                                                                                                       WR-81,718-01
                                                                                      COURT OF CRIMINAL APPEALS
                                                                                                       AUSTIN, TEXAS
                                                                                      Transmitted 8/12/2015 9:44:07 AM
                                                                                       Accepted 8/12/2015 10:05:44 AM
                                                                                                        ABEL ACOSTA
                        IN THE COURT OF CRIMINAL APPEALS                                                        CLERK
                             FOR THE STATE OF TEXAS
                                  AUSTIN, TEXAS                                        RECEIVED
                                                                                COURT OF CRIMINAL APPEALS
                                                                                       8/12/2015
EXPARTE                                          §                                ABEL ACOSTA, CLERK
                                                 §
                                                 §        NO. WR-81,718-01
                                                 §
DAVID LEN MOULTON                                §


                                   WRIT NO. 2008F00339-A
                                TRIAL COURT NO. 2008F00339

EXPARTE                                          §        IN THE DISTRICT COURT
                                                 §
                                                 §        STH JUDICIAL DISTRICT
                                                 §
DAVID LEN MOULTON                                §        CASS COUNTY TEXAS


      APPLICANT'S OBJECTIONS TO SECOND MEMORANDUM ORDER
      RECOMMENDING DENIAL OF REQUEST FOR POST-CONVICTION
       RELIEF UNDER ART. 11.07. CODE OF CRIMINAL PROCEDURE


TO THE HONORABLE JUDGES OF SAID COURT:

        NOW COMES the Applicant, DAYID LEN MOULTON, and submits these

Objections to Second Memorandum Order Recommending Denial of Request for Post-

Conviction Relief Under Art. 11.07, Code of Criminal Procedure and would show the Court

the following:

                                                     I.

        Applicant incorporates and reurges all of his previous objections and arguments.




Applicant's Objections to Second Memorandum Order Recommending Denial of Request for Post-Conviction Relief
Under Art. 11.07, Code of Criminal Procedure - Page 1
                                                    II.

        Additionally, Applicant objects to the failure of the trial court to hold an evidentiary

hearing on this case. The trial court received and accepted an affidavit from trial counsel.

The second set of findings from the trial court are based entirely on trial counsel's affidavit.

However, the assertions in trial counsel's affidavit have not been subjected to cross-

examination and, thus, the trial court cannot legitimately base a decision on that affidavit.

Moreover, trial counsel's affidavit is internally inconsistent and fails to set out a legitimate

basis for the acts and omissions alleged to have constituted ineffective assistance of counsel.

        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 determined. The Clause commands that reliability be
        assessed by testing in the crucible of cross-examination. That judgment is
        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 objects to the failure of the court to hold a hearing.

                                                   III.

        Additionally, Applicant would point out that trial counsel's affidavit is subject to

challenge in the following ways:

1.      Failure to Make Crawford Objection on Statement Read to the Jury.

        This is the point on which trial counsel's affidavit most clearly fails to provide a basis

Applicant's Objections to Second Memorandum Order Recommending Denial of Request for Post-Conviction Relief
Under Art. 11.07, Code of Criminal Procedure - Page 2
to deny the Applicant's ineffective assistance claim.

        The state was allowed to have written statements from witnesses read to the jury when

these witnesses did not testify.         These were highly damaging statements that clearly

influenced the jury against Applicant. It is clear that objections based on the Confrontation

Clause of the United States Constitution and Crawford v. Washington, 541 U.S. 36 (2004)

would have been well taken. They would have either resulted in the exclusion of this

evidence or a reversal on appeal. Trial counsel failed to make this objection, although he

made other objections to this evidence. Nevertheless, trial counsel states that, "Crawford

objection, if sustained, basically means that the witnesses may, and in my judgment, very

likely would have been brought forward to testify live at trial." (Affidavit, p. 3). Counsel

also state that he made a strategic decision not to make a Crawford objection. (Affidavit, p.

4). Essentially, counsel is stating that he made a strategic decision to not make an objection

that would have excluded this very damaging evidence, because to do so would have resulted

in the witnesses testifying live. Rather than resolve the issues, trial counsel's affidavit is a

further demonstration that a hearing is absolutely necessary. In fact, the affidavit of trial

counsel raises several questions that can only be resolved in a live evidentiary hearing where

counsel can be asked questions about the statements in the affidavit. These questions are:

1.      Why did trial counsel make objections based on hearsay and T. R. Evid. 402, 403 and

404 ifhe actually did not want these statements excluded from evidence?

2.      Iftrial counsel's strategy was to allow these statements into evidence in order to avoid

the prosecution calling these witnesses to testify, then why did he make any objection to their


Applicant's Objections to Second Memorandum Order Recommending Denial of Request for Post-Conviction Relief
Under Art. 11.07, Code of Criminal Procedure - Page 3
admissibility?

3.      Is trial counsel stating that he considered a confrontation objection and decided not

to make it because he thought that objection would have been sustained and the statements

excluded?

4.     Did trial counsel have some specific knowledge or information that the witnesses

whose statements were being read to the jury in violation of the confrontation clause were

available to testify? Were they at the courthouse or even in the county?

5.     If the state had these witnesses available to testify, then why did they read their

statements to the jury rather than call them to testify?

6.      Were these witnesses really available to testify?

        Accepting trial counsels' affidavit as a sufficient recitation of the ineffective

assistance claim on this point is an adoption of trial counsel's internally inconsistent

explanation. This is certainly not a reasonable basis on which to resolve this issue.

        Nevertheless, ifthe Court of Criminal Appeals chooses not to order an evidentiary

hearing, and rather to decide this question based on the paper record, the result should be the

granting of relief. The Court of Appeals' opinion correctly noted that these statements were

inadmissible under Crawford and the Confrontation Clause. Trial counsel failed to make this

objection. The harm from the admission of this evidence is obvious. Trial counsel's attempt

to justify the failure to object based on a trial strategy reason does not withstand the slightest

scrutiny. Thus, based on this record, writ relief should be granted.




Applicant's Objections to Second Memorandum Order Recommending Denial of Request for Post-Conviction Relief
Under Art. 11.07, Code of Criminal Procedure - Page 4
2.     Failure to Request Limiting Instruction Under T. R. Evid. 705(d) Concerning
Use of Affidavit Testimony.
      Trial counsel states in his affidavit that a limiting instruction may not have been

proper since the trial court ruled that the defense had opened the door to the reading of these

statements. He also stated that limiting instruction "can have the opposite effect by ( 1) either

being misunderstood or even ignored by the jury and (2) by calling additional attention to

matters the defense would prefer the jury not focus on." (Affidavit, p. 5).

        These statements in the affidavit should be subjectto cross-examination. Specifically,

counsel should be asked:

1.      Since these statements were not direct evidence as to the offense on trial, is it not true

that they were admitted only for a limited purpose, thus making a limiting instruction

appropriate?

2.      In what way would a jury misunderstand a limiting instruction?

3.      Does counsel always forego limiting instructions for the reasons set out in this

affidavit?

4.      Is it not true that without a limiting instruction, the jury was free to consider these

statements for any purpose, and that was harmful to the defense?

3.      Failure to Request a Continuance

        Defense counsel's affidavit states that he did not request a continuance after he

received exculpatory documents during trial because no additional time was necessary to deal

with this information. (Affidavit, p. 6). Counsel should be cross-examined about what he

did in order to address these documents, and what further investigation he could have done


Applicant's Objections to Second Memorandum Order Recommending Denial of Request for Post-Conviction Relief
Under Art. 11.07, Code of Criminal Procedure - Page 5
had he requested a continuance.

        In his affidavit, trial counsel also addresses matters that the Court of Criminal Appeals

did not ask for evidence on in the remand order. The following are Applicant's response to

counsel's affidavit on those points.

                                      ADDITIONAL POINTS

4.    Failure to Make Adequate Objections to the Defendant Being Prosecuted By a
Private Attorney.

        Applicant's contention was that trial counsel should have made a due process

objection on this point but failed to do so. Trial counsel's affidavit does not address this

argument.

5.      Failure to Recall the Medical Examiner, Dr. McClain.

        Trial counsel states that recalling Dr. McClain would have accomplished nothing.

However, if counsel had recalled Dr. McClain, she could have been confronted with the fact

that she reached her conclusion that this was a homicide case based on false information.

This would likely have caused her to question the homicide conclusion. Nevertheless, this

is a topic that could best be explored in an evidentiary hearing where Dr. McClain can be

called to testify.

6.      Failure to Call Justice of the Peace Taylor Mayfield As a Witness.

        Trial counsel states that a decision was made not to call Mayfield because Mark West

had already admitted much of the information given Mayfield was false. However, the

falsity of all of the information was not admitted by West and how this false information

affected Mayfield was important for the jury to hear.

Applicant's Objections to Second Memorandum Order Recommending Denial of Request for Post-Conviction Relief
Under Art. 11.07, Code of Criminal Procedure - Page 6
        Because the trial court's supplemental findings are based on this affidavit, Applicant

objects once again and asks that the court to either order an evidentiary hearing or grant the

requested relief.

                                                 Respectfully submitted,


                                                  /;&
                                                 LI
                                                 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 Objections to Second Memorandum Order Recommending Denial of Request
for Post-Conviction Relief Under Art. 11.07, Code of Criminal Procedure was mailed to the
Cass County District Attorney's Office, P. 0. Box 839, Linden, Texas 75563, on this the
  /J.fi_ day of August, 2015.




Applicant's Objections to Second Memorandum Order Recommending Denial of Request for Post-Conviction Relief
Under Art. 11.07, Code of Criminal Procedure - Page 7
