                                                                          WR-83,135-01
                                                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 5/7/2015 11:55:17 AM
                                                          Accepted 5/7/2015 12:57:06 PM
                                                                          ABEL ACOSTA
          IN THE TEXAS COURT OF CRIMINAL           APPEALS                        CLERK
                       AUSTIN, TEXAS
                                                                 RECEIVED
                                                          COURT OF CRIMINAL APPEALS
                                                                 5/7/2015
_____________________________                               ABEL ACOSTA, CLERK
                              )       Writ No.
EX PARTE                      )       WR-83,135-01
BARTHOLOMEW GRANGER, )
          APPLICANT           )
                              )
_____________________________ )


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



                                BRAD D. LEVENSON (No. 24073411)
                                Director, Office of Capital Writs
                                (E-mail: Brad.Levenson@ocw.texas.gov)
                                DEREK VERHAGEN (No. 24090535)
                                (E-mail: Derek.VerHagen@ocw.texas.gov)
                                RYAN CARLYLE KENT (No. 24090205)
                                (E-mail: Ryan.Kent@ocw.texas.gov)
                                Post-Conviction Attorneys
                                Office of Capital Writs
                                1700 N. Congress Avenue, Suite 460
                                Austin, Texas 78701
                                (512) 463-8600
                                (512) 463-8590 (fax)

                                Attorneys for Applicant




                                  1
             IN THE TEXAS COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS


_____________________________
                              )              Writ No.
EX PARTE                      )              WR-83,135-01
BARTHOLOMEW GRANGER,          )
          APPLICANT           )
                              )
_____________________________ )

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

      Bartholomew Granger (“Granger”), by and through his attorneys, the Office
of Capital Writs (“OCW”), respectfully requests that this Court remand Granger’s
application for writ of habeas corpus and related materials to the convicting court
with direction to conduct a full and adequate fact-finding process consistent with
Article 11.071 in order to address the numerous controverted, material issues of
fact that remain unresolved in Granger’s post-conviction litigation.


A.    Procedural History
      On May 10, 2013, the convicting court 1 appointed the OCW to represent
Granger in his post-conviction habeas litigation, pursuant to Article 11.071 of the
Code of Criminal Procedure. On October 28, 2014, Granger filed his Initial
Application for Writ of Habeas Corpus (“Application” or “App.”) alleging ten
points of error, including five claims of ineffective assistance of trial counsel and



      1
        In the instant pleading, the phrases “the convicting court” and “the court”
are interchangeable and refer to the lower court. By contrast, the phrase “this
Court” refers to the Court of Criminal Appeals from which remand now is sought.

                                         2
one claim of juror misconduct.2 The State filed its Answer (“Answer” or “Ans.”)
on February 9, 2015.      In its Answer, the State broadly “denie[d] the factual
allegations made in [Granger’s] application, except those supported by official
court records” (Ans. at 2), and it included as exhibits affidavits from Granger’s
trial counsel (Ans. Exs. 1-2).
      Approximately two weeks later, on February 23, 2015, the convicting court
entered an order finding “that no controverted, previously unresolved factual issues
material to the legality of [Granger’s] confinement exist,” and it ordered the parties
to file proposed findings of fact and conclusions of law by March 24, 2015. On
February 27, 2015, Granger moved the court to reconsider its order, which motion
was denied on March 2, 2015. After the parties filed their proposed findings of
fact and conclusions of law, Granger moved the court to grant argument on those
proposals, citing multiple factual and legal errors within the State’s submission.
On March 31, 2015, the State filed a five-page response to Granger’s motion, as
well as an amended proposal which corrected one of the errors which Granger had
identified. The convicting court denied Granger’s request for argument on April 2,
2015, and four days later signed in full the State’s amended proposal.


B.    The Convicting Court Did Not Employ a Fact-Finding Procedure
      Adequate for Reaching a Reasonably Correct Result
      In Ex parte Davila, this Court observed that the standard to which post-
conviction proceedings are to be held is whether “‘the fact-finding procedure there
employed was . . . adequate for reaching reasonably correct results.’” 530 S.W.2d
543, 545 (Tex. Crim. App. 1975) (quoting Townsend v. Sain, 372 U.S. 293, 316
(1963)) (ellipsis in original). The fact-finding process in Granger’s case has been

      2
       The ineffective assistance claims are Claims One through Five; the juror
misconduct claim is Claim Six.

                                          3
anything but reasonable: questions remain unanswered as to whether the State
withheld compelling evidence from trial counsel, in violation of Brady v. Maryland
(see subsection B-1, post); the State’s Answer and trial counsel’s affidavits
mischaracterize—and thereby betray a fundamental misunderstanding of—the
Application’s Claim One (see subsection B-2, post); and trial counsel included
provably false statements in their affidavits (see subsection B-3, post).      And
although an evidentiary hearing would have provided the convicting court with an
opportunity to answer these questions, to clarify the State’s response to Claim One,
to assess counsel’s credibility notwithstanding their erroneous affidavits, and to
correct for so many other infirmities not specifically mentioned in the instant
pleading, the court declined to hold such a hearing. 3

      1.     Granger’s Daughter’s Journal: Evidence of Ineffectiveness or of
             Prosecutorial Misconduct Pursuant to Brady v. Maryland?
      Throughout Granger’s capital trial, both the State and the defense repeatedly
referred to a journal kept by Granger’s daughter around the time when Granger
was alleged to have sexually assaulted her. 4 (18 RR at 36-38; 23 RR at 19-20,

      3
         Whereas Section 9 of Article 11.071 explicitly authorizes the convicting
court to rely on its “personal recollection” to resolve “controverted . . . factual
issues material to the legality of the applicant’s confinement,” Section 8 makes no
mention of the court’s personal recollection when it comes to that first-order
consideration as to whether the aforesaid issues exist. Supposing a convicting
court could rely on its personal recollection to deny a habeas applicant an
evidentiary hearing, such reliance is impossible in Granger’s case because the
judge who presided over Granger’s capital trial is different from the judge who
dispensed with Granger’s Application. Accordingly, the only evidence available to
the court to decide the issues raised in Granger’s Application was the record, the
parties’ filings, and trial counsel’s three-page affidavits.
       4
         Prior to the shooting, which took place outside of the Jefferson County
Courthouse on March 14, 2012, Granger’s daughter Samantha Jackson had
accused both her father and her uncles of sexual abuse, for incidents alleged to
have occurred in 2005, 2006, and 2007. On the second day of the aggravated

                                          4
125-26, 130-31, 139, 175-76, 182-85; 26 RR at 99-100.) 5          Had trial counsel
discovered Samantha Jackson’s journal, they could have presented compelling
evidence to raise doubts in the jurors’ minds as to whether these allegations were
true. 6 This would have served to rebut a particularly prejudicial extraneous offense
and fed into a larger mitigation narrative about Granger’s inability to cope with the
pressure of dealing with false sexual assault allegations against him and his family.
(See App. at 40-43, 56-61.)
      Counsel were aware that the journal contained statements favorable to
Granger and that Granger had the journal in his briefcase the day before the
shooting, but they were unable to locate it. (App. at 64-65.) During the post-
conviction investigation, the OCW discovered the journal inside of Granger’s
briefcase, which was held in evidence at the Jefferson County District Attorney’s
Office. In his Application, Granger submitted the journal as an exhibit and alleged
that trial counsel were ineffective for failing to discover the journal during their
pre-trial investigation.   (See App. at 62-70.)      Granger also argued—in the
alternative, and on the assumption that counsel had examined Granger’s briefcase
prior to trial but that the briefcase did not contain the journal—that the State



sexual assault trial against Granger, Granger shot at Jackson, her mother, and
Granger’s ex-wife as they walked toward the courthouse. A bystander, Minnie
Rae Sebolt, was shot and killed, and her death gave rise to the capital murder
conviction now before this Court.
       5
         All references to “RR” are to the Reporter’s Record.
       6
          As discussed in the Application’s Claim Three, the journal—which
Jackson kept after the time period in which she alleges to have been sexual
assaulted by her father and uncles (App. at 65-67, 66 n.11)—makes no mention of
any abuse, speaks positively about Jackson’s relationship with her father, and
records her self-assessment that “I need to see someone so I can control myself.
What I mean by ‘control’ is not hurting someone.” (Id. at 65-70 (quoting App. Ex.
23 at 9 [Samantha Jackson’s Journal]).)

                                         5
committed misconduct by failing to turn over arguably exculpatory evidence, in
violation of Brady v. Maryland. (App. at 65 n.10.)
      The record in this case, as presently constituted, cannot resolve the open
questions which might be answered in such a fashion as to establish that Granger’s
due process rights were violated. See Brady v. Maryland, 373 U.S. 83, 87 (1963)
(“[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.”). For
their part, trial counsel in their affidavits claim to have spoken with Rife Kimler,
Granger’s attorney for the aggravated sexual assault case, and Judge John B.
Stevens, Jr., the judge who presided over that case, but neither Mr. Kimler nor
Judge Stevens could locate the journal. (Ans. Ex. 1 at 2 [Aff. of James R. Makin];
Ans. Ex. 2 at 2 [Aff. of C. Haden Cribbs, Jr.].) Further, neither the State (in its
Answer) nor trial counsel (in their affidavits) have endeavored to explain how a
pivotal piece of mitigating evidence could have been in the State’s possession but
never disclosed to—let alone reviewed by—Granger’s counsel.7
      Despite these questions remaining unanswered, the convicting court
persisted in its determination “that no controverted, previously unresolved factual
issues material to the legality of [Granger’s] confinement exist.” (Order, Ex parte
Bartholomew Granger, No. 13-16388 (58th Dist. Ct., Jefferson County, Tex. Feb.
23, 2015).) Instead, the court signed the State’s proposed findings of fact and

      7
        The State’s Answer suggests that “a jury might consider [the journal] for
aggravating purposes.” (Ans. at 22-23.) The State offers no reason to believe that
the journal’s contents could be refashioned as aggravating evidence, and counsel
so readily accept the value of the journal to Granger’s defense that, in their
affidavits, they imagined having used what was known of its contents in their
cross-examination of Jackson. See subsection B-3, post (explaining that, contrary
to the State’s Answer and trial counsel’s affidavits, trial counsel did not cross-
examine Granger’s daughter on the contents of the journal).

                                         6
conclusions of law, and that proposal—much like the Answer which preceded it—
failed to address Granger’s contention that the State may have contravened Brady
by withholding the journal from his trial counsel.

      2.     The State’s Mischaracterization and Misunderstanding of the
             Application’s Claim One
      In the first claim to his Application, Granger alleges that his trial counsel
were ineffective for failing to investigate and present readily available mitigating
evidence at the punishment phase of trial. (App. at 28.) In support of this claim,
Granger produced a sworn affidavit from the trial team’s mitigation specialist—a
licensed social worker with ten years’ experience—which affidavit detailed the
mitigation specialist’s limited interactions with trial counsel and the several themes
she had identified and developed in her investigation. (App. Ex. 2 [Aff. of Norma
Villanueva].) In particular, the mitigation report advised the following narratives:

       The heavy toll that the sexual assault allegations took on Granger,
        whose mental state increasingly deteriorated in the years, months,
        and weeks leading up to the shooting.
       The impact that the death of Granger’s sister, Samantha, had on
        him and the rest of the Granger family. In addition to being a
        traumatic event for Granger, investigation revealed that the
        Granger family believed Samantha’s murder was not investigated
        by authorities, and, as a result, they felt victimized by the criminal
        justice system. Granger’s mother, Vallire, instilled a level of
        distrust in her sons, which led to increased isolation and a high
        level of paranoia.
       The extreme domestic violence against Granger’s mother while she
        was pregnant with Granger and throughout his childhood, and the
        effects that had on Granger’s development.

(See App. Ex. 2 at Attachment [Aff. of Ms. Villanueva].)
      None of these mitigation themes were presented at the punishment phase of
Granger’s trial.   Despite their availability and evidence to support them, trial

                                          7
counsel relied on punishment phase evidence developed by their fact investigator,
the former chief of the Beaumont Police Department, then working as a private
investigator on his first capital case.          As one might expect under these
circumstances, see generally ABA, Supplementary Guidelines for the Mitigation
Function of Defense Teams in Death Penalty Cases, 36 HOFSTRA L. REV. 677
(2008); State Bar of Tex., Supplementary Guidelines and Standards for the
Mitigation Function of Defense Teams in Texas Death Penalty Cases, 78 TEX. B.J.
(forthcoming July 2015), the evidence compiled by the fact investigator was
underdeveloped and unpersuasive. 8
      Trial counsel’s five-sentence response to Claim One focuses exclusively on
their decision not to call their mitigation specialist to testify. They ignore the core


      8
          The full text of Guideline 5.1(C) is instructive:

      Mitigation specialists must be able to identify, locate and interview
      relevant persons in a culturally competent manner that produces
      confidential, relevant and reliable information. They must be skilled
      interviewers who can recognize and elicit information about mental
      health signs and symptoms, both prodromal and acute, that may
      manifest over the client’s lifetime. They must be able to establish
      rapport with witnesses, the client, the client’s family and significant
      others that will be sufficient to overcome barriers those individuals
      may have against the disclosure of sensitive information and to assist
      the client with the emotional impact of such disclosures. They must
      have the ability to advise counsel on appropriate mental health and
      other expert assistance.

ABA, Supplementary Guidelines for the Mitigation Function of Defense Teams in
Death Penalty Cases, 36 HOFSTRA L. REV. 677, 682 (2008); see also State Bar of
Tex., Supplementary Guidelines and Standards for the Mitigation Function of
Defense Teams in Texas Death Penalty Cases, 78 TEX. B.J. (forthcoming July
2015) (Guideline 4.1(C)) (same). No evidence has been adduced to suggest that
the defense’s fact investigator possessed training or experience commensurate with
the standards set forth in this Guideline.

                                            8
of Claim One which alleges ineffectiveness “for failing to investigate and present
readily available mitigating evidence,” evidence developed by their qualified
mitigation specialist and presented to them prior to trial. (App. at 17, 25.) As a
consequence of counsel’s failure, the jurors which sentenced Granger to death
were presented with a disjointed and poorly-informed mitigation narrative. (See id.
at 26-28.) The State’s Answer suffers from the same myopia (Ans. at 12), but also
appears to miss the point entirely by discussing counsel’s defensive theory during
the guilt/innocence phase (id. at 14).
      Under Article 11.071, the convicting court has an obligation to resolve
material, contested issues through the various fact-finding measures specified in
the statute. Given trial counsel’s and the State’s misunderstanding of Claim One—
a misunderstanding evinced by their affidavits and its Answer, respectively—the
pleadings in this case are inadequate to answer important questions relevant to
Granger’s confinement under a sentence of death. For example:

       What actions did counsel take to “fully investigate all family
        members and evaluate[] all information,” as alleged in their
        affidavits?
       Were counsel in contact with the mitigation specialist during the
        investigation period? If so, to what extent?
       Were counsel aware of the several themes which the mitigation
        specialist identified? If so, how familiar were they with those
        themes?
       Which aspect(s) of the fact investigator’s background led counsel
        to believe that he was qualified to conduct a mitigation
        investigation in a capital murder case?




                                         9
       Which aspect(s) of the fact investigator’s background led counsel
        to rely on him in lieu of their more experienced and better qualified
        mitigation specialist?

Only after these questions have been answered can the convicting court reasonably
determine “the adequacy of the investigations supporting [counsel’s] judgments”
and, correspondingly, “the deference owed such strategic judgments.” See Wiggins
v. Smith, 539 U.S. 510, 521-22 (2003).

      3.     Trial Counsel’s Affidavits Contain Multiple Inaccuracies, Only
             One of Which Has Been Acknowledged by the State
      As illustrated by subsections B-1 and B-2, ante, trial counsel’s affidavits fail
to address important allegations raised in Granger’s Application. On its own, this
failure would necessitate an evidentiary hearing. In Granger’s case, however,
counsel’s affidavits are worse than incomplete—they are provably false, and then
to such a degree that even the State has conceded the point. Specifically, whereas
trial counsel maintain that they “cross-examined Mr. Granger’s daughter on the
contents and statements [within her journal],” (Ans. Ex. 1 at 2 [Aff. of Mr. Makin];
Ans. Ex. 2 at 2 [Aff. of Mr. Cribbs]), the trial transcript belies these assertions (see
20 RR at 75; 26 RR at 103-17).
      These inaccuracies in trial counsel’s affidavits were first identified by
Granger in a Motion to Reconsider, which he filed with the convicting court on
February 27, 2015. (Applicant’s Motion to Reconsider Order Signed February 23,
2015, Ex parte Bartholomew Granger, No. 13-16388, at 9 (58th Dist. Ct., Jefferson
County, Tex. Feb. 27, 2015).) One month later, the inaccuracies again surfaced in
the State’s Proposed Findings of Fact and Conclusions of Law; once more,
Granger brought them to the court’s attention, this time in a Motion to Request
Argument Concerning the Parties’ Proposed Findings and Conclusions.
(Applicant’s Motion to Request Argument Concerning the Parties’ Proposed


                                          10
Findings and Conclusions, Ex parte Bartholomew Granger, No. 13-16388, at 2-3
(58th Dist. Ct., Jefferson County, Tex. Apr. 1, 2015).)) Upon receipt of this
motion, the State finally “acknowledge[d] that the trial attorney’s [sic]
recollections regarding whether that questioning occurred during cross-
examination, as stated in their affidavits . . . are not correct.”       (See State’s
Response to Applicant’s Request for Oral Arguments Concerning Proposed
Findings and Conclusions, Ex parte Bartholomew Granger, No. 13-16388, at 3
(58th Dist. Ct., Jefferson County, Tex. Mar. 31, 2015).)
      The State went on to argue that “[t]his [inaccuracy] does not change the
other credible assertions made by trial counsel therein.” (Id.) But if counsel were
mistaken as to the subject matter of their cross-examination of Granger’s
daughter—and they were mistaken—then the credibility deserved their other self-
serving assertions necessarily diminishes. For example, in their response to Claim
One trial counsel claim to have “fully investigate[d] all family members and
evaluated all information,” and they further claim to have “personally talked with
numerous family members and knowledgeable parties.” (Ans. Ex. 1 at 1-2 [Aff. of
Mr. Makin]; Ans. Ex. 2 at 1-2 [Aff. of Mr. Cribbs].) In response to Claim Two,
counsel likewise claim that their decision not to call an expert to explain the impact
of Granger’s social history was informed by their “[e]valuation of all known facts,
Mr. Granger’s statements and the veracity of all parties.” (Ans. Ex. 1 at 2 [Aff. of
Mr. Makin]; Ans. Ex. 2 at 2 [Aff. of Mr. Cribbs].) None of these assertions should
be presumed correct. Moreover, and unlike statements which may be tested by
reference to the trial transcript, these and other statements offered by Granger’s
counsel only may be tested through the fact-finding process which Article 11.071
permits but which the convicting court truncated.




                                         11
C.    The Convicting Court Erred in Signing Wholesale the State’s Proposed
      Findings of Fact and Conclusions of Law
      Both this Court and the U.S. Supreme Court have criticized lower courts’
practice of adopting wholesale the allegations and conclusions offered by the State
during post-conviction proceedings. Jefferson v. Upton, 560 U.S. 284, 293-94
(2010); Anderson v. Bessemer City, 470 U.S. 564, 572 (1985); Ex parte Reed, 271
S.W.3d 698, 729 (Tex. Crim. App. 2008).              In addition to unnecessarily
complicating this Court’s independent review of the record, Ex parte Reed, 271
S.W.3d at 698, the practice raises serious doubts concerning the fairness of the
proceedings intended to ensure that this State’s most severe punishment has been
lawfully assigned. This is especially true when, as here, the State’s proposal does
little else than parrot the explanations offered by trial counsel in their affidavits,
even to the point where it proposes findings which are belied by the uncontroverted
evidence before the convicting court. (Compare State’s Initial Proposed Findings
& Conclusions 8-9 (averring that trial counsel “cross-examined Jackson on the
contents of the diary”), with 20 RR at 75 (trial counsel declines to cross-examine
Jackson during the guilt/ innocence phase); 26 RR at 103-17 (trial counsel does not
mention the diary in his cross-examination of Jackson during the punishment
phase).)
      Furthermore, while the instant pleading only concerns Granger, it cannot be
ignored that the convicting courts of this State routinely adopt in full the State’s
proposed findings of fact and conclusions of law. See Ex parte Cortne Robinson,
Harrison County, WR-81,583-01 (findings signed Aug. 25, 2014); Ex parte
Kwame Rockwell, Tarrant County, WR-80,232-01 (Sept. 9, 2014); Ex parte Mark
Soliz, Johnson County, WR-82,429-01 (Nov. 6, 2014); Ex parte Garland Harper,
Harris County, WR-81,576-01 (Dec. 11, 2014); Ex parte Gary Green, Dallas
County, WR-81,575-01 (Dec. 31, 2014); Ex parte Juan Ramirez, Hidalgo County,


                                         12
WR-71,401-01 (Jan. 20, 2015); Ex parte Teddrick Batiste, Harris County, WR-
81,570-01 (Jan. 21, 2015); Ex parte John Hummel, Tarrant County, WR-81,578-
01 (Jan. 21, 2015). That such a practice has become commonplace in the review of
capital defendants’ applications for writ of habeas corpus suggests Texas’s death
penalty statutory scheme no longer functions as an independent and impartial
system but, instead, effectively denies capital defendants (like Granger) their due
process rights under the United States and Texas Constitutions. Worse still, and as
is demonstrated in Granger’s case, the practice undermines the accuracy of the
post-conviction review process.


D.    Granger’s Application Should Be Remanded to the Convicting Court
      The whole of Article 11.071 is “built upon the premise that a death row
inmate [has] one full and fair opportunity to present his constitutional or
jurisdictional claims in accordance with the procedures of the statute.” Ex parte
Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002); accord Ex parte Medina, 361
S.W.3d 633, 642 (Tex. Crim. App. 2011). Absent a more searching inquiry into
the allegations raised in Granger’s Application, and through its adoption of the
State’s proposed findings of fact and conclusions of law despite that proposal’s
severe infirmities, the convicting court effectively has deprived Granger of that
opportunity which Article 11.071 is intended to furnish. Accordingly, Granger
requests that this Court remand the Application to the convicting court with
instruction to proceed according to Section 9 of Article 11.071.




                                         13
      Pursuant to that section, the convicting court should be instructed to enter an

order designating the controverted and material issues of fact to be resolved, and
then to resolve those issues in the manner set out in Section    9.   Only then will
Granger be provided his "orle fulI and fair opportunity" to present his claims. Ex
parte Kerr,64 S.W.3 d at 419.


                                           Respectfully submitted,



DATED:      May 7,2015                By            V
                                           Derek V
                                           Post-Conviction Attomey

                                      By
                                           RtFn
                                                4nz%
                                                 Cí'(itéKent
                                           Post-Conviction Attorney




                                           I4
                          CERTIFICATE OF SERVICE

I, the undersigned, declare and certi$, that I have served the foregoing Applicant's
Objections to the Convicting Court's Findings of Fact and Conclusions of Law
upon:



Court of Criminal Appeals
P.O. Box 112308
Austin, Texas 787I1
(Original by e-file)

Jefferson County District Attorney
Attn: Wayln Thompson
ll49 Pearl Street
Beaumont, Texas 7770I
(One copy)

Bartholomew Granger
TDCJ No. 999579
TDCJ Polunsky Unit
3872 FM 350 South
Livingston, TX 77351
(One copy)


This certification is executed on May 7,2015, at Austin, Texas

I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge.



                                           Derek V




                                          15
