§2,778 /
TARRANT COUNTY TEXAS 11.07 WRIT NO. C~396-010272-1152016-A

COURT OF CRIMINAL APPEALS WRIT *
(unknown at this time ` `§§EDE@@
to Applicant) REY§R§XNALAW §

 

EX PAR'TE 2@1]5
IN THE TEXAS COURT OF CRIMIE§§ 05

APPEALS, AUSTIN, TX
Ab@% mower GP@rk

CO’>LO‘>¢O‘>CO’H»O‘>

DESMOND LEDET

OBJECTION #J;_OBJECTION TO THE HABEAS TRIAL COURT'S ADOPTION OF

INACCURATE, INCOMPLETE, AND INCORRECT FINDIMGS OF FACT AND LEGAL

CONCLUSIONS PROPOSED BY THE STATE REGARDING THE§DENIALFOF APPLI-

CANT'S FUNDAMENTAL RIGHT TO A PUBLIC TRIAL(GrdundS 1,3 &4) AND

HIS GROUND OF INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON DEFENSE

COUNSEL'S¢FAILURE TO OBJECT TO THE DENIAL OF THE PUBLIC’TRIAL RI-
GHT( Ground #2)

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
TI,Desmond Ledet, the Applicant pro-se, in said writ of§habeas
corpus. humbly and respectfully presents this honorable Court with
the following 0 B J E C T I 0 N as stated above in the heading. I
will refer to myself as the "Applicant". Today is Feb.B;j. 2015.
On=JanvZB& 2015 the Applicant received from Prison Mailroom staff
a letter notifying him that the trial court adopted the State's ix
inaccurate,'incomplete, and incorrect findings of fact and conclu-
sions of law. Please consider this objection timely as it is bea
ing placed in prison mailbox TSF days after Applicant became aware
of the habeas judges adoption, and notified that the ORDER from
that judge ordered the entire writ transcript forwarded to this
Court on Jan. 22, 2015. The Post Conviction writ Clerk in Tarrant

County ("Cindy") informed the Applicant's mother over the phone

that on the 23rd of January the entire writ/writ transcript, etc,

was forwarded to your Court. The Applicant has not yet received
notice from Your Court-#~-`giving the writ number(assigned by this
"p._l"_<_>f Ix. (A 42 PAGE EXHIBIT IS Now

ATTACHED)

Court of Criminal Appeals). Since the Applicant has been inform-

the writ was sent to this Court along with the trial court's er-

roneous adoption of the State's proposed findings and legal con-

clusions/

.AZ

this accurate OBJECTION is now presented to your Court:

THE TRIAL COURT'S FACT FINDINGS DO NOT ACCURATELY REFLECT
THE EVIDENCE DEVELOPED IN THE HABEAS CORPUS RECORD THAT
PROVES BY THE PREPONDERANCE OF THE EVIDENCE THE APPLICANT
IS ENTITLED TO RELIEF.. EX parte Re€d, 271 S.W. 3d 693/ 729
(Tex.Crim.App.ZOOB).

THE COURT'S FACT FINDINGS ARE.INCOHPLETE AND DO NOT FULLY
CONCEDE ALL OF THE EVIDENCE DEVELOPED IN THE HABEAS RECORD/
NOR IN THE REPORTER'S RECORD,THAT ESTABLISH BASED UPON THE
PREPONDERANCE OF THE EVIDENCE THE APPLICANT IS ENTITLED TO
HABEAS CORPUS RELIEF.

THE COURT'S FACT FINDINGS EXCLUDEMMULTIPLELESTABLISHED FA%I
CTS RELEVANT TO THIS HONORABLE COURT'S RESOLUTION OF GROU-
NDS #1-4 THAT ESTABLISH BY THE PREPONDERANCE OF THE EVI-
DENCE THE APPLICANT IS ENTITLED TO HABEAS CORPUS RELIEF.

THE APPLICANT HAS ALLEGED SEVERAL MATTERS IN THE APPLICA-

TION NOT ADMITTED BY THE STATE IN THEIR FACTVFINDINGS A- p
DOPTED BY THE TRIAL COURT AND SUBMITTED TO THIS COURT. BE-
CAUSE THOSE MATTERS ARE DEEMED DENIED(TéX.COde Crim. PrOC.
Art.ll.O7 §3(b)) THE APPLICANT FURTHER OBJECTS TO THOSE

DEEMED DENIALS¥AS BEING INCORRECT AND HERE AND NOW REASSE%`

RTS EACH AND EVERY FACTUAL”MATTER*ASSERTEDFIN~THE§APPLICA-

TION AS BEING CORRECT AND ESTABLISHING BY THE PREPONDERANCB

OF THE EVIDENCE THE APPLICANT IS ENTITLED TO RELIEF. THOSE
MATTERS INCLUDE/ BUT ARE NOT LIMITED TO:

l)

3)

The visiting sit in judge at trial(Phillip Vick) failed
to take every reasonable measure to accomodate public
attendance during the voir dire proceedings of Appli-
Cant's trial. Instead all at one time he summoned at-
least §§, possibly 15 more, prospective jurors all into
the courtroom's public seating area at one time, leaving
no room in the gallery for Applicant‘s parent's who had
to wait in the hall. See Application, p.6-7; Memorandum
p.3-15; [v.3 RR p.5 lines 24-p.6 line 7].

The 396th Judicial District Court of Tarrant County at
the time of Applicant's trial and presently seats app
proxiamatelv 45 people in the public seating area. See
Application, p.7; Memorandum p.6.

The Applicant was never informed of his right to a pub-j
lic trial by the Honorable judge presiding at trial, nor
by his defense attorney(Hon. Fortinberry), nor by the

p.II of IX

6)

7)

State, and did not knowingly, or intentionally relin-
quish or abandon, his right to a public trial, and to
due process, as guaranteed him by the sixth and four-
teenth amendment of the\U.S. Constitution. See Appli~
cation, p.6-9; Memorandum, p.18; Memorandum, Exhibit C:
Applicant's Unsworn Declaration-Statement.

The trial Court did not consider reasonable alternatives
to closing the proceedings. See Application, p.6-9[v.3
RR p.5 lines 24-p.6 line 7]; Memorandum. p.l4516

The jury box was left empty during voir dire and could
have been used to accomodate Applicant's parents,or to
place enough prospective juror's there to allow some
room in the public seating area for Applicant's two pa-
rents to be able to observe voir dire. See Application
p.7; Memorandum, p.lG-ll; W.3 RR p.l4 lines 12-14]

The trial judge presiding made no findings of some over-
riding interest likely to be prejudiced by allowing Mr.
and Mrs. Ledet(Applicantls parents) or any member of the
public into the voir dire proceedings. See Application
p.9; Memorandum p.16.

The Second DistrictNCourt of Appealsnhas.already reverss
ed atleast one conviction in which the same exact judge
(Hon. George Gallegher) who adopted the finding the Ap-
plicant is nov objecting to denied the defendant his
right to a public trial during voir dire in the exact
manner the Applicant was denied a public voir dire. in
the exact same courtroom. See Memorandum, p.26-27; gur-
ner v. State, 413 S.W. 3d 442, 447(Tex.App.Fort Worth
2012, no pet.). ` '

 

THEHTRIAL COURT'S LEGAL CONCLUSIONS ARE INCORRECT AND CON-
FLICT HEAVILY WITH WELL ESTABLISHED OPINIONS FROM THIS
COURT AND THE UNITED STATES SUPREME COURT. THE IMPROPER LE-
GAL CONCLUSIONS INCLUDE, BUT ARE NOT LIMITED TO:

l)

The adopted legal conclusions fail entirely to acknow-
ledge that the deprivation of a public trial is a ign-
damental error according to this Court's precedent.
Clark v. State, 365 S.W. 3d 333, 340(Tex.Crim.App.2012)
; & Neder v. United States; 527 U¢S. l, 7(1999). (Issue
raised in Applicant's Ground #4). See "State's Proposed
L¢.Findings...Conclusions of Law", p.l3, T4; p.l4, U7

a) Respectfully asserted, this Court should file and set
this case for submission, using Applicant's Ground #4
to settle once and for all any residual ambiguity in
the jurisprudence of this State concerning the funda-

p .II'I“'of Ix‘v

2)

-mental nature of the right to a public trial. See
Clark v. State, 365 S.W. 3d at 340("fundamental er-
ror occurs when certain constitutional rights are
violated, such as... the right to a public trial")
(citations omitted).

The adopted legal conclusions entirely fail to acknow-
ledge that Applicant's Public trial Grounds are not ;;u
simply Grounds that he was denied his right to a public
trial, but instead that WITHOUT EVER HAVING KNOWLEDGE
OF THAT RIGHT) OR EVER BEING INFORMED OF THAT RIGHT} HE
DID NOT EVER INTENTIONALLY ABANDON OR RELINQUISH THAT
RIGHT, Sneckloth v. Bustamonte, 412 U.S. 218, 241-42
(1973); Hodges v. Easton, 106 U.S. 408, 412(1982)

 

The State”s adopted legal conclusions erroneously cite
United States v. Hitt, 473 F.3d 146, 155(5th Cir. 2006)
for the proposition to this Court that the Applicant
somehow waived his right to a public trial because his
defense attorney,who never informed the Applicaht of j
his public trial right,failed to object. See State's
Proposed...Findings...Conclusions of Law", p.14, U6-7;
p.l9, U57, 59.

The Applicant 0 B J E.C;T S to the trial Court's adopt-
ed misapplication of "Hitt" ld. to this case. See Hitt/
473 F.3d at 155(Where a defendant, WITH KNOWLEDGE, of
the closure of the courtroom, fails to object, that de-
fendant waives his right to a public trial). "Hitt" is
non~applicable to this case, APPLICANT HAD NO KNOWLEDGE
OF HIS RIGHT TO A PUBLIC TRIAL AND EVEN DEFENSE COUNSEL`
HIMSELF IN HIS AFFIDAVIT STATED THAT HE DID NOT BELIEVE
APPLICANT'S PARENTS BEING PROVIDED NO ACCOMODATIONS IN
THE COURTROOM, BEING STUCK OUT IN THE HALL DENIED THE
APPLICANT HIS RIGHT TO A PUBLIC TRIAL. See FOrtinberry
Affidavit, p.2(response to Ground #4). _The Applicant
can not be penalized for not having knowledge his own
defense attorney was ignorant of. '

The Applicant 0 B J E C TwS to the trial court's adopt-
ion of the State's erroneous proposition that Applicant
failed to prove that the trial court closed the court~
room to the public. See State's Proposed...Findings...
Conclusions of Law", p.l3, U3; p. 15, Ul4

All of the evidence in the habeas record that has been
developed supports a legal conclusion that the trial
court filled every available seat in the public seating

l.area("gallery") with potential juror's leaving no acco-

modations for the public, See Fortinberry Affidavit, p.

l:

a)'"the'galleny~was'full."
l

See Fortinberry Affidavit,p.

p.Iv dr Ix

7)

b) The Reporter's Record proves the public seating area
was full with potential juror's. See Application, p.
6-7; Memorandum, p.3-15;[v.3 RR, voir dire].

c) "...the courtroom was full." Fortinberry Affidavit/ p
1. There was open space in the jury box where Appli-
cant's parents could have set(conceded by defense
counsel) but not in the public seating area("gallery"
) "the gallery was full". Fortinberry Affidavit, p.1

d) The 396th JudicialFDistrict Court only seats approxie
amately 45 people in the public seating area.

The trial court closed the proceeding because the Court
entirely failed to fulfill it's obligation to take every
reasonable measure to accomodate public attendance at
criminal trials." Steadman v. State, 360 S.W. 3d 499,
505(Tex.Crim.App.2012)(quoting Presley v. Georgia, 130
S.Ct. 721, 725(2010)

 

 

8) The Applicant O B J E C T S because the adopted legal

"When

conclusions,when compared with the indisputable evidence

entirely disregard the Court of Criminal Appeals and U-
nited State's Supreme Court precedent holding that:

determining whether a defendant has proved that his

trial was closed to the public, the focus is not on whether
the defendant can show that someone was actually excluded.
Rather a reviewing court must look to the totality of the
evidence and determine whether the trial court fulfilled

it's

obligation 'to take every reasonable measure to acco-

modate public attendance at criminal trials.'"

'Lili! v. state, 365 s.w. 3d 321, 331(Tex.crim.App.2012)(quoting
Presley, 130 S.Ct. at 725L

9) The trial Court's adopted legal conclusions entirely

lO)

fail to utilize this Court's precedent for the proper

standard of review when determining whether the Appli-
cant has proved that his trial was closed to the pub~
lic.

ATTACHED TO THIS OBJECTION IS A.TIME"FILEDYSTAMPED COPY
OF: "APPLICANT'S PROPOSED FINDINGS OF FACT AND CONCLU-
SIONS OF LAW REGARDING HIS GROUNDS ill #3, & 4...AND
ALSO HIS GROUND #2..." The Applicant incorporates that
attachment into this objection by reference.

a) Specifically, On Jan. 6, 2015, far in advance of the
State proposing any findings or conclusions(State
proposed on Jan.20,2015) the Applicant had already
properly filed with the Post Conviction writ Clerk
at Tarrant County District Clerk's office the accu-

P.v of IX

rate and correct proposed findings of fact and conclu-
sions of law pertaining to the present Grounds #l-#4.

ll) Specifically attached to this objection is a 42 page do-
cument that was filed on Jan. 6, 2015 that includes a co-
py of defense counsel's(Hon. Fortinberry)iAffidavit,

(.

12) In concluding here this objection the Applicant asserts
that he objects to the trial court's adopted findings
of fact and legal conclusions concerning Grounds #l-#4 as
being incorrect, inaccurate, and incomplete: AND FURTHER
RE-INVOKES THE ATTACHED ”APPLICANT'S" PROPOSED FINDINGS
AND LEGAL CONCLUSIONS AS BEING CORRECT.

a) Because the Applicant has already filed a copy of "Ap-
plicant's proposed findings and legal conclusions with
the Tarrant County District Clerk, a true copy of the
42 page document now attached, should have already
been sent to this honorable Court by the clerk along-
with the entire writ transcript, etc.

by For complete and accurate findings and legal conclu-
»sions for Ground #l--- See the attached "Applicant's"
proposed findings/legal conclusions at p.l-ll

c) For complete and accurate findings and legal conclu-
sions:'for Groundi#Z--~'See the attached "Applicant's"
proposed findings/legal<conclusions at p.21e37...(lnef
fective Assistance, failure to object to denial of pu-
blic trial)

d) For complete and accurate findings and legal conclu-
sions for Ground #3--- See the attached "Applicant's"
proposed findings/legal conclusions at p.12-l6.

e) For complete and accurate findings and legal conclu-
sions for Ground #4--- See the attached "Applicant's"
proposed findings/legal conclusions at p.l7-20.

F: LASTLY, THE TRIAL COURT'S ADOPTED FACT FINDINGS FOR APPLI-
CANT'S GROUND #2 ARE EXTREMELY INCOMPLETE/INCORRECT. See
State's Proposed...Findings...Conclusions of Law". p.5, Ul3,
Ul4, &TlS Compare with the correct and complete findings
attached in ”Applicant's' proposed findings/legal conclu- \
sions p.21-37.

l) by defense counsel's own admission, based on his own sub-
jective reasoning at the time of trial, he did not object
to Applicant's parents having no accomodations in the
public seating area because of INATTENTION AND NEGLECT]`

p_vl of IX

not because it was some type of well thought out plan

or strategy designed to benifit the Applicant by depri-
ving him of his right to a publis trial which is in it-
self, based on this Court's presedent, for the "benifit
" of the Applicant. Cameron v. State, 2014 Tex.Crim.App.
, LEXIS 1536, *13.

 

a) See Fortinberry Affidavit, p.l asserting: C"I did
tell them l did not know where they would sit during
voir dire"[personal knowledge before voir dire began
that the gallery was about to be filled with pros
spective jurors]"l was busy getting ready for jury se-
lection so 1 did not make an attempt to see to it
they had accommodations in the courtroom during voir
dire."[admittance of INATTENTION & NEGLECT, not stra~
tegyl.

b) Please compare the Court's incorrect finding cited`as.
bove with the correct and completely accurate finding,
deficient performance-for-failing to object in the.a-
ttached "Applicant‘s" proposed findings/legal conclu-
sions at p.25-36(emphasis added).

c) Attorney Fortinberry's failure to object, based on
this Court's precedent, and the developed habeas re-
Cord, was also based on a lack of knowledge of the ap-
plicable law. See accurate presentation of law and
facts establishing lack of knowledge of applicable
law attached in NApplicant‘s" proposed findings/le-
gal conclusions at p.29-36. `

d) Hon. Fortinberry's mistaken belief that either Appli-
cant's parents(or the Applicant who was never inform-
ed of the public trial right) had a duty to request
him to find an alternative place for Applicant's pa-
rent's to sit since the public seating area was full/
in order to somehow activate his duty to attempt to
secure Applicant's public trial right is flawed and
conflicts severly with Supreme Court precedent. See
Fortinberry Affidavit, p. 1(response to Ground #2);
See also attached "Applicant's" proposed findings/le-
gal conclusions at p.32, U27--p.33

2) THE TRIAL COURT'S ADOPTION OF THE STATE'S LEGAL CONCLU-
SIONS CONCERNING GROUND #2 ARE INCORRECT AND CONFLICT
HEAVILY THE PRECEDENT OF THIS COURT AND THAT OF THE SU-
PREME COURT.

a) The adopted findings/legal conclusions conflict with
this Court's well established precedent for analyzing
the prejudice prong of "Strickland" involving inefw
fective assistance/structural error claims. See State-
Vs Proposed...Findings...Conclusions of Law, p.5 U15,&

P.VII Of IX

b)

d)

p.l6, n23.

The Applicant cited the correct precedent from this
Court for finding prejudice when the ineffective as-
sistance of counsel Ground is based on structural er-
ror in the Memorandum of Law filed with the Applica-
tion. See Memorandum, p.l9, &27-28; See also the cor-
rect precedent for analyzing deficient performance
structural error Groundserproper standard of review
based on this Court's precedent in the attached "Ap-
plicant‘s" proposed findings/legal conclusions at p.
24-25.

The correct standard of review for deficient perfor-
mance/structural error claims was settled by this
Court 10 years ago in Johnson v. State, 169 S.W. 3d
223(Tex.Crim.App.2005).

 

The Applicant O B J E C TJS to the trial courtds~av
dopted legal conclusions failure to abide by the pre-
cedent of the honorable Court of Criminal Appeals
while attempting to analyze Applicant's Ground #2(In-
effective Assistance of Counsel/Structural Error.)

The Applicant 0 B J E C T S all of the legal conclu-
sions in the trial court's adoption of the State's

proposed legal conclusions. See State's Proposed;..
Findings...Conclusions of Law, p.l5, U14, p.l6, U23.

THE APPLICANT OBJECTS TO THE ADOPTED FINDINGS RECOMMENDA¢U
TION THAT RELIEF BE DENIED CONCERNING GROUNDS #l_#4 AND RE-
SPECTFULLY RE-ASSERTS THAT HE HAS CARRIED HIS BURDEN TO
SHOW THAT BASED URON THE PREPONDERANCE OF THE EVIDENCE HE
IS ENTITLED TO THE LEGITIMA REMEDIA OF IMMEDIATE HABEAS
CORPUS RELIEF, RESPECTIVELY.

PRAYER

The Applicant, Desmond Ledet, humbly and respectfully prays

that this honorable Court of Criminal Appeals will exercise this

Court's inherent power to disregard incomplete and incorrect fact

findings and legal conclusions that are contrary to the record,

and that do not follow this Court's precedent, or the precedent

of the United State's Supreme Court. as in this case. Further-

more the Applicant prays that this Court ”will enter alternative

p.vIII of IX

or contrary findings that the record supports.' Ex parte Flores
y 387 S.W. 3d 626, 635(Tex.Crim.App.ZOl2). This Court can find
such correct factual and legal findings,supported by the record,
and the law,already laid out in the attached ”Applicant's” proper

ed findings/legal conclusions..THANKYOU.

Respectfull

   
 

Desmond Ledet #01651095
Telford Unit

3899 State Hwy.98

New Boston, TX 75570

CERTIFICATE OF SERVICE
A true copy of the above has been mailed to the Tarrant Coun-
ty, TX Criminal District Attorney's Office, located at 401 West

Belknap, Fort Worth, Texas 76196-0201 on Feb. 2, 2015.

Desmond Ledet

p.IX \Of .IX

FlLED __
THOMAS- A wlLDER,.DlsT. cuan

 

 

TARRANTCOUNT%TEXAS
JAN 06 2015
7 No.c-396-010272~1152016-A nME

Ex PARTE § IN THE 396th JUDICBXL DEmny
§ _
§f DISTRICT coURT oF

_ §
DESMOND LEDET § TARRANT coUNTY, Tx
A P P L I c 9 N T ' s P R o P ors E n
F 1 N D 1 N c s 0 F g A c T A N D c 0 N c L U s 1 o N s

O F L A W R E G A R D I N G H I S G R 0 U N D S ill #3, &
#4(DEPRIVATION OF THE PUBLIC TRIAL RIGHT DURING VOIR DIRE) AND
A L S O H I S G R O U N D #2
(INEFFECTIVE ASSISTANCE BASED ON COUNSEL' S FAILURE TO OBJECT TO
THE DEPRIVATION OF APPLICANT'S PUBLIC TRIAL RIGHT DURING VOIR
DIRE),
PRIOR TO, AND WITHOUT THE BENIFIT OF A LIVE EVIDENTIARY
` HEARING, WHICH APPLICANT STILL SEEKS

A: Procedural Background

l. Desmond Ledet was indicted for the alleged offense of Aggra-
vated Sexual Assault of an adult woman.

2. Desmond Ledet pled not guilty in the 396th District Court of
Tarrant County, TX.

3. On June 22, 2010 a jury was selected and the Applicant(Dess
mond Ledet) began a 3 day trial.

4. At the time of trial Desmond Ledet was represented by attor-
ney Curtis L. Fortinberry(Court Appointed). Attorney Fortin-.
berry replaced Applicant's previous Court appointed Attorney
on Sept. 14, 2009.

51 The trial was presided over by a retired sit in judge, the
Honorable Phillip Vick.

6. The trial took place approxiamately 5 months after the United
State's Supreme Court handed.down it's opinion on Jan.l9,
2010 in Presley v. Georgia, 130 S.Ct. 721(2010) affirming
that under well settled lav, the Sixth Amendment right to.a
public trial extends to voir dire and that any closure during
voir dire must meet the standards provided in 1984 by the Su-
preme Court in Waller v. Georgia, 467 U.S. 39(1984)1

7. Ultimately Ledet was found not guilty of Aggravated Sex. As-
sault. Instead he was found guilty of the lesser submitted by
the State after the close of the evidence, Sexual Assault.
The jury charge allowed the jury to pick between the two..

8. The conviction was affirmed on direct appeal. PDR was refused
This original writ of habeas corpus followed.

p.l of 42

These proposed findings have been constructed prior to a live
evidentiary hearing, and without the benifit of such hearing
, which Applicant Still seeks. 1 '

The Applicaht has filed motions objecting to the lack of a li-
ve evidentiary hearing to develop the facts»

In the event a hearing is held in the future the Applicant has
the right reserved to alter, amend, or supplement these propoe
sed findings. ‘ '

Procedural History of Post-Conviction Writ of Habeas Corpus

On July 28, 2010,.Desmond Ledet filed an Application for a
Writ of Habeas Corpus Seeking Relief from Final Felony Con-
viction Under Code of Criminal Procedure, Article 11.07.

This Writ was assigned cause number: C-396-010272-1152016-A
and assigned to the 396th Judicial District Court of Tarrant
County, Texas.

This was the first post-conviction writ filed related to this

conviction.
Desmond Ledet alleged 34 grounds seeking habeas corpus relief.

These findings relate only to his grounds #l~#4/ which-rela#
te, in one way or another,to his allegations that he was dey.
prived of his right to a public trial without having knowledge
of, or ever intentionally waiving or relinquishing that right;

And that his trial attorney, Curtis L. Fortinberry/was inef-

fective for not objecting to the deprivation of that right(the
Court making no accomodations for his parent's during voir di-
re, instead filling the gallery with prospective.juror's, ef-

fectively closing the proceeding from the public, without fir-
st of all performing the mandatory test(which was well settled
law at the time of this trial(laid out in "WALLER" &"PRESLEY'_

)).

v.'l`hese findings are being proposed prior to and without the be-

nifit of any explaination in the habeas record as to what the
trial judge, The Honorable Phillip Vickls, subjective reas-
oning was, when hey failed to perform the "WALLER TEST" prior
to filling up the entire gallery with prospective jurors,
which left no accomodations for the public. Nevertheless the
Reporter's Record, and Defense counsel's Affidavit on these
Groundsestablish by the preponderance of the evidence that he
failed to perform the "WALLER TEST” and filled up the gallery
leaving no accomodations for the public.

p.2 of 42

lO.

ll.

12.

The Applicant did, in his "SUBSEQUENT REQUEST`FOR A LIVE EVI-
DENTIARY HEARING;...UNRESOLVED FACTS PERTAINING TO GROUNDS
#l~4..."(on p.2-3 of 5) seek a hearing to, inter alia',)ob-
tain factual information from judge Phillip Vick-as to "why
did he fail to abide by the dictates of 'WALLER' & 'PRESLEY'

As stated above the Applicant has filed motions objecting to

the lack of a live evidentiary hearing. lf one takes place in
the future Applicant has the right reserved to alter, amend/

or supplement these proposed findings;

Although legally a trial court's subjective reasons for not`
performing the "WALLER TEST", while making no accommodations
for the public are irrelevant to the question of whether or
not the violation actuallyoccurred,since "a trial judge must
at all times maintain control of the process of jury select-s
tion." Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
512(1984);

&"”trial courts are obligated to take every reasonable meas

sure to accommodate public attendance at criminal trials.'"
Steadman v. State, 360 S.W. 3d 499, 505(Tex.Crim.App. 2012)(

 

.quoting Presley, 130 S.Ct. at 725).

The Applicant alleged that the trial court's failure to per-
form the "WALLER TEST", while failing to take every reasonas
ble measure to accommodate the public at his trial denied him
his right to a Public Trial, and to Due Process as guaranteed
him by the Sixth and Fourteenth Amendment of the United Sta-
tes Constitution, during the entire voir dire proceeding.

Because the factual and legal findings for Ground #Z(Ineffec+
tive Assistance for failing to object to the Court's failure
to perform the "WALLER TEST" or make accommodations for the
public) are equally supported by the finding and conclusions
for Grounds #l.#3, & #4. The findings inj support of Ground
#2(IAC) will be proposed last. All of the findings for Grou-
nds #l, #3, & #4 are incorporated into the findings and con-
clusions for Ground #Z(IAC),

Findings and Conclusions Related to Ground #lCno waiver)

"APPLICANT WAS DENIED WITHOUT INTENTIONAL RELINQUISHMENT OR
ABANDONMENT, NOR KNOWLEDGE OFL OF HIS RIGHT TO A PUBLIC TRI-
AL, AND TO DUE PROCESS, AS'GUARANTEED HEM BY THE SIXTH AND
FOURTEENTH AMENDMENT QF THE UNITED STATES CONSTITUTION.(DUR~
.ING THE ENTIRE VOIR DIRE PROCEEDING)"

The Record contains no evidence that the Applicant was ev-
er notified of his right to a public trial or that he ever
intentionally relinquished or abandoned that right. There is
nothing in therecord to indicate at all that he had any know-

p.3 of 42

ledge'of his public trial right/ or what constituted closure.

This was the first time the Applicant had ever been.a defen-
dant in a trial.'

Nothing in the record indicates the Applicant, at the time

of trial, was familiar with the mandates of "PRESLEY" or "
WALLERV or that he had ever heard of the "WALLER TEST" so
that he would have known that the Court's filling up of the
gallery(public seating area) with prospective juror's/lleav-w
ing no room in the gallery for the public to sit, without fi-
rst of all performing the WALLER TEST was in violation of

his Sixth and Fourteenth Amend._right to a public trial.

The Supreme Court has noted, "the Constitution requires that
every effort be made to see to it that a defendant in a cri-
minal case has not unknowingly relinquished the basic pro~
tections that the Framers thought indispensible to a fair
trial.“ Sneckloth v. Bustamonte, 412 U.S. 218, 241-42(1973).

 

Consequently, ”every reasonable presumption should be indul-
ged against" waiver of a fundamental right. Hodges v. Easton,
106 U.S. 408, 412(1982)

 

The right to a public trial concerns the right to a fair tri-

`i. Waller, 467 U.S. at 46. ("The requirement of a public

trial is for the benifit of the accused; that the public may
see he is fairly dealt with and not unjustly condemned...")@

"The question of an effective waiver of a Federal constitu-
tional right in a proceeding is of course governed by fed-
eral standards." Boykin v. Alabama, 395 U.S. 238, 243(1969)

 

"Therefore for a waiver to be effective it must be clearly
established that there was an intentional relinquishment or
abandonment of a known right or priviledge." Stringer v. Sta-
te; 241 S.W. 52, 56(Tex.Crim.App.2007)(quoting Johnson v.
Zerbst, 304 U.S. 458, 458(1938)(overruled in part on other
grounds by Edwards v. Arizona, 451 U.S. 477(1981).

The Applicant submitted an "UNSWORN DECLARATION" labeled "Ex-
hibit C" attached to the 11.07's Memorandum's Appendix de-
claring, on the second page: "This was the first time I ever
been to a trial so I had no knowledge otherwise. The judge
never asked me did I know I had a_right to a public trial.
nor did he explain that right to me and ask me did I choose
to freely or voluntarily give up that right. If he had of ma-
de me aware of that right I would never have voluntarily ma-
de my parents sit out in the hall for well over an hour, If
anybody even my lawyer had of made me aware of that right. I
would have never given it up. But the truth is no one in
that courtroom, absolutely none, not the bailiff, nor theju-
de,nor my lawyer, nor the state prosecutor, nor anyone, said

p.4 of 42

lO.

ll.

12.

13.

l4v

15.

anything to me at all about my right to have my familly in
the courtroom. In fact, from the impression given to me

by the judge, my lawyer, and the bailiff, I thought it was
perfectly normal for the public to be kept out of voir dire
, although I did not like it. I was left totally ignorant
of my right to a public voir dire proceeding, point blank.
In fact the courts decision to exclude the public from voir
dire was made in my absence before I even entered the court-
room. I was not allowed to be a part of that decision per-
iod. I am perfectly willing to be hooked up to any machine
or lie detector test or whatever it'takes under the penalty
of perjury and forfeiting my whole writ, every ground, I
do not have any problems with it at all. I am telling the
truth. (p.2 of ”Exhibit C", Memorandum's Appendix).

Defense Attorney, Curtis Fortinberry,did not oppose the Ap-
plicant's above said statementh in his Affidavit to this
Court addressing Applicant's G&ounds #l-#4; the part regarc
ding Applicant's assertion that neither the Defense counsel/
nor the trial judge, nor the bailiff, nor the prosecutor' '
notified the Applicant of his public trial right.

\
Defense counsel did not oppose or object to the Applicant's
assertion that "l was left totally ignorant of my right to
a public voir dire proceeding, point blank.” '

Defense counsel, Curtis Fortinberry's sworn Affidavit to
this Court reveals(in his own words) that he : "was busy
getting ready for jupyselectionso I did not make an at-
tempt to see to it that they” Applicant's parents "had ac-
commodations in the courtroom during voir dire. "

Attorney Fortinberry's above statement makes it clear that
he was not attentive to Applicant's public trial right and
was busy doing other things besides notifying the Applicant

. Of the public trial right.(A COPY OF AFFIDAVIT IS ATTACHED)

Attorney Fortinberry, in his Affidavit made it clear that
he himself did not ”believe that” Applicant's."parents not
being in the courtroom",after conceding that "the gallery
was full" "during voir dire”,and that the trial judge "did
not perform a sua sponte Waller test",”constitutes a vio-
lation of his sixth and fourteenth amendment rights to a
public trial." (Fortinberry's Affidavit-on\Grounds #l~#4);

Which establishes as a fact that Attorney Fortinberry was
ignorant of the fact that the sixth and fourteenth Amend.
right to a public trial extends to voir dire and did not
notify the Applicant of that right he himself was ignorant
Of.(HIS AFFIDAVIT IS ATTACHED AT REAR OF THESE FIRDINGS)

p.5 of 42

l6.

17.

18.

19.

20.

21.

E:

l.

Due to the unique facts of this case, the 5th Cir. holding.,
that:"Where a defendant with knowledge of the closure of the
courtroom, fails to object, that defendant waives his right
to a public trial" is entirely non-applicable to this parti-
cular case. United States v. Hitt, 473 F.3d 146, 155(5th
Cir. 2006)

 

Not only was the Applicant without any of the required 1
knowledge for the reasoning in "Hitt" for finding waiver to
apply in this case, but defense counsel in his Affidavit to
this court clearly stated: "to my knowledge the courtroom
was not closed to the public.”(SEE REAR OF THESE FINDINGS)

"And the defendant cannot object apart from counsel. Due to
his lack of knowledge in legal procedure, a defendant may.
not even recognize his attorney's errors(after all, navigat-
ing the legal system is what the attorney is there for) and,
in any event, the defendant should not have to risk aleina-

uting the attorney, who is the defendant's only advocate in`

the legal'proteeding." Blue v. State, 45 S.W. 3d 129, 140(
Tex§Crim.App.ZOOO)(Keller, J., dissenting in which McCormick
,P.J., and Womack, J., joined)(citing Robinson, v. State, 16
S.W. 3d 808, 809#810(Tex.Crim.App.2000).

Mr. Ledet can not be faulted for not having legal knowledge
that his own defense attorney is ignorant of.

The closure in this case was done in a perfunctory manner,
no motion was filed(as in "Hitt" at 154) seeking closure that
could have been objected to. This closure was unanounced.

The record, nor defense counsel's_Affidavit, does not in any
manner recognizable by law, indicate that the Applicant knows
ingly, or intentionally, relinquished or abandoned`the sixth
and fourteenth AmendmentLLS. Const. right to a public trial
during voir dire. THIS COURT CONCLUDES THE APPLICANT DID NOT
WAIVE HIS RIGHT TO A PUBLIC TRIAL AS GUARANTEED HIM BY THE
SIXTH AND FOURTEENTH AMENDHENT OF THE UNITED STATES CONSTITU-
TION. See Lilly v-/State, 365 S.W. 3d 321, 327~28(Tex.Crim._
App.2012)(hearing the public trial claim after finding evisr
dence in the record to rebut any presumption the appellant
intended to waive his claim); see also Walton v. Briley, 361
F.3d 431, 434(7th Cir. 2004)(conc1uding that failure to ob-
ject at trial did not result in a waiver of defendant's claim
that his right to a public trial was violated).

Findings and conclusions related to Ground #l(the Court fai-
led to fulfill it's obligation to take every reasonable mea-
sure to accommodate public attendance at Desmond Ledet's(Ap-
plicant) trial during the entire voir dire proceedingJ

The totality of the evidence affirms.voir dire was closed.

p.6 of 42 \

"the first step for a reviewing court when analyzing whether
a defendant's right to a public trial was violated is to de-
termine if the trial was in fact closed to the public." Lil-

111_365 $-w-_ 3d at 329-1

"whether a particular defendant's trial was closed to the
public should be ascertained on a case-by-case basis after
considering the totality of the evidence;" Id. at 330

The mere fact that a trial judge never ruled that the voir
dire proceedings were closed to the public does not defeat
a claim that the proceedings were closed when the totality
of the evidence reveals the Court filled the gallery with
prospective jurors, and made no accomodations for the public
. Cameron v. State, 2014 Tex.Crim1App;LEXIS 1536, *2-*15.

 

In this case the Applicant(Desmond Ledet) attached a copy of
thelReporter's Record of voir dire to his writ Applicationo
in the Memorandum's Appendix,which reveals the Court summon-
ed the large panel of prospective juror's to the courtroom.»

.all at one time,filling up every available seation every row

as soon as the 3 day trial began.

The trial Court entirely failed to perform the WALLER TEST

n prior to filling the gallery with prospective jurors@

a: the Court did not advance an overriding interest that
was likely to be prejudiced by accommodating the public.

b: the Court did not make findings of fact sufficient to
support it's failure to make accommodations for the public.

c: the Court did not consider every reasonable alternati-
ve to closing the proceeding,by$entirely,failing to fulfill
it's dbligationg"to take every reasonable measure to acco-
mmodate public attendance at criminal trials*, since in
this case Applicant's parents could have set in the empty
jury box during voir dire, instead of having to wait in the
hall because the gallery was full. Steadman v. State, 360

4`S.*W. 3d 499, 505(Tex.Crim.App.2012)(quoting Presley, 130

s.cr. at 725).

d.in this case this Court does not need to determine whe-
ther or not the closure was Fno broader than necessary to
protect" an "overriding interest that is likely to be pre-
judiced" since the fact is the trial judge did not, prior to»
filling the gallery with prospective jurors¢advance an over-
riding interest likely to be prejudiced. Steadman/360_S;W.
3d at 504(quoting Waller, 467 U.S. at 48).

.Defense counsel affirmed in his Affidavit that during voir

dire: "...the Courtroom was full" and "the gallery was full.

p.7 cf 42

8. Defense counsel confirms in his Affidavit that the trial "did
not perform a sua sponte Waller Test" prior to filling the
courtrooms gallery with prospective jurors.

9. "The burden of considering reasonable alternatives to closure
rest squarely upon the trial court itself,..." Steadman,_360
S.w.`3d at 505(citing Presley, 130 S.ct. at724-25). 'In this
particular case the trial court did not carry that burden.

10i The trial court did not, in order to accommodate the pub-
lic, reserve "one or more rows for the public" ld.

11. The trial court did not divide "the jury venire panel to re-
duce courtroom congestion." Id

12. The Reporter“sRecord establishes as a fact that during voir
dire, that although the gallery was full,the jury box wasv
empty.(Fortinberry's Affidavit confirms space in courtroomY.

13. The space in.the jury box could have not only been used to
accommodate Applicant's parents , Ralph and Luvenia Ledet;_
who waited in the hall because no accommodations were ma-
de for them in the gallery,. but the trial court could have
also opted to place atleast 12 of the huge panel of pro-
spective jurors in the jury box which would have made space
for Applicant's parents and the public in the gallery{

14. Applicant"s parents were not obligated to demand that accom-
smodations be made for them in the gallery,in order for the
trial court,to consider reasonable alternatives to filling
the gallery with prospective jurors.

15. "There is no burden on the defendant to proffer alternativ-
es." Id. at 505. The Applicant had no burden to insist that
the Court fulfill it's duty to perform the Waller Test and
consider reasonable alternatives in order to activate the Su-

zpreme Court mandated duty upon the Court to perform the Wal-
ler Test prior to closing the proceeding to the public.

16. In Cameron v State, 2014 Tex.Crim.App. LEXIS 1536{ the Texas`
Court of Criminal Appeals found that the voir dire proceed-
ing was constitutionally closed to the public even after the
trial judge repeatedly stated on record: "It's an open trial
...I've never ruled that the public is excluded...if you
want we can open up those doors in the\back and have them
stand where they can observe and hear every single thing
that's going on...I'm telling you that you can have people
in this courtroom;;il'm not making a ruling that anybody is
excluded...I haven't told you that you cannot have people in
the courtroom...The court did not close the proceedings by
any means,..we will do our best to accommodate them in areas

;around the gallery.,." Id . *l- *8

\.

p.e of 42 ' ,_ ' \

17.

18.

19.

20:.

21-

22.

23.

24.

In WCameron? regardless of the trial court's multiple clai-'
ms on record that the voir dire proceedings were open to the
public, the gallery still remained full of prospective jur-

rors, The Court of Criminal Appeals quickly recognized that
7 "the record sufficiently shows that the voir dire proceed-

ings were closed” ldf at *12.

Both of Applicantfs parents also submitted Affidavits attach-
ed to the Memorandum of law attached to his writ Application
explaining that they had to wait in the hall due to the lar-
ge panel of prospective jurors filling up the gallery.

The Applicant also explained in his Unsworn Declaration at-
tached also to the Memorandum that his parents had to wait

in the hall during voir dire due to the large panel of pro-
spective jurors. ` .

Defense counsel confirmed in his Affidavit that the Applica-
nt's parents were present prior to the outset of voir dire
and because of the situation,he claims, that he told them
that he did not know where they would sit during voir dire.
Which is the same thing the trial court repeatedly said also
in "Cameron" Id.‘ '

Based on the Record and the totality of the evidence this
court finds all allegations that the courtroom was full with
.prospective jurors during voir dire to be credible. `
"Cameron"(ld.) is a published opinion handed down from the
Court of Criminal Appeals on Oct. 8, 2014, prior to this
court handing down any facts or conclusions,while this writ
of habeas corpus was still pending a recommendation from
this court. The CCA's decision in "Cameron" is binding on
this court's analysis in this case.

THIS COURT CONCLUDES THAT BASED ON THE TOTALITY OF THE EVI-
DENCE,IN THIS PARTICULAR CASE, THAT THE VOIR DIRE PROCEED-~
INGS WERE, IN FACT, CLOSED TO THE PUBLIC.

In furtherance of this conclusion, and although there is suf-
ficient evidence to show that Applicant's parents. were pre-
sent,and-desired accommodations in the gallery,this Court ta-
kes judicial notice of the opinion in Lilly, at 331(quoting
(Presley, at 725) that:"When determining whether a defend-
ant has proved that his trial was closed to the public, the
focus is not on whether the defendant can actually show that
someone was actually excluded.' Rather a reviewing court mue
st look to the totality of the evidence and determine whe-
ther the court fulfilled it's obligation 'to take every rea-
sonable measure to accommodate public attendance at criminal
trials.'" Defense counsel does not contest the facts in Ap-

'plicant's parent”s Affidavitsjsaying that once voir dire'

was over he informed them of when to enter courtroom.

p.9 Of 42

25. THIS COURT CONCLUDES THAT THE TRIAL COURT IN THIS CASE FAILED
TO PERFORM IT'S OBLIGATION TO TAKE'EVERY REASONABLE MEASURE
TO ACCOMMODATE PUBLIC ATTENDANCE AT CRIMINAL TRIALS.'”

26. AS A MATTER OF LAW THE VOIR DIRE PROCEEDINGS WERE CLOSED TO
THE PUBLIC. ' v

27. In "Cameron"at *12 the Court of Criminal Appeals stated: "Ha-
ving held that the voir dire proceeding were,in fact, closed
to the public, we move on to the Waller test to determine if

lthis.closure was constitutionally justified under the Sixth
Amendment;" »

F: Findings and Conclusions related to Ground #1(the closure was
not constitutionally justified under the Sixth Amendment)

ll "Under Waller, a closure will be justified only if the trial
court makes findings that closure is necessary to protect an
overriding interest and the closure is narrowly tailored to
protect that interest." Cameron",at *lZ(citing Waller, 467
U.S..at 45). THIS COURT CONCLUDES THAT BECAUSE THE COURT'DIDY-
NT MAKE FINDINGS THAT THE CLOSURE WAS NECESSARY TO PROTECT AN
OVERRIDING INTEREST, THE CLOSURE WAS NOT CONSTITUTIONALLY
JUSTIFIED. -

2. "A court also must consider all reasonable alternatives."
"Cameron", at *l3(citations omitted).THE JURY BOX WAS OPEN,
THE RECORD DOES NOT SUPPORT A FINDING OR CONCLUSION THAT THE
COURT CONSIDERED ALL REASONABLE ALTERNATIVES‘AND SENSIBLY
REJECTED THEM. BECAUSE THE TRIAL COURT DID NOT,THIS COURT
AGAIN CONCLUDES THAT THE CLOSURE WAS NOT CONSTITUTIONALLY
JUSTIFIED.

A4. FINALLY, THE TRIAL COURT'S ACTION IN SUMMONING THE HUGE PA-
NEL OF PROSPECTIVE JUROR'S INTO THE COURTROOH ALL AT ONCE, AT
THE VERY START OF VOIR DIRE,`WHICH.FILLED THE GALLER¥;LEAVING
!NO %CCOHHODATIONS IN GALLERY FOR THE PUBLIC, FELL BENEATH THE
"TRIAL COURTWS "OBLIGATION7'TO TAKH EVERY REASONABLE HEASURE
TO ACCOMHODATE PUBLIC ATTENDANCE AT CRIHINAL TRIALS.'” Lilly/
at 331(quoting Presley, at 725)-

 

5. THE CLOSURE VIOLATED APPLICANT'S SIXTH AND FOURTEENTH AHEND-
MENT RIGHT TO A PUBLIC TRIAL.

6. IN 1948 , iann re oliver, THE SUPREME HELD THAT THE PUBLIC
TRIAL TRIAL cLAUSE oF THE stTH AMENDMENT APPLIED To sTATE
cRIMINAL PROCEEDINGS THROUGH THE FoURTEENTH AHENDMENT. 333
U.S. 257(1948). The closure violated DUE PROCESS.

p.lO of 42

G: Conclusion of Law and Recommendation Concerning Ground l:

1: This Court, after weighing the evidence from the Reporter's
Record, the Application filed, the supporting documentation
in the Application, The Affidavits from Defense counsel, and
both of Applicant’s parents, and Applicant's own "Unsworn De»
,claration"(statement), as well.as the foregoing factual and'
legal conclusions, etc., concludes by the preponderance of
the evidence and applicable law that:

a) The Applicant did not knowingly or intentionally relin-
quish or abandon his right to a public trial under the si-
xth and fourteenth Amendments of the U.S. Constitution.

b) The voir dire proceedings were in fact closed to the pub-
lic.

c) The closure was not Constitutionally justified, and it
violated the Applicant's sixth and fourteenth Amendment
right to a public trial. ‘

d) The error is structural- A'Vdefendant should not be requi-
red to prove specific prejudice in order to obtain relief
for a violation'" of this right. Steadman, 360 S.W. 3d at
510(quoting Waller, 467 U.S. at 49-50)(“it necessitates a
new triall" Id. at 511) ~

2. This Court recommends GRANTING the relief sought by the‘Ap-\
plicant, Desmond Ledet.l v

Signed on this the Day of *20

 

I(PLEASE SIGN)

 

v Judge Presiding

p.ll of 42

(Note: Again, findings and conclusions regarding Ground #2, in-
effective assistance of counsel, will be presented last herein)

H. Findings and Conclusions Related to Ground #3(sua sponte):

"IN LIGHT OF THE COURT'S FAILURE TO SUA SPONTE PERFORM THE"
WALLER TEST' IN COMPLIANCE WITH 'PRESLEY‘ & 'WALLER',‘AND THE
iFUNDAMENTAL NATURE OF THE RIGHT TO A PUBLIC TRIALy APPLICA%
NT’S DEPRIVATION OF THAT RIGHT(EXPLAINED_IN GROUND #l) CON-
STITUTES PLAIN ERROR AS DEFINED BY THE S.CT lN U.S. v. OLANO
, 507 U.S. 725(1993)"

1. All of the fact findings and legal conclusions for Ground #l
are incorporated into the findings of facts and conclusions
for this_Ground #3.

2. The trial judge failed to perform his duty to sua sponte per-
form the "Waller Test". -
\
3. "But Presley also puts the onus squarely on the trial court
` to identify for the record those specific concrete facts"
that will justify closure. Steadman, 360 S.W. 3d at5506.

4. "The burden of considering reasonable alternatives to clo-
sure rest squarely upon the trial court itself, regardless
of what party seeks closure, and there is no burden on the
defendant to proffer alternatives." Steadman, 360(Citing
Presley 130 S.Ct. at 724-25). ` - .

5{ ln Steadman, reversing for a new trial, the Court Of Crimin-
al appeals held that the trial court did not "satisfy the
'obligation' that both Presley and Waller unequivocally im-
pose upon trial courts 'to consider all reasonable alterna-
tives to closure'" Id. at 510(Citing Waller, at 48),

61 THIS COURT CONCLUDES THAT THE TRIAL COURT HAD AN:,"UNEQUIVOCALv
DUTY TO SUA SPOUTE PERFORM THE WALLER TEST. THE APPLICANT IS
NOT TO BLAME FOR THE COURT'S FAILURE IN THAT REGARD. NO ACT-
ION OR INACTION, OBJECTION OR FAILURE TO OBJECT, EXCUSES THE
TRIAL COURT OF IT'S OBLIGATIONS UNDER PRESLEY AND WALLER TO
PERFORH THE WALLER TEST BEFORE IT COULD CONSTITUTIONALLY CLOF
SE THE VOIR DIRE PROCEEDINGS. THE LAW IS WELL SETTLED,

1an DuTY`~fIs- A' c`<`)NT`INUIuc.v DUTY REGARDLESS _.oF CBJEchoN oR NoT.

l_ Findings and conclusions related to ground #3(the public
.trial right the Applicant was deprived of is fundamental)

1. The Court of Criminal Appeals has referred to the public

trial right as "fundamental” See, e.g., Clark v. State,
365 S.W. 3d 333, 340(Tex.Crim.App.2012).

p.12 of 42`

1999,the United States Supreme Court held that the right to a
public trial is so essential to the integrity of the criminal
justice process that it's violation falls into la limited
class of fundamental constitutional errors that defy analysis
by harmless error standards." Neder v. United States, 527
U.S. l, 7(1999)(internal quotations omitted).

 

THIS COURT CONCLUDES THAT THE SIXTH AND FOURTEENTH AHENDMENT
RIGHT TO A PUBLIC TRIAL THE APPLICANT WAS DEPRIVED OF WHEN
THE TRIAL COURT FAILED TO SUA SPONTE PERFORM THE WALLER TEST
BEFORE FILLING THE GALLERY WITH PROSPECTIVE JURORS LEAVING NO
ACCOHHODATIONS FOR THE PUBLIC WAS AND IS A FUNDAHENTAL RIGHT.

Findings and Conclusions related to Ground #3(in light of
the above facts and conclusions the deprivation of Appli-
cant's right to a public trial(explained in Ground #l) consti-

'tutes plain error as defined by the S.Ct. in U.S. v. O-

lano, 507 U.s. 725(1993»..

A reviewing court may grant relief for "plain error" even if-
the error was not raised and preserved at trial or sentencing

Tex.R.EvidL 103(d) is modeled after the analogous federal
provision and substitutes "fundamental" error for which a ti-
mely objection is unnecessary for "plain error" in the federal
rule. .

In Blue v. State, the Court of Criminal Appeals recognized a
"plain error"(judges comment damaging the presumption of in-
nocence)as:"fundamental error" citing mulitiple "plain error"
cases from federal courts while reversing the judgement. 41
S.W. 3d 129/ 131-133(Tex.Crim.App. 2000).

THIS COURT coNLUDEs THAT THE DEPRIVATIon oF APPLIcANT's RIGHT
TO A PUBLIC TRIAL(EXPLAINED IN GROUND #1) coNsTITUTEs "PLAIN
ERROR" AND Is REvIEwABLE WITooUT AN oBJEcTIoN.

Plain error is error that is "clear" or "obvious" and affects
the defendant's Nsubstantial rights"v Olano, 507 U.S. at 732-
735.

This court coNcLUDEs that it was-Iclear:and»obvious" to the4
trial judge that he had filled the gallery with prospective
juror's, failing to accommodate the public, and without first

' of all sua sponte performing the "Waller Test"

Even though defense counsel failed to object the trial judge
had a personal obligation, a continuing duty, regardless of
whether a party objected or not, to sua sponte perform the
PWaller Test? prior to filling the gallery with prospective

=p.ia dr 42

10.

ll.

12.

13.

14.

15.`

16.

jurors, making no accommodations for the public, in violation
of the Sixth and Fouuteenth Amendment of the United States
Constitution. k ‘

»This Court concludes that the public trial right is so fun-

damental that it was clear & obvious` to the "trial judge"
, who in order "To preserve fairness ...must at all times
maintain control of the process of jury selection", that his
actions deprived the Applicant of his right to a public trial
, and were not in compliance with Presley and Waller. Press-
Enterprise Co. v. Superior Court, 464 U.S. 501, 512(1984).

 

This Court concludes that the error affected Applicants "sub-
stantial rigts.” Olano, 507 U.S. at 734-35-

This Court concludes that the trial judge, through his act-
ions, closed the courtroom during voir dire in violation of
Waller and Presley/ the error is structural, not harmless--
prejudice is automatically presumed--and a violation of sub-
stantial rights has occurred.

In Johnson v. United States, 520 U.S. 461, 468-69(1997),the
Supreme Court noted the existence of a limited class of cases
, such as Waller, where the errors involved do affect sub-
stantial rights.

 

Relief for Plain Error may be granted only if the error
seriously affects the fairness, integrity,or public reputa-
tion of judicial proceedings." Olano, 507 U.S. at 736

This Court concludes that the deprivation of Applicant's pi-
ght to a public trial in this particular case impacts the
fairness, integrity, and public reputation of Applicant's
trial.

The public trial right Applicant was deprived of, without ev-
er having waived it,’is important because "the spectators
learn about their government and acquire confidence in their
judicial remediesl"_ln re Oliver, 333 U.S. at 270 n.24(1948)(
citations omitted).

ln In re Oliver and Waller,the Supreme Court incorporated the
public trial right under the Fourteenth Amendment, using a
test based on fairness principles.

 

The constitutional right to a public trial, Applicant was de-
prived of during voir dire, ensures fairness, maintains pub-
lic confidence in the criminal justice system, provides an
outlet for community reaction to crime, provides incentives
for judges and prosecutors to handle their dutiesresponsibly,
encourages witnesses to come forward, and discourages per-
jury. Waller, 467 U.S. at 46.

p.14 of 42_

17.

18.

19.

20.

21.

22.,

23§

Conclusions of Law and Recommendation Concerning Ground #3:

Press-Enterprise Co. v. Superior Court, 464 U.S. at 508-09
(Public Trial helps ensure fairness). '

 

Public trials place ”effective restraint on possible abuse
of judicial power." In re Oliver, at 270 '

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-05
(1982)(public trials promote informed discussion of govern-
mental affairs)

"Essentially ,the public trial guarantee embodies a view of
human nature, true as a general rule, that judges, lawyers
witnesses, and jurors will perform their respective funct-
ions more responsibly in an open court than in secret pro-
ceedings. Afair trial is the objective¢ and a 'public trial'
is the institutional safeguard for attaining it." Estes v.
Texas, 381 U.S. 532, 588(1965)(Har1an, J., concurring)(ci-
tation omitted). '

" The corrective influence of public attendance at trials
for crime was considered important to the liberty of the
people, and it is only by steadily supporting the safeguard
that it is kept from being undermined and finally destroyedl
Davis v. united States, 247 F.3d 394,»395(8th cir} 1917).

 

"The purpose of the public trial was to guarantee that the
accused would be fairly dealt with and not unjustly con-
demned. History has proven that secret tribunals were ef-
fective-instruments of oppression." Estes v. Texas, 381 U.S.
532, 538~39(1965). `

Based on all the foregoing facts,and legal findings and ci-
tations, and because "our system of law has always endeavors
ed to prevent even the probability of unfairness"and "¢-.
Fjustice must satisfy thyappearance of justice", THIS COURT
AGAIN CONCLUDES THAT THE CLEAR AND OBVIOUS ERROR NOT ONLY
AFFECTED APPLICANT'S SUBSTAHTIAL RIGHTS} BUT ALSO DEFINAT-
LY AFFECTED THE FAIRNESS, INTEGRITY, OR PUBLIC REPUTATION
OF APPLICANT'S TRIAL,- ln re Murchison, 349 U.S. 1331 136(

1955)

This Court, after weighing the evidence from the Reporter's
Record, the Application filed, the supporting documentation
in the Applicationj etc., as well as the foregoing factual
and legal conclusions for this ground and ground one, etc.,
concludes by the preponderance of the evidence and applica-.
ble law that: '

p.15 of 42

a) The trial judge had a sua sponte duty under Waller and
Presley to perform the Waller test before he could con-
stitutionally justify filling the gallery with prospecti-
ve jurors, leaving no accommodations for the public.

 

b) the trial judge failed to perform the above said sua
sponte duty/obligation.

c) the public trial right Applicant(Desmond Ledet) was de-
prived of is a fundamental right under both State and
Federal precedent.

.d) The closure that violated both Waller and Presley in this
trial during the voir dire proceeding is per se structu-
ral error, error the Applicant did not waive, that meets
the plain error test and requires reversal because:f

ll it is clear and obvious

2. it clearly implicates substantial rights, being
structural error.

3. it is the kind of defect that seriously impacts the
"integrity or public reputation of judicial proceed-
ings," thus meeting the requirements of Olano, 507 U.S
. at 736(quotations omitted).r

4. it is the type of error that affects adversely the stv
fairness of the trial.

5. lt is PLAIN ERROR.

6. It meets all four prongs of Olano to be deemed plain
error, and; '

7. absent an objection, as in this case, this Court con-
cludes this plain error can, and should be corrected.

_2. This Court recommends GRANTING the relief sought by
the Applicant, Desmond Ledet.

Signed on this the Day of _ 20

(PLEASE SIGN)

 

Judge Presiding

p.16 of 42

L.

Findings and Conclusions Related to Ground #4(fundamental er-
ror)

"THE DEPRIVATION OF APPLICANT'S STXTH AND FOURTEENTH AMEND.
RIGHT TO A PUBLIC TRIAL(EXPLAINED IN GROUND ONE OF THIS WRIT)
CONSTITUTES FUNDAMENTAL ERROR OF A RIGHT PERSONAL TO THE BE-
NIFIT OF THE APPLICANT, REVIEWABLE ABSENT AN OBJECTION FROM

_DEFENSE COUNSEL."

All of the fact findings'and legal conclusions for_Ground #l,
and #3. are incorporated into the findings of fact and con-
clusions for this ground #4.

The Applicant contends in his Ground #4 that:

al The right to a public trial he was denied during voir di-
re is a fundamental right;

b) The sixth.& fourteenth Amendment right to a public trial(
unlike the publics lst Amend..right to be present) is a`
right personal to the benifit of the accused:

c) And for those reasons combined with the fact that he did
not waive that right(as explained in Ground #1) the error
is reviewable regardless of the fact his trial attorney,
entirely failed to object to the error at trial.

The writ of Habeas Corpus lies to correct "defects-or denials
of fundamental constitutional rights." Ex parte Tovar, 901
_S.W. 2d 484, 485(Tex.Crim.App.l995). -

The Supreme Court holds that the right to a public trial is
so essential to the integrity of the criminal justice pro-
cess that it's violation falls into "a limited class of fun-
damental constitutional errors that defy analysis by harm-
less error standards." Neder v. United States, 527 U.S. l, 7
(l999)(internal quotations omitted).

The Texas Court of Criminal Appeals has also referred to the
public-trial right as "fundamental? Clark v. State, 365 S.W.
3d 333, 340(Tex.Crim.App.2012)-

"Fundamental" is defined as -of, affectingl or serving as a
base or foundation; essential;primary(the fundamental rules)
,etc.(Oxford Pocket American Dictionary of Current English)

"Beginning in the 16th Century, jurors were selected in pu-
1blic" Press-Enterprise Co. v. Superior Court, 446 U.S. 501
, 507 (1984). "Public jury selection...was the common pract-
ice in America when the Constitution was adopted." Id. at 5081

p.17 of 42

\

\

THIS COURT CONCLUDES THAT THE RIGHT TO A PUBLIC TRIAL UNDER
THE SIXTH AND FOURTEENTH AMENDHENT IS A FUNDAIBNTAL RIGHT IN
WHICH THE APPLICANT WAS DEPRIVED OF DURING THE VOIR DIRE
PROCEEDING OF HIS TRIAL.

Findings and Conclusions Related to Ground #4(the sixth Amend-
ment right to a public trial, made applicable to the state of
Texas through the fourteenth Amendment of the U.S. Constitu-
tion, is a right personal to the benifit of the accused).

This Court concludes that the LAW has long held that a public
proceeding "is for the benifit of the accused; that the pub-
lic may see he is fairly dealt with and not unjustly con-
demned and that the presence of interested spectators may

keep his triers keenly alive to a sense of their responsibili-
ty and to the importance of their functions...." In re Oliver/
333 U.S. at 270 n.25(citations omitted)

"In addition to ensuring that the judge and prosecutor carry
out their duties responsibly, a public trial encourages wit-
nesses to come forward and discourages perjury." Waller,
467 U.S. at 46.

This Court concludes that the public trial right benifits the
accused personally because it produces a more reliable result
by discouraging perjury and engendering fairness.

This Court concludes that the accused-benifits personally from
a public trial because it is "true as a general rule that ju-
dges, lawyers, witnesses, and jurors will perform their re-y
spective functions more responsibly in an open court than in
secret\proceedings. A fair trial is the objective, and 'pub-
1ic trial' is an institutional safeguard for attaining it."
Estes v. Texasi 381 U.S. 532, 588(1965)(Harlan, J., concurring

l(citation omitted).'

"Our cases have uniformly recognized the public trial guaran-
tee.as one created for the benifit of the defendant." Ganett
Co. v. DePasquale, 443 U.S. 386, 380(1979). f

 

This Court concludes that the public trial right benifits the
accused personally under the sixth and fourteenth'Amendment
because it "serves to guarantee the fairness of trials and to
bring to bear the benificial effects of public scrutiny`up-
on the administration of justice" Cox Broad.Corp. v. Cohn/
420 U.S. 469, 492(1975). `

"the requirement of a public trial is for the benifit of the
accused." Waller, 467 U.S. at 46(quotations omitted)_

p.18 of 42

§

8. This Court concludes that in 2010, the United Stateds Supreme
Court, in Presley, 130 S.Ct. at 7250 reiterated again that "
Our cases have uniformly recognized the public trial guarantee
as one created for the benifit of the Defendant."(quoting gan-
nett Co. v. DePasquale, 443 U.S. 368, 380(1979).

 

9. THIS COURT CONCLUDES THE SIXTH AND FOURTEENTH AMENDHENT RIGHT`
TO "PUBLIC TRIAL" IS A RIGHT PERSONAL TC THE BENIFIT OF THE
DEFENDANT, UNLIKE THE lst AMENDHENT RIGHT FOR THE PUBLIC.

lO. THIS COURT FURTHER CONCLUDES THAT SINCE THE RIGHT TO A PUBLIC
TRIAL RAISED IN THIS WRIT WAS CREATED FOR THE BENIFIT OF THE
APPLICANT, DESMOND LEDET, THEN ONLY THE APPLICANT HAD THE RI-
GHT TO WAIVE IT, AND HE DID NOT WAIWE THAT RIGHT.

N. Findings and Conclusions Related to Ground #4(the reviewing
Court can review this fundamental error of a Constitutional
right created for the benifit of the Applicant that he never
_waived even though his trial attorney failed to object to the
error)

1. This Court recognizes the doctrine of fundamental error.

2. This Court concludes under the doctrine of fundamental error
the Applicant can complain of the trial court's (l):filling
the gallery with prospective jurors, (2) leaving no accommoda-
tions in the public seating area for the public to be present,
(3) resulting in his parent's having to wait in the hall the
entire voir dire proceeding, (3) without ever,first of all,
prior to doing so, (4) fullfilling it's mandatory obligation
under PRESLEY & wALLER to perform the mandated wALtER"TEST, or
(5) ever fulfilling it's obligation under PRESLEY-to take ev-
ery measure to accommodate public attendance at criminal tri-

als.
3. "The traditional term in Texas' criminal law that corresponds
toi"plain error" is "fundamental error". Jimenez v. State,

2000 Tex.WCrim. App. LEXIS 81, *lZ-lB(Tex.Crim.App. 2000).

4. This Court concludes the fundamental error(above), is struct-
ural error affecting Applicant's substantial rights.

‘5. The Court of Criminal Appeals has made it clear that: "we are

authorized to take notice of fundamental errors affecting sub-
stantial rights although they were not brought to the attent-

ion of the court." Blue,45 s.w. 3d ar 131.

6. This Court concludes "that the fundamental conception of a
fair trial includes...the right to have the proceedings open
to the public", and review of this fundamental error is just-
ified., Estes, 381 U.S. at 560(Mr. Chief Justice Warren con-

f
\

p.l9 of 42

curring).

O. Conclusions of Law and Recommendation Concerning Ground #4

1. This Court, after weighing the evidence from the Reporter's
Record, the Application filed, the supporting documentation
in the Application, etc.,as well as the forgoing factual and
legal conclusions for this ground,as well as ground one and

three, etc. concludes by the preponderance of the evidence and
the applicable law that:

a) The violation of Applicant's Sixth and Fourteenth Amend-
ment right to a public trial as laid out in ground #l is
fundamental error of Cohstitutional magnitude.

b) The Sixth and Fourteenth Amendment right to a public trial
is, and has been repeatedly deemed to be,by theUnited Sta-
te's Supreme Court,createdfor the benifit of the accused.

c) The Applicant never, personally waived that right, nor was
he ever informed of that right by defense counsel,or the
trial Court.(unopposed by defense counsel)or the Record)

d) While the right to a public trial is fundamental in and of
itself, it is also above valuation.of“it“s'importance`to;
the preservation of the fundamental right to a fair trial-

e) Absent an objection from defense counsel at trial, in this

particular case, review under the doctrine of fundamental
error,is legally justified.

2. This Court recommends GRANTING the relief sought by the Ap-
plicant, Desmond Ledet.

Signed on this the Day of 20

 

(PLEASE SIGN)

 

Judge Presiding

p.20 of 42

DEFENSE COUNSEL, CURTIS FORTINBERRY, WAS INEFFECTIVE

Findings and Conclusions Related to Ground #Z(Constitutionally
deficient performance/Structural Error)

"APPLICANT SUFFERED A STRUCTURAL DEFECT DUE TO DEFENSE COUN-
SEL'S DEFICIENT PERFORMANCE(NOT OBJECTING TO THE EXCLUSION
OF MR. & MRS. LEDET FROM VOIR DIRE PROCEEDINGS WHICH VIOLA-
TED THE PUBLIC TRIAL RIGHT GUARANTEED UNDER THE 6th & 14th
Amend., U.S. COnSt.); ABSENT ERROR APPLICANT WOULD HAVE A-
VAILED HIMSELF OF PUBLIC TRIAL RIGHT."

v On the first page of this ground #2, page 8 in the writ Appli-

cation, the Applicant specifically states£ "GROUND 1 IS INCOR-
PORATED INTO THIS GROUND."

Ground #1 is:

"APPLICANT WAS DENIED, WITHOUT INTENTIONAL RELINQUISHMENT OR
ABANDONEMENT, NOR KNOWLEDGE OF, OF HIS RIGHT TO A PUBLIC TRI-
AL, AND TO DUE PROCESS, AS GUARANTEED HIM BY THE SIXTH AND
FOURTEENTH AMENDMENT OF THE UNITED STKTES CONSTITUTION(DURING
THE ENTIRE VOIR DIRE PROCEEDING). \

This Court concludes that the Applicant is alleging that his
defense attorney is ineffective for not objecting to the un-
constitutional violation of his right to a public trial that
he raised in Ground #1, that resulted in his parent's being
excluded from the voir dire proceedings, which defense counsel
also did not object to. `

ln the writ Application pages(p.8-9) for Ground #2 the Appli-
cant specifically alleges his_defense attorney, Curtis Fort-
inberry was ineffective because:

/

a) "Defense counsel, Curtis Fortinberry, did not object to
the exclusion of the Applicant‘s parents from the voir di-
re proceedings." (Appli. at p.8)

b) "Defense counsel was aware of the closure before voir dire
began yet:

1) made no objections" (Appli. at p.9)

2) did not inform the Applicant or his parents of the pub-
lic trial right" (Appli. at p.9)

3) did not request the Court to fulfill it's duty to per-
form the 'WALLER' Test" (Appli. at p.9)

4) did not object to closure without justification through

p.21 Of 42

5.

a finding of the Court of some overriding interest likely
to be prejudiced by allowing Mr. & Mrs. Ledet inside of
the proceedings." (Appli. at p.9)

5) Made no attempts to secure a public voir dire at all." (
Appli. at p.9) ~

In all the Applicant has alleged defense counsel is ineffect--
ive in relation to this ground for 6(six) seperate, yet mutual
connected reasons.

The Applicant also contends that in regards to the prejudice
prong of "Strickland" the error is structural and he is enti-
tled to a limited prejudice inquiry_ (pages 19, 27-28 of the
Memorandum-of law attached to the writ Application).

In support of his assertion that the law holds he is;entitled
to a limited prejudice inquiry the Applicant relies heavily on
Johnson v. State, 169 S.W. 3d 223, 231(Tex.Crim.App.2005)(cita-
tions omitted)(explaining the limited prejudice inquiry for in-
effective assistance/structural error claims); And Owens v.
U“S., 483 F@3d 48, 64(lst. Cir. 2007)(an ineffective assist-
ance case based on an attorney's failure to object to the de-
privation of the right to a public trial),

 

 

To successfully assert that trial counsel's failure to object
amounted to ineffective assistance of counsel, the Applicant
must state the nature of the objection or objections that de-
fense counsel failed to make, and he must show that the trial
judge would have committed error in overruling such an object-
ion. Ex parte Martinez, 330 S.W. 3d 891, 901(Tex.Crim.App.
2011). ~

 

The Applicant has stated what objections should have been ma-
de:

a) In the heading of Ground #2 he stated that his defense at-
torney did not object to the exclusion of his parent's
, who represented the public, from voir dire, and that the
eXClUSiOn:"VIOLATED THE PUBLIC TRIAL RIGHT UNDER THE.€th &
14th Amend., U.S. Const. "

b) On page 26 of the Memorandum of law attached to the writ b
Application the Applicant stated for this Ground: "Failing
to object to the deprivation of the safeguard of the 6th &
14th Amend. public trial right was deficient performance."

c) On page 26 of the Memorandum the Applicant also argued: "
Curtis Fortinberry should have objected under the Sixth and
Fourteenth Amend. U.S. Constitution rightvto a public tri-
al- He also could have cited Waller,supra or Presley,su-

p.22 of 42

/

pra in his objection. He should have objected to the Wal-
ler Test Requirements not being met. He could have object-
ed that those same requirements were reiterated in Presley
l and not being met.“

 

d) On page 27 of the Memorandum of Law attached to the writ Ap-
plication the Applicant argued that: "defense counsel had
ample time to object to the closure before the trial began..

2. As shown above in section (P)(4)(a) & (b) the Applicant cited
in the Application pages for this ground(p.8-9) the same or
similar objections counsel should have made that he argued in
the Memorandum.

THIS COURT'S CONCLUSIONS ARE NOT~BASED IN THE DISTORTING EFFECTS
OF HINDSIGHT REGARDING DEFENSE COUNSEL'S PERFORMANCE

R. All of the findings of fact and conclusions of law for Grou=
nds #l, #3, & #4 previously proposed are incorporated into-
this Ground #2 alleging defense counsel was ineffective for

h not objecting to the violation of Applicant's right to a pu_
blic trial under the 6th & 14th Amendment,and Presley and
Waller. 7

\

S. The Applicant, Desmond Ledet, was represented by the.honora-
ble Curtis L. Fortinberry.

l. The honorable Curtis L. Fortinberry filed an Affidavit in
response to a Court order that he do so addressing these
Grounds.--His Affidavit was filed with the Clerk on Nov.
20th,'2014.

24 Attorney Fortinberry*s Affidavit, has supplied this Court
with his personal subjective reasoning from his personal
perspective at the time of trial in relation to this Grou~
nd.

3. Attorney Fortinberry also V©luntarily addressed Applicant-
's Ground's #l, #3/ & #4 in his Affidavit, further supply-
ing this Court with his personal subjective reasoning ;
from his personal perspective at the time of trial in re-
lation to those grounds.

4. This Court concludes that because Attorney Fortinberry has
provided evidence of his personal subjective reasoning,being
based on his personal perspective at the time the Applicant
alleges he should have objected to the violation of the public
trial right/ then this Court's factual and legal conclusions
regarding the reasonableness of his decision not to object are

"p.23 of 42v

not at all grounded in any second guessing with the distorted
benifit of hindsight. Strickland v. Washington, 466 U.S. 668
, 689-90(1984).

 

----- y ~----------------------~----THE PREJUDICE PRONG

T.

The Sixth Amendment guarantees the right to effective assist-
ance of counsel in criminal prosecutions. Yarborough v Gentry/
540 U.Ss 1,5(2003)(per curium).

/

 

This Court recognizes that most ineffective assistance
claims are analyzed under the well known "Two~Prong Test" of
Strickland/ 466 U.S. at 687, 691-92.

Because this Court is bound by law to follow the precedent of
the Texas Court of Criminal Appeals, and the United State's
Supreme Court, this Court concludes that it must analyze this
particular ineffective assistance of counsel ground under the
"Strickland" framework, yet, ‘excepted from the straightfor-
ward application of Strickland's requirements.

Under the usual "Strickland Two- Prong Test", in order for an
Applicant to obtain reversal of his conviction and a new trie
al, the_Applicant would have to show:(l) That his lawyers pp
performance was deficient, and:(2) aside from his lawyer's
deficient performance there is a reasonable probability that
the trials outcome would have been different. Id.

In Johnson v. State, 169 S.W. 3d 223, 2301Tex.Crim.App.2005)
the Texas Court of Criminal Appeals held that "Besides the
complete denial of counsel/ there are only two situations ex-
cepted from the straightforward application of Strickland's
requirements to defense misconduct: (l) a conflict of inter-
est and:(2) deficient performance regarding a right the vio-
lation of,which would constitute a structural defect."

 

"To avoid the requirements of Strickland, the defendant's com-`
plaint must reveal error attributable to the court, and not
simply defense counsel-" Id. at 233

This Court concludes that because the trial court failed at
it's duty to perform the "Waller Test”i and failed to full-
fill it's obligation under Presley to take every reasonable
measure to accommodate public attendance at criminal trials,
that this particular ineffective assistance of counsel ground
is a complaint that reveals "error attributable to the trial
court and not simply to defense counsel." Johnson, 169 S.W.
223, 230.; Presley, 130 S.Ct. at 7257 Lilly, 365 S.W. 3d at
331; Steadman, 360 S.W. 3d at 5054"Presley also puts the onus
squarely on the trial judge”).

\

p.24 of 42

7.

9.

\»

In Steadman the Court oprrimin l Appeals emphasized: "the
burden of considering reasonable alternatives to closure rest
squarely upon the trial court itself...and there is no burden
on the defendant to proffer alternatives" Id. at 505.

The Court of Criminal Appeals, in Johnson, laid out clearly
the proper analysis for this particular ineffective assistance'
of counsel claim in regards to harm.

The Court said: x

"The appropriate standard of harm or prejudice depends

iupon the answers to two questions: First, is the de-
privation of a defendant's right-..,caused by defense
counsel, an error that is properly attributable to the
trial court? Second, is the deprivation of a defendant's
right..-the kind of violation that is properly-character-u
ized as a 'structural' defect?...If the answer to both is
lyes'(attributable to the trial court and a structural
defect) then the deprivation is constitutional error of
'the 'structural' variety and no analysis of harm or pre~
judice is conducted.V

Johnson, 169 S.W. 3d at 228.

10

ll.

12.

\

This Court concludes that under the above said "Johnson" ana-
lysis for ineffective assistance of counsel claims for struc-
tural error/attributable to-the trial court and not just sim-
ply defense counsel, the Applicant has realisticaly andnunr
deniably established that his Ground #2 is that type of a¥
claim.

This Court further concludes, that no analysis of harm or
prejudice needs to be conducted.

This Court concludes that under the above said Johnson analy-
sisl the Applicant, Deslond¢Ledet, has satisfied the second
prong of Strickland.

To obtain habeas corpus relief the Applicant needs only to
Satisfy the deficient performance prong of Strickland.

THE DEFICIENT PERFORHANCE PRONG

Under the performance prong, there is a presumption that Coun-
sel's strategy and tactics fall "within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at
1609. '

This Court concludes that based upon defense counsel's own ad-
mission, his failure to object was not a strategy or tactic.

p.25 of 42

3. Based upon Attorney Fortinberry's own admission in his Affida-

4.

vit_, his failure to bbject to the violation of Applicant's
'public trial right, and the exclusion of his parent's during
voir dire, was based on inattention and neglect, amongst other
reasonskthat justify a conclusion from this Court that his
performance was deficient.(COPY OF AFFIDAVIT IS ATTACHED).

Attorney Fortinberry reveals in his Affidavit response to Ap-
plicant's Ground #l that he did in fact go out into the hall _
and speak with Applicant's parents prior to the start of voir.
dire,(AFTER-THAT HE ASSERTS THAT HE BECAHE TOO 'BUSY")

The Applicant and his parent's(who presented Affidavit's) ver~
sion of what Attorney Fortinberry's conversation with them en-
tailed out in the hall before voir dire began,conflicts slir
ghtly,with Attorney Fortinberry's version of what he said to
them out in the hall before voir dire began.

a) Based upon the Affidavits submitted by both of the Appli-
cant's parent's(labeled Exhibit A & B in the Memorandum!s
Appendix) Attorney Fortinberry came out in the hall to:
(ll speak with them prior to voir dire early in the morn-
ing on the first day of trial; and (2) to get free world
clothes from them for their son, the Applicant,to wear on-
ce he entered the courtroom so that he would not be dres-
sed in prison garb; and (3) to inform them that there
would be no where for them to sit in the courtrooms pub-
lic seating area because the trial court was bringing in
a large panel-of prospective jurors who would take up all
of the seats leaving no accommodations for them in the
gallery; and (4) that the trial court would not allow any
public in until voir dire was over due to space concerns;
and (5) after voir dire was over Attorney Fortinberry came
back out in the hall, informed them of a recess and told
them what time to report back to be allowed in to witness
the guilt innocence phase.

b) In contrast, Attorney Fortinberry swears under Oath:,tl);
that he told Applicant's parent's that he did not know
"where they "wouldisit during voir dire."(Affidavit responr
se to Ground #l); and (2) "I never said they were not al-
lowed in the courtroom"; and (3) "I was busy getting ready
for jury selection so I did not see to it they had accom-
modations in the courtroom during voir dire."

6. While the two versions slightly differ, both versions esta¢.

blish for this Court enough facts for this Court to conclude:’

a) Prior to the outset of voir dire Applicant's parents
were present and ready to enter trial.

b) Before voir dire began, Attorney Fortinberry came out in
the hall and spoke with them about the fact that there was
going to be a seating problem for them during voir dire.

p.26 of 42

.7.

c) By attorney Fortinberry's own admission,he, having know-
4 ledge before hand, after speaking with Applicant's par~
ents,chose not to object even before voir dire began, and
instead chose to,in his own words,become: "busy getting
ready for jury selection so I did not see to it they had
accommodations in the courtroom during voir dire."

d) Attorney Fortinberry did not consider securing his own
client“s right to a public trial under the sixth and four-
teenth Amendment of the United States Constitution to be
of significant importance in comparison to whatever else
he may have been doing, which he does not say, that sup-
posedly kept him to busy to object-towthe violation of
the public trial right,

e) Since he was too busy to see to it they had accommoda- y
tions then, even though the trial court as seen in the re-
cord failed to perform Waller Test, etc., his failure to
object could not have possibly been based on any reasoned
well planned or thought out trial strategy.

f) Since he was too busy to be concerned with making`surethe
public trial right was `secured, instead of violatedl his
failure to object was the product of inattention and ne-
glect- - !

;A decision cannot be fairly characterized as "strategic" un-

less it is a conscious choice between two legitimate and ra-

tional alternatives. lt must be born of deliberation and not

happenstance, inattention, or neglect. Wiggins v. Smith, 539
U-s. 510, 526(2003).

 

This Court further concludes that once voir dire actually be-
gan:

a) Defense counsel was aware, based upon his own admission
that: "...the courtroom was full” with potential jurors
and the Applicant's parents were still out in the hall.
(His Affidavit response to Ground #l§ _

b) And "the gallery was full” leaving no accommodations for
the public, while having knowledge that Applicant's par-
ents who he had earlier spoken with in the hall, were
still in the hall as;a result of the unconstitutional si-
tuation.(His Affidavit response to Ground #2).

C) Defense counsel, based upon his own admission, was aware
that the trial judge had filled up the courtroom, leaving
no accommodations for the_public without first of all per-
forming the Supreme Court mandated ’Waller Te§t' (His Af-
fidavit response to Ground #3)..Att0rney Fortinberry spe¥
cifically stated: "I can not speak for the trial judge as
to why hé`did not perform a 'sua sponte' 'Waller Test'"Id.

p.27 Of 42

This Court further concludes that once voir dire began Attor-
ney Fortinberry could not have been ”busy” preparing for voir
dire anymore,yet based upon neglect and not strategy, he still

\failed to object to the apparent deprivation of Applicant's

lO.

ll.

12.

U.

1.

right to a public trial during voir dire.

This Court concludes that defense counsel's failure to ob-
ject was based on inattention and neglect, and this Court ~
owes no "deference to counsel's judgementsf(Strickland, 466
U.S. at 689)f in this matter, they were not/based on:strategy.

This Court concludes that since Attorney Fortinberry's fail'-l
'ure to object was not based on any strategy by his own admis-
sion, the presumption that counsel's strategy and tactics fa-
ll "within the wide range of reasonable professional assist-
ance" is perfectlynrebutted by the preponderance of the evi-
dence to the contrary. (Strickland, 466 U.S. at 689).

Because defense counsel's failure to object was based on in-
attention and neglect this Cpurt concludes that considering
the totality of the circumstances, the decision not to ob-
ject fell beneath an objective standard of reasonabdeness.
(§trickland, 466 U.S. at 687-88).

------------- FURTHER EVIDENCE OF DEFICIENT PERFORMANCE

Both the performance Component and the prejudice prong of
Strickland are mixed questions of law and fact. Id. at 698.

Based on the following this Court concludes that Attorney
Fortinberry's performance was deficient as a matter of law
in regards to Ground #2:

"The right to the effective assistance of counsel is recog-
nized not for it's own sake, but because of the effect ithas`
on the ability of the accused to receive a fair trial" United
States v. Cronic, 466 U.S. 648, 658(1984).

Strickland established that r"Most important, in adjudicat-
ing a claim of actual ineffectiveness of counsel...the ulti-
mate focus of inquiry must be on the fundamental fairness of.
the proceeding whose result is being challengedf"ld'at 696.

The United States Supreme Court has repeatedly emphasized
that the right to a public trial ensures fairness, discour-
agespmmjury etc. See these findings p.l4-l5, & 18-19.

Recently the Texas Court of Criminal Appeals handed down it'-
s opinion in Cameron v. State¢ again emphasizing the cri-
tical relationship between the fairness of a trial and the
might to a public trial. 2014 Tex. Crim.App. LEXIS 1536, *13.
(handed down October 8, 2014). `

,p.28 of 42

6.

In Cameron *13 the CCA(quoting Waller, 467 U.S.., at 46, &
Press-Enterprise, 464 U.S. at 5105stated: "The requirements of

a public trial is for the benifit of the accused:" (emphasis

added)` "that the public may see he is fairly dealt with and
not unjustly condemned...a public trial encourages witnesses
to come forward and discourages perjury...Openness thus enhan-
ces bbth the basic fairness of the criminal trial and the ap-
pearance of fairness.” _______________

The Supreme Court has repeatedly emphasized that; "it is v
through counsel that the accused secures his other rights."
Kimmelman v. Morrison! 477 U.S. 365, 377(1986)(citingiMain v.

 

Moulten, 474 U.S. 444, 446(1940); Chronic, 466 U.S. at 653 )

"An accused is entitled to be assisted by an attorney, wheth~
er retained or appointedy who plays the role necessary to en-
sure that the trial is fair." Strickland, 466 U.S. at 685

Based on the foregoing law this Court concludes that the Ap-
plicant's lawyer was deficient and the Applicant had consti-
tutionally ineffective assistance of counsel. His lawyer was
not effective at securing his right to a public trial. En turn

7his lawyer failed to secure his right to;a fair trial by not se-

securing the public trial right,or at least attempting to do
so. Had an objection to the closure been overruled by the
trial court, it would have constituted reversible error. The
Applicant pointed this Court to sufficient State and Federal
precedent in his Memorandum of law attached to his writ Ap-
plication to establish by the preponderance of the evidence
that had Attorney Fortinberry lodged a proper objection, the
trial court would have committed reversible errork§)overruling
that objection. (Memorandum of Law at p.20-23,& 26-27).

------------- LACK oF KNowLEDGE oF~ApPLIcABLE tAw

lO.

ll.

12.

Although this Court,concludes that the above legal and factu-
ual'findings and conclusions are sufficient to establish that

fdefense counsel was ineffective in this.matter,this Court

further concludes that Attorney Fortinberry's Affidavit re-
veals that his failure to object,.was) inter alia; based on a
lack of knowledge of the applicable law. ,This Court has al-
ready concluded that the failure to object was not tactical.

"A criminal defense attorney must have a firm command of the
...governing law before the lawyer can render reasonably ef-
fective assistance." Ex parte Welborn, 785 S.W. 2d 391, 393
(Tex.Crim.App.l990).

 

"Ignorance of well-defined general laws, statutes , f.»

and legal propositions is not excusable and such ignorance
may lead to a finding of constitutionally deficient assistan-
ce of counsel, but the specific legal proposition must be
well considered and clearly defined." Ex parte Chandler, 182

p.29 of 42

 

13.

14.

15.

16.

17.

18.

l9

20.

S.W, 3d 350, 358(Tex¢Crim.App.2005).

"Counsel's performance will be measured against the state of
the law in effect during the time of the trial..? Id. at 359

Based on the following this Court concludes that at the time
defense counsel failed to object to the violation of Appli-
cant's public trials-the unconstitutional exclusion of his
parents from voir dire proceedings-the law was well settled
that the 6th & 14th Amendment right to a public trial ex-
tends to jury voir dire and that closure during that stage
must meet the standards provided in WALLER.:

lt was on the morning of June 22l 2010 when defense counsell
Curtis Fortinberry, failed to object to thevviolation of the
Applicant's right to a public trial during voir dire.

A little over 5 months earlier,on Jan 19, 2010, the United
States Supreme Court held in a per curium opinion, that the
law was already well settled that the Sixth Amendment right
to a public trial extends to jury voir dire and that closure
during that very critical stage must meet the standards pro-
vided in Waller. Presley v. Georgia, 131 S-Ct. 721(2010).

 

The Supreme Court granted Certiorari in Presley in regards

to the question of "whether it is so well settled that a de-
fendant's Sixth Amendment right" to a public trial "extends

to voir dire that this Court may proceed by summary disposi-
tion." The Court affirmed that Waller and Press-Enterprise I'
"settle the point”. Presley[ 130 S.Ct. at 723-24.

Applicant relied heavily on Owens.supra (Attorney failed to

object to violation of public trial during voir dire(2007 o-
pinion». On remand,granting Owens a new trial, the Court held
"h..failure to object was not tactical, but based ona lack
of knowledgeof the applicable law...counsel should have knoe:

`wn the applicable law, and should have objected." Owens v.U-A

nited States(Owens IV), 517 F. Supp. 2d 570, 574-77(2007).

 

This Court concludes that because the Supreme Court held in
Presley that the above said question was well settled by Wal-
ler and Press- Enterprise I, S Ct opinions well known since "
1984, then at the time of Applicant's trial, based upon Su-
preme Court precedent, the fact that the public trial right
extends to voir dire had been r'wel]'_..s'>ettled" for over 25 years¢

 

In 2007, several years before Applicant' s triall in Owens IV,
the court speaking of Owens trial in 1997/ citing Waller and

Press- -Enterprise I, stated: :"Reasonable counsel with requi~

site knowledge of the law would have objected]..the important
Supreme Court precedents had existed for more than a dedade."
:Owens IV, 517 F. Supp. at 576.

 

P.30 of 42

z

21. This Court concludes that Applicant's defense attorney, Curt-
is Fortinberry also should have been aware of the applicable
law 13 years after Owens trial, over 25 years after the Su-
preme Court decided Waller and Press-Enterprise I/ and over 5
months after the Supreme Court reiterated that the applicable
law was already very well established in Presley .

22. "access to counsels skill and knowledge is necessary to ac-
cord“defendant's the ample opportunity.to meet the case of
the prosecution' to which they are entitled." Strickland, 466

U.S. at 685 .

23. "Counsel;..has a duty to bring to bear.such skill and knowle-
dge as will render the trial a reliable adversarial testing
process," Id. at 688 »

A COPY OF ATTORNEY FORTINBERRY' S AFFIDAVIT IS ATTACHED TO THESE
PROPOSED FINDINGS AND CONCLUSIONS.

___________-________________________________-_____________________\_ ______

24. Attorney Fortinberry stated in his Affidavit that: "Because
the gallery was full, Petitioner's parents assumed they were
not allowed in." (His Affidavit response to Ground #2). And
. "I do not believe that his parents not being in the court-
room during voir dire constitutes a violation of his sixth
and fourteenth amendment rights to a public trial." (His Af-
fidavit response to Ground #4).

25. In his Affidavit he also stated: ”I cannot speak for the tri-
al judge as to why he did not perform a 'sua sponte 'Waller'
test, NOR DID IVSEE THE NEED FOR ONE.” HiS Affidavit respOn-

se to Ground #3)

26. Based upon Attorney Fortinberry's own perspective reasoning
at the time he failed to object this Court concludes that:

a) Attorney Fortinberry believed that the trial court's pub-
lic trial right offending action of: (l) filling the en-
tire gallery(public seating area) with prospective jurorsf
(2)_resulting in no accommodations being left inthecourt-
room to accommodate the public, or Applicant's parents who
he(defense counsel) had already spoken with out in the ha-
ll, that he,had personally informed that they would have a
problem being seated once voir dire began(based upon eith-
er his version-or Applicant' s parent' s version, of what
he said to them out in thelhall) (3) before and without
ever performing the Supreme Court mandated ”Waller Test'(
considering reasonable alternatives to closure, etc.), and
(4) without ever even attempting to fulfill the court's
obligation to ”take every reasonable measure to accommoda-
te public~attendance at criminal trials”, did not, as he
put it, :. constitute "a violation of" Applicant's "sixth
and fourteenth amendment rights to a public trial."(His Af-

.....

p.31 of 42

fidavit response to Grounds 41-#4).

b) Attorney Fortinberry was unable to recognize the fact
that he was a personal witness to all of the required ele+
ments that constitute an actual violation of the sixth
and fourteenth amendment right to a public trial during
'voir dire. ~

c) Attorney Fortinberry's inability, inferred from his own
words in the Affidavit, to recognize that his clients ri-
ght to a public trial was being violated before his very
own eyes, indicates that he too had a lack of understand-
`ing of the well settled applicable law.

d) Attorney Fortinberry was deficient for being ignorant of
the applicable law in affect at the time of trial.

e) Considering the totality of the circumstances, Attorney
Fortinberry's Affidavit statement that he did not see a
need for the trial Court to perform the Waller test("he
did not perform a‘sua sponte 'Waller' test, NOR DID I SEE
THE NEED FOR ONE") further indicates that he did not un-
derstand the applicable law- This Court concludes his
failure to object was unreasonable in light of the facts.

1) besides contending that Attorney Fortinberry "should
have objected under the Sixth and Fourteenth Amend....
right to a public trial[ the Applicant also contended
"He should have objected to the Waller Test Require-~
ments not being met.” See these findings p.21-23.

27. Finally, after having all the facts before him(Attorney»For-

28.

tinberry) that constitute closure(knowledge that Applicant's
parents were in the hall and had come to see the.trial) and
(2) personal visual first hand knowledge that the trial court
brought in a large panel of jurors who took up all of the a-
vailable seats in the gallery(public seating area), (3) lea-
ving no accommodations for the public(Applicant's parents/
etc.,), Attorney Fortinberry still said in his Affidavit:
I was never asked to see if there was somewhere else they _
could sit during voir dire." (His Affidavit response to Grour
nd #2)__and "to my knowledge the courtroom was not closed to
the public."(His Affidavit response to Ground #4).

This Court concludes that the above responses further indica-
te that defense counsel erroneously believed, contrary to the
applicable law, that Applicant's parents, or the Applicant(
neither of which he had ever informed of the public trial ri-
ght), had a responsibility to request of him that he find
them(Applicant's parents)somewhere else to sit in the court-
room since the public seating area was full with prospective
jurors; in order to alert him that Applicant's public trial
right was being violated so he could secure it-

p.32 of 42

(a) Attorney Fortinberry has failed to point this Court to
any case law or provision in the United States Constitu-l
tion that holds that before he renders reasonably effect-
ive counsel, by securing, or atleast attempting to secu-
re, Applicant's fundamental right to a public trial, a
right for Applicant's own benifit'and a safeguard for a
fair trial, that the Applicant, or a member of the public
was required to request him(Attorney; Fortinberry) to do
so.( See Kimmelman, 477 U.S. at 377("it is through coune
sel that the accused secures his other rights.")

(b) This Court concludes that "Where the assistance of coun-
~sel is a constitutional requisite, the-right to be furni-
shed counsel does not depend upon a request."(Carnley v.
Cochran, 369 U.S. 506l 513(1962). And likewise once the
Sixth Amendment right to counsel has attached,and during
a critical stage of trial such as voir dire, the right
to the effective assistance of counsel, including coun-
'sel$s duty to secure the accused ”other rights” does not
"depend upon a request.“

;§ (c) "The initiation of judicial criminal proceedings...marks
the commencement of the 'criminal prosecutions' to which
alone the explicit guarantees of the Sixth Amendment are
applicable." Kirby v. Ill., 406 U.S. 682, 689-90(1962).
The commencement of the criminal prosecution alone a-
gainst the Applicant marked the point at which time the.u.
guarantee of the effective assistance of counsel became
applicable to the Applicant, McMann v. Richardsonv 397 y
U.S. 759, 771 n.14(1970). That guarantee entails defense
counsel playing "the role necessary to ensure that the
trial is fair." Strickland, 466 U.S. at 685. In order to
play that role it was necessary that Attorney Fortinberry
secured, or atleast attempted to secure, Applicant's "o-
ther rights” that are safeguards to the fundamental right
to a fair trial..Kimmelman, 477 U.S. atq377§“The right-to
public`trial is that type of "other'r-ight"v Cameron v.
state, 2014 Tex.crim.App. LEXIS 1536, *14-*15.

@d) Again, based upon Attorney Fortinberry's admitted sub~
jective reasoning from his personal perspective at the
time of trial, his performance was deficient and based on
a¢multidimensional misunderstanding or lack of knowledge
of the applicable law. and inattention and neglect.

29. This Court further concludes that Attorney Fortinberry's sta-
tement "to my knowledge the courtroom was not closed to the4
the public."(His Affidavit response to Ground-#4) indicates
that his knowledge of the applicable law was so deficient
that he was entirely unable to recognize that a closure had
taken place before his very eyes in the samef or a similar
‘way,the trial judge in Cameron v. State, Id. thought that he;
had not closed the voir proceedingsieven though he had.

 

p.33 of 42

3©.

31.

32.

This Court has already concluded that the voir dire proceed~
ing was closed. See these findings p.6-10.

In Cameron, 2014 Tex.Crim.App. LEXIS 1536, *3-*8, the Court
of Criminal Appeals noted that a trial judge who filled up
the entire gallery with prospective jurors(as in Applicant's
trial) did not believe that he had actually closed the voir
dire proceeding to the public. That judge even said repeat-1
edly,after Cameron's attorney objected under the 6th Amend.-
right to a public trial,to her familly and friends being put
in the hall,so he could use the entire gallery to seat pro-
pective jurors:

"We recognize the right to be present during voir dire...

I don't seeany room where anybody else would be able to
sit and observe...There is no way this courtroom can acco-
mmodate them...It's an open trial. Certainly people have
the opportunity to observe. We just`don't know WEERE to
put themr...l'm not ruling. I'm just telling you,WHERE

can we put them?...l'm not over ruling you. WHERE are we
going to put them?. .I've never ruled,that the public has
been excluded. All I'm saying is WHERE do you suggest we
put them?...You want to open up those doors and have them
all stand in that little hallway there so they can observe
the whole thing? Maybe we could do that. Would that satis%
fy you?...l'm giving you alternatives...lf you want to o-
pen those doors and put chairs and have people--have the
public sit there, that's fine with me...The courtroom's
_going to be absolutely stuffed with venire panel members.
...I am telling you that you can have people in this court-
room...I just don't know WHERE to put them. So I'm not
.ruling that anybody's excluded...I haven't told you that
you cannot have people in the courtroom. Tell me WHERE to
put them and we'll put members of her familly...The Court
did not close the proceeding by any means..."

Attorney Fortinberry's Affidavit echoes the same subjective

'reasoning,-or similar reasoning, relied on#by:the trial judge

in Cameron for erroneously believing that the closed voir di-
re proceeding, was not a closed voir dire proceeding.

a) Specifically Attorney Fortinberry alleges in his Affida-i
vit that in the hallway: "I did tell them I did not know
WHERE" Applicant's parents "would sit during voir dire."
(His Affidavit response for Ground #1).

After that, similar to the trial judge in'Cameron, he`r'~'l
then states: "..-the gallery was full.;.Petitioner's par-
ents were present for his trial and were not excluded...

I do not believe that his parents not being in the court-_
room during voir dire constitutes a violation of his sixth
and fourteenth amendment rights to a public trial...to my
knowledge the courtroom was not closed to the public."

p.34 of 42

e)

(His Affidavit response for Grounds #l~#4)

In both cases,both Cameron's judge and Attorney Fortinber-
ry(Applicant's trial lawyer),acknowledge that: (1) the
gallery is full or about to be full with prospective jur-
rors, (2) while having knowledge of the presence of fam-
illy members,who represent the public,being present,yet '…
having no seats available for them in the gallery. And (3)
based on~Attorney Fortinberry's version offwhat he said to
Applicant's parents in the hall(regardless of the fact it
conflicts slightly with what Applicant's parents contend
he said), he too, claims that just like Cameron's judge,
that he made it known that he did not know WHERE the re-
presentitives of the public would sit during voir dire.
Cameron's judge communicated that: "I just don't know WHEF

~RE to put them" to Cameron's defense attorney who was ob-
'jecting to closure. Attorney Fortinberry alleges that he

personally communicated to Applicant's parents that he did
not know WHERE they would sit during voir dire.

In both cases, neither(Attorney Fortinberry or Cameron's
judge) was able to recognize that the existence of circum-
stances that led each of them to conclude that they did

`not know WHERE the public would sit,indicated that an in-

fringement on the Sixth Amendment right to a public trial
had occurred, or was about to occur.

Neither of them acknowledged:that before such an infringe~`
ment on the right to a public trial‘could be constitution-
ally justified, that the trial court was obligated to:
"take every reasonable measure to accommodate public at-
tendance at criminal trials.“ Lilly, 365 S.W. 3d at 331(
quoting Presley, 130 S.Ct. at 725).(& PerfornlWaller Test)

Attorney Fortinberry's Affidavit alleges that after he ma-
de Applicant's parents aware that he did not know WHERE
that they would sit during voir dire, that instead of ob-
jecting based on Applicant's right to a public trial, as
he put it in his own words, he became: "busy getting ready
vfor jury selection so I did not make an attempt to see
to it they(Applicant's parents)had accommodations in the
»courtroom during voir'dire."(His Affidavit Ground #l).

Attorney Fortinberry,-failed to object to closure, based
on inattention, neglect, and a lack of knowledge of the
applicable law,that disabled his ability, just like Camer-
on's trial judge, to know when,based on the totality of
the circumstances,the voir dire was closed to the public.

\Even after voir dire began, and there was no room in the

gallery for the public, Attorney Fortinberry did notunder-
stand that a closure had taken place, based on his own
words.("to my knowledge the courtroom was not closed").

p.35 of 42

10.

/

'This Court recognizes that the Applicant has made several ob-

jections to Attorney Fortinberry' s Affidavit regarding his
response to Grounds #1- #4. .

There exist different versions between Fortinberry and the Ap-
plicant and his parent's version/of what Fortinberry said to
each of them,verbally at the time he failed to object to clo-,
sure. ' '

Nevertheless what is desirable for this Court,i in order to ma-
ke a decision judging whether or not Fortinberry was deficie-
nt for not objecting to the unconstitutional closure,is evi-
dence based upon his subjective reasoning at the time,and

`whether or not his failure to object was based on strategy, or

lack of knowledge of the applicable law, and inattention and
neglect.

Fortinberry has provided enough of the desired evidence need-
ed to conclude that his performance was deficient, and his
failure to object to closure,both before and after voir dire
began,was in fact,based upon inattention and neglect, as well
as a lack of understanding of the Applicable law.

This Court concludes that, as to counsel's performance, "the
Federal Constitution imposes one general requirement: that
counsel make objectively reasonably choices” Bobby v. Hook,
130 S.Ct. 13, 17(2009), that being the law, based upon the
record facts, and counsel's own Affidavit, failure to objectl

~underthe circumstances of this case,was and is objectively

unreasonable.

This Court has judged "the reasonableness of counsel' s con-
duct on the facts of the particular case, viewed as of the
time of counsel' s conduct." Roe v_ Flores- Ortega, 528 U. S.
470 , 477(2000).

 

This Court concludes that the Applicant had Constitutionally
ineffective assistance of counsel.

Both prongs of Strickland are satisfied»

"From the very beginning, our state and national constitu-
tions and laws have laid great emphasis on procedural and
substantive safeguards designed to assure fair trials..."
Gideon v. Wainwright, 372 U.S. 335, 344(1963). That great -
emphasis includes both the right to a public trial and the
right to the effective assistance of counsel‘

 

The combined violations of the right to a public trial and

»the effective assistance of counsel, in this particular case,

amount to structural error: a Fdefect affecting the frame~
work within which the trial proceeds, rather than simply an
error in the trial process itself." Arizona v. Fulminante/

p.36 of 42

F499 U.S. 2791 310(1991)

U. Conclusions of Law and Recommendation Concerning Ground #2:

1. This Court, after weighing the evidence of Attorney Fortinber-
4ry‘s own subjective reasoning at the time of trial presented
in his own words in his Affidavit, the evidence in the Repor-
ter's Record, the Application filed, the supporting documenta-
in the Application, etc., as well as the foregoing factual
and legal conclusions for this ground, as well as ground one,
three, and four} etc. concludes by the preponderance of the
evidence and the Applicable law that:

a) Attorney Fortinberry was Constitutionally ineffective in
regards to Applicant's Ground #2.

b) Applicant has satisfied the prejudice prong of Strickland
under structural error/attributable to the trial court,>
and not simply defense counsel,explained by the Texas Cou-
rt of Criminal Appeals in Johnson v. State, 169 S.W. 3d
223, 228-30(Tex.Crim.App.ZOOS). '

 

b) The only remedy is to vacate Applicant's conviction and
GRANT HIM A NEW TRIAL.

2. This Court recommends GRANTING the relief sought by the Ap-
plicant, Desmond Ledet.

bd
(D

Signed on this the Day of

/

 

(PLEASE SIGN)

 

The Honorable Judge Presiding

p.37 of 42 1 “

Respectf uly;gybmitted,
CIjM lb?{%£

DESMOND LEDET #016\1095
3899 State Hwy 98
New Boston, TX. 75570

CERTIFICATE OF SERVICE

 

I, Desmond Ledet, certify that the original and two copies of
these proposed findings of fact and conclusions of law have been
hand delivered to the Tarrant County, TX. Criminal District
Clerks: Office with instructions for the Clerk to file the ori-
ginalf`with the 396th Judicial District Court of Tarrant County,
TX; and to file one copy with the appellate section of the

District Attorney's Office in Tarrant County, TX.

umwle

DESMOND LEDET

ATTORNEY FORTINBERRY'S AFFIDAVIT

 

The following four pages attached to these conclusion after this
page is a true copy of Attorney Curtis L. Fortinberry's Affida-

vit filed in response to Applicant's Grounds.

p.38 or 42

l u~
N€)V 2 0 2014 _
` - No. c'-396-1152016-A BT;ME\\
sTATE oF TExAs § m THE DlsTRlcT coul;T""""’"
vs. ‘ ’ § 396TH Juch_lAL DlsTRlcT
DEslvloND LEDET § TARRANT couNTY, TExAs

AFF|DAV|T OF ATTORNEY CURT|S L. FORT|NBERRY

BEFORE l\/|E, then undersigned au-thorlty, personally appeared Curtis L.

Fortinberry, who being duly sworn, deposes as follows:

“l\/|y name is Curtis L. Fortinberry. | am at least 18`years of age and of sound

. mind. The facts stated in this affidavit are within my personal knowledge and are true

and correct."

“l was appointed this case on September 14, 2009 and will address all 34 of
Petitioner’s polnts. ‘

Ground 1:

Although the courtroom was full, there was space for Petitionerfs parents
y Petitioner's claims that l refused to allow his parents in are false. l did tell them l did not
know where the would sit during voir dire. l never said they were not allowed in the
courtroom. | was busy getting ready forjury selection so | did not make an attempt to
see to lt that they had accommodations in the courtroom during voir dire.
Ground 2:

` l fall tc- see how Petitioner “suffered a sf;gctural defect” due to defense counsel
not objecting to Petitioner’s parents not"pelng in the courtroom during voir dire. Because
the gallery was full, Petitioner's parents assumed they were not allowed in. l was never
asked to see if there was somewhere else they could sit during voir dire.

Ground 3:
l cannot speak for the trial judge as to why he did not perform a “sua sponte

“VVa||er” test, nor did l see the need for one. Petitioners parents were present for his trial
and were not excluded from the voir dire portion.

p.39 Of 42 .(DEFENSE COUNSEL'S AFFIDAVIT p.l)

Ground 4:

j l do not believe that his parents not being in the courtroom during voir dire
constitutes a violation of his sixth and fourteenth amendment rights to a public trial.
As stated in ground 1, to my knowledge the courtroom was not closed to the public.

Grounds 5-19:

(l did not answer each separately as each ground states essentially the same
thing, that l was ineffective for not objecting to the police interview)

_ lt was my trial strategy to not object to the interview as, in my opinion, reinforced
our contention that petitioner was innocent A|though pressured by the police
detectives Petitioner continued to maintainl in innocence l Wanted the jury to see that
he never wavered in spite of the persistence of the detectives Petitioner knew this prior
to trial and never questioned me regarding this. `

Ground 20:

Our defense was not that Petitioner never had sex with the victim, but that it was
consensual. Defendant admitted this. So l do not see how it was ineffective for me to
object to this line of questioning

Ground 21:

, In addition to my answer to ground 20, Petitioner admitted to having sex with the
victim in a letter he wrote to the district attorney.

Ground 22:

l don’t understand this ground. VVhat he did not say, nor did he ever say, was
that he raped the victim. That was the entire defense in-this case, that it was

consensual.

Ground 23:

This goes back to my answer in grounds 5-19. `

Ground 241 ,

The State explained in voir dire, that if a defendant chose to testify, they had no
special protection, that the jury did not have to believe them and presume what that

person testified.to was true. _At no time did the State allude that if a person testified that
they lost the presumption of i`nnocence. ' `

p.40 of 42 (DEFENSE COUNSEL'S AFFIDAVIT p._Z)

Ground 25:

This is simply not true. l did not ever,tel| Petitioner that he lost the- presumption of
innocence just because he testified

Ground 26:

The State asserts in closing argument that he knew what he Was doing, that he
. knew the neighborhood He knew where to go to have undetected sex. The fact that,he
went to a location and did in fact have undetected sex indicates he knew where he was
'going. This is not outside the scope of the evidence presented

Grounds 27, 28 & 29:

Petitioner asserts that t'ne victim had “muitipie convictions” l saw no evidence of
this. There are two offense reports in which the victim is the complainant but none
where she is the suspect The State produced no criminal histories of the victim even
after a motion to do so was fled The ocher also denied the existence of a criminal

history for the victim under oath.

Grounds 30, 31 & 32:

This ground alleges impeachment evidence regarding two offense reports in
which the victim was the injured party. |n one case, after making the deadly~c`onduct -
family member report, she refused to cooperate in the investigation and the detective
wasn’t convinced complainant -did not embellish the story. The other offense report was
another assault family violence. The police interviewed both her and the suspect and
the detective determined that the complainant really didn’t care about the case so he
cleared it and said that all the elements of assault were not met.

| do not believe this is impeachment evidence as she was not questioned about it
so she did not deny anything regarding these reports Furthermore the mere fact that
the police did not file a case against the two suspects does not mean the assaults did
nothappen

Ground 33:

Petitioner is simply not telling the truth. As stated earlier in this response, the
interview was not objected to because Petitioner steadfastly protested his innocence
despite vigorous interrogation. The intent was to show the jury that if he was guilty he
would not have maintained his innocence even when the detectives came at him from

many different angles .

Ground 34:

This ground states no “ground” except for grounds 1-33

p.4l of 42 (DEFENSE COUNSEL'S AFFIDAVIT p.3)

le. Gil|iland and l worked many hours on Petitioner's case. We read all of
Petitioner’s letters (approximately 20) which included areas of questioning for trial.
Petitioner was very engaged in the defense of his case. We discussed the strategy and
theme of his case. He knew what we were attempting and was in full agreement Many
of the grounds alleged are either false statements, or taken out of context A|though the
jury ultimately did not believe it was consensual sex, they did believe him when he said '
he did not use a weapon, convicting him of a second degree felony rather than a first

degree felony.

We werenot ineffective in the defense of Petitioner and request that the Court

deny his habeas corpus relief.
f‘jz{

citrus L. Fortian

/

SUBSCR|BED AND S_WORN T BEFORE ME On Octobe

Fortinberry.

~Najette ll/lartinez
LANETTE A. MAR?!NEZ otary Public, State of Texas

2014 by Curtis L.

  
   

 

 

\\um,
\\\ vs 'l
¢` ‘.‘.'.£/),»",

      

Notary Public, State ot Texas
My Commission Expires
June 08. 2015

 

 

 

 

 

¥

;p.42 of 42 (DEFENSE CoUNsEL's AFFIDAVIT p‘4)

