had a favorable opinion of applicant’s safe, moral treatment



                                           5
of K.W. and the other children in the home (H.C.R. 158-61; AX 5).5 The State did

not rebut any of this evidence. Therefore, applicant did, in fact, present credible

evidence that K.W. was coached and that Wiley and Hebert would have testified

favorably for him had counsel called them. The Court should reject the trial

court’s findings to the contrary.6

                                      CONCLUSION

       This Court should reject the findings of fact and conclusions of law; review

the case de novo; file and set it for submission; and grant habeas corpus relief in

the form of a new trial.

                                                   Respectfully submitted,

                                                   /s/ Josh Schaffer
                                                   Josh Schaffer
                                                   State Bar No. 24037439

                                                   1301 McKinney, Suite 3100
                                                   Houston, Texas 77010
                                                   (713) 951-9555
                                                   (713) 951-9854 (facsimile)
                                                   josh@joshschafferlaw.com

                                                   Attorney for Applicant
                                                   NOEL BAIRD NORWOOD, III



       5
         Also see AX 9, the affidavit of Patricia “Tricia” Wiley Acker, which the district clerk
omitted from the habeas record but apparently has sent this Court in a supplemental transcript.
       6
          Similarly, the Court should reject the conclusions that counsel was not ineffective in
failing to discover evidence from Wiley and Hebert (H.C.R. 69; Conclusions 6-7).


                                               6
                         CERTIFICATE OF SERVICE

      I served a copy of this document on Jason Larman, assistant district attorney,

by email on July 26, 2014.

                                             /s/ Josh Schaffer
                                             Josh Schaffer




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