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RECE|VEDIN
. IN THE COURT QF cRIMINAL AP`PEALS r‘.'WRTOF CR|M|NALAFPEALS
OF TEXAS APR 21 2015

. 481,779-01
M_____ -\belAcos?a,Clerk

Ex RARTE RQYCE GENE SWIM, Appli¢aht

 

 

APPLICANT'S RELATED OBJECTIONS CONCERNING
LIVE EVIDENTIARY HEARING
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO.-CR15428¥A IN THE 27lSt DISTRICT COURT
FROM WISE COUNTY

 

 

Applicant'S Address:

Royce Gene Swim
TDCJ'#1700522

Price Daniel Unit
938 South FM 1673
Snyder, Tean 79549

Counsel'S Address:
BillRay, Attorney

512 Main St., Suite 308
Ft. Worth, Texas 76102

APPLICANT'S RELATED OBJECTIONS CONCERNING
THE LIVE EVIDENTIARY HEARING,

 

OBJECTION #l: Competent Counsel On Appeal (Habeas)
Applicant contends he did not receive competent habeas
_Counsel at the Live Evidentiary Hearing. The appointed habeas
counsel, Mr. Bill Ray (hereinafter referred to as habeas
counsel), appeared indifferent to Applicant's claim of innocence
and therefore acted incompetently in failing to develop from

the record (and other sources) pertinent testimony, material
facts and other evidence in support of Applicant's claim of
innocence. While Applicant concedes that he is not entitled

to effective assistance of counsel on habeas corpus appeal,
Applicant asserts that he is entitled to "competent counsel",
where such competent counsel would competently prepare for the
habeas evidentiary hearing to assure that the Applicant receives
a full and fair hearing.

n At Applicant's Live Evidentiary Hearing, habeas counsel was
unprepared in that he did not take steps to procur evidence from
the record, collaborating testimony, demeanor evidence, and other
material facts to demonstrate to the hearing Judge that there'
does exists previous inconsistent statements from the victim
that would in fact support Applicant's claim of innocence in
light of the victim‘s present recantation.

Moreover, in his duty to prepare for the evidentiary hearing,
habeas counsel was unprepared in that he did not utilize a
criminal defense investigator. As a result, evidence that is
crucial to Applicant's_claim of innocence was not fully developed
by habeas counsel. For.example,.hab#as counsel could have, but

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did not, subpoena or call to the stand supporting witnesses to
introduce additional testimony and material facts that
adequately support Applicant's claim of innocence. One such
witness that could have been subpoenaed, among others, is the
Notary Public with whom the victim recanted under oath.v The
Notary Public can in fact offer demeanor evidence as to the
credibility of the victim's recantation. 'In this light,
demeanor evidence is a significant factor in adjudging credibility.
And questions of credibility, of course, are basic to resolution
in conflicts of testimony (see Townsend v.'Sain, 372 U.S. 2931
83 S.Ct. 745, 9 L.Ed.2d 770 (1963)).

hlso, counsel could have called to the stand the victim's
mother, Kimberly Swim, in order to introduce or procur any
Credible testimony and evidence as to the evolution of the
recantation7 the spirit of the recantation, the penitent nature
of the recantation, including the demeanor evidence that would
be consitent with the truth and sincerity of the victim's
recantation. And to build upon these material facts, habeas
counsel could have subpoenaed other persons who participated
in the initial investigation, including medical examinations,
so that counsel could have garnered further testimony to show
where the complaintant/victim had previously made questionable
and inconsistent statements which would now shed a different
view in light of the current recantaiton by the victim.

Incidently, the lack of competence displayed by the habeas
counsel deprived the Applicant of a full and fair habeas
evidentiary hearing. In appearing indifferent to Applicant's

'claim of innocence, according to the victim's mother, Kimberly

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Swim, it was reported that the habeas counsel was quoted as
saying: "The State is locking up innocent people and there is
nothing we can do about it." If the State (in Wise County) is
in fact locking up innocent people, a competently prepared
habeas counsel should ensure that the Applicant receives a full
and fair Evidentiary Hearing by the display of supporting
witnesses and material facts relevant to the Applicant's claim
of innocence. Applicant must be given the opportunity to
present testimonial and documentary evidence relevant to.the

disputed issues (see Townsend, supra).

OBJECTION #2: The Right to Confront the Witness

lhe Applicant argues that the habeas Judge at the Live
Evidentiary Hearing should not have allowed the complaintant
(victim) to leave the stand without first ascertaining whether
the complaintant did in fact sign the recantation under oath.
Per the Order for the Evidentiary Hearing issued by the
Court of Criminal Appeals, it was duly mandated in the Order
that the "complaintant shall be called to testify". While
the complaintant did appear at the habeas hearing and took
the stand, the complaintant invoked her Fifth Amendment right
not to testify. Applicant contends that, because the victim
did sign a recantation statement under oath, waiver of the
privilege should be inferred from the witness when the witness's
prior statements have created a significant likelihood that the
finder of fact will be left with a distorted view of the truth
(see Rodriguez v. State, 903 S.W.2d 405 - Tex.App. - Texarkana

1995). The habeas Judge should have compelled the victim to

page 4 of 6
answer questions relevant to the recantation statement she signed

under oath.

OBJECTION #3: The Merits of the Factual Dispute-

The merits of the factual dispute were not resolved at
the state habeas hearing. Because habeas counsel_was'
indifferent to Applicant's claim of innocence, and because
habeas counsel did not engage a competent full and fair habeas
hearing, the merits of the factual dispute of.Applicant's
innocence versus the victim's recantation remains unresolved.
Because the Applicant was deprived of his right to confront
the complaintant/victim witness at the habeas evidentiary
hearing, the merits of the factual dispute of the victim's
recantation remains unresolved. Applicant is entitled to a
full and fair hearing to resolve said issues.

OBJECTION #4: Other Objections to the Findings of Fact
and Conclusions of Law

`While the Applicant has received notice from the.clerk of
the Court of Criminal Appeals indicating that they have
received the supplemental clerk's record, Applicant has not
received any copy of any material from the district court on
any informaiton that has since been sent to the/Court of
Criminal Appeals; vIf any Findings of Fact and Conclusions of
Law have since been issued by the district court and sent to the
Court of Criminal Appeals, Applicant has not received and such
COPY as of this date (April l3, 2015). Whereas, Applicant has
not had the opportunity to review the district court's Findings

of Fact and Conclusions of Law to appropriately and timely make

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his objections to the said Findings of Fact and Conclusions of
Law. With the habeas counsel (Mr. Bill Ray) remaining
indifferent to Applicant's claim of innocence, Applicant is
concerned that the lack of communication between habeas
counsel and himself will deprive the Applicant of the opportunity
to submit other relevant objections to the Findings of Fact
and Conclusions of Law.

WHEREAS, Applicant prays the Court of Criminal Appeals
REMAND this case back to the district court to afford the
Applicant a full fair Live Evidentiary Hearing, that the
district Court appoint Applicant with COMPETENT COUNSEL to
represent the Applicant, and that, in the alternative,
that an extention be granted to afford the Applicant the
Opportunity to submit other objections to the Findings of Fact
and Conclusions of Law, with an Order to the District Court
to provide the Applicant with a copy of any and all findings,
conclusions and records produced from the Live Evidentiary
Hearing. Said records can be loaned to the Applicant for
review through the Price Daniel Unit Law Library Supervisor

who can temporarily retain custody of the records.

Respeéifully ,ubmitted,
/

/

    
 

938 South FM 1673
Snyder, Texas 79549

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing
APPLICANT§S RELATED OBJECTIONS CONCERNING LIVE EVIDENTIARY HEARING has been
mailed to the District Attorney in care of the District Clerk of Wise
County at: Wise County District Clerk, P.O._Box 308, Decature, Texas 76234

on this 14th day of April, 2015.

 

TDCJ #1700522

Price Daniel Unit
938 South FM 1673
Snyder, Texas 79549

STATE OF TEXAS
COUNTY OF SCURRY
v UNSWORN DECLARATION

.The following instrument is made pursuant to federal law, 28 U.S.C.A.
§ 1746 and State law, V.T.C.A. Civil Practice and Remedies Code § 132.001 -
132.003:

I, Royce Gene Swim, TDCJ-ID'NO. #1700522, being presently incarcerated
in the Texas Department of Criminal Justice - institutional Division, at the
Price Daniel Unit, Scurry County, Texas, declare under penalty of perjury
that the above and foregoing APPLICANT'S RELATED OBJECTIONS CONCERNING LIVE
EVIDENTIARY HEARING is true and correct.

Executea en this 14th day of April, 2015.

 

TDCJ #1700522

Price Daniel Unit
938 South FM 1673
Snyder, Texas 79549

