                                                                        WR-83,448-01,02,03
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                                Transmitted 9/29/2015 5:55:11 PM
                                                                 Accepted 9/30/2015 10:23:29 AM
                                                                                  ABEL ACOSTA
                                                                                          CLERK

  CAUSENO.WR-83-448-01         RECEIVED
 CAUSE NO. WR—83-448-02 COURT OF CRIMINAL APPEALS
                               9/30/2015
 CAUSE NO.WR-83-448-03    ABEL ACOSTA, CLERK



     IN   THE COURT OF CRIMINAL. APPEALS
                 AUSTIN. TEXAS



IN   THE MATTER OF THE WRITS OF HABEAS
     CORPUS FILED BY LYNWYATT ALLEN




       REQUEST FOR LEAVE TO FILE
     MOTION FOR COURT TO VACATE ITS
     ORDER DENYING WRIT AND REMAND
     FOR EVIDENTIARY HEARING
       IN THE ALTERNATIVE REQUEST
     FOR COURT TO VACATE ITS ORDER
     DENYING APPLICANTS PETITION
     AND REMAND FOR EVIDENTIARY
     HEARING ON ITS OWN MOTION.


          Cause arising out ofthe I86"‘ District
              Coun, Bexar County. Texas
          The Hon. Jefferson Moore, Presiding



                                    KENNETH ERIC BAKER
                                    SBN      #2404543‘)
                                    "OfCounseI“     to    DiazIakob.
                                    Attorneys L.L.C.
                                    Alamo Towers North
                                    901 N.E. Loop 410
                                    Suite 900
                                    San Antonio, Texas 78209
                                    (.210)226-4500 (p)
                                    (210) 226-4502 (f)
 TO THE HONORABLE COURT:



Relief reguested: Reconsideration or the court’s denial of applicanfs Habeas Petition’s without

hearing and remand for an evidentiary hearing.




                                               Procedural statement of the Case

          On March        18“‘,   2015, Applicant, Lynwyatt Allen, ﬁled an application for a Writ of Habeas

Corpus pursuant       to Article 11.07        of the Texas Code of Criminal Procedure. (Exhibit               AB &C) alleging
ineffective assistance of counsel.            On March 23"‘, 2015 the trial court entered an Order 011 Application
for Post Conviction Relief (Exhibit D). The court found that there were controveited issues that

“create a necessity for a hearing, but that the matter                     is   capable of resolution by affidavit”. The court

ordered   trial   counsel to submit an afﬁdavit conﬁrming or denying the allegations by                       May 7”‘, 2015 and
further directed that       trial   counsel serve the undersigned post-conviction counsel with a copy of the

affidavit (trial counsel’s affidavit attached as exhibit E). Simultaneously the court issued                        an

Designating Issues (Exhibit F) ﬁnding that the issue of ineffective assistance of counsel required

resolution. Trial counsel failed to serve the                   undersigned counsel until March            20"‘,   2015   (trial


counsel’s letter to the undersigned            is   attached as Exhibit G). 10 days later the court issued an QlgI_er_

and Conclusions of Law (Exhibit H) recommending relief be denied based on the statement that                                       trial


counsel “sufficiently rebuts          all   allegations   made against him”. This court issued an order denying

applicant’s writs     “on the findings of the          trail   court” (Exhibit I,J,K)

                                                               Memorandum
    1.    Motions    filed    pursuant       to art.11.07      or   art.   11.071 of the Texas     Code of Criminal Procedure

          and Rule 79.2gdt

          Counsel    is   aware of the limitations imposed by this foregoing rule and therefore asks                      the court


         to reconsider the denial           sua spante based upon the issues and              facts presented in this    motion or

         request.
    2.   Due process requires an evidentiarv hearing to resolve controverted facts where it is the
         word of the defendant against the word of counsel; cross examination is foundational to
         get to the truth in matters where is the word of trial counsel against the word of the
         defendant.


    If a trial court      ﬁnds there are controverted, previously unresolved              facts material to the legality       of

applicant’s conﬁnement,           i.e.,   whether he received ineffective assistance of counsel, as the court in this

matter did, then these issues shall be resolved in a timely manner:

Coode of Criminal Procedure 11.07        art 3 (d): If the convicting court decides that there are
controverted, previously unresolved facts which are material to the legality of the applicant's
confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state
to reply, designating the issues of fact to be resolved. To resolve those issues the court may order
affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using
personal recollection




         While this court gives deference            to the   manner    in   which a trial court gathers evidence due to the

wide variety of claims made           in   Habeas applications, matters which can only be resolved by a credibility

determination usually require a live hearing where the court can observe the witnesses and where the

statements of the witnesses can be subjected to effective cross examination. This court often orders

evidentiary hearings          where the    credibility   of a witness   in at issue.   Ex Parre Brown, 205 SW. 3d 538

(Tex. Crim. App. 2006);           Ex Pa/‘te Thompson, 153 S.W. 3d 416              (Tex. Crim. .App. 2005). This          is


particularly important in claims            of ineffective assistance of counsel where           trial   counsel ﬂatly denies the

defendant’s allegations calling            him a liar and responding with “not true” to each allegation of the

defendant. (see Exhibit E).          The     11'“ circuit stated the   problem well     in Gallego v. United States,        174

F.3d 1196   (1
                 1“‘   Cir.   1999) “Where issues        come down to the testimony of the defendant against the

contradictory testimony of counsel, the defendant                is   going to lose every time” Where there          is   a dispute

between the      client   and the attorney over what occurred the trial court             is   required to   make a credibility

determination that can best be            made after a live hearing.         In Gallegos, the court pointed out that

“magistrate does not even state simply              why the defendant’s lawyer is the more credible              witness in this

case.”
            Based upon the foregoing the applicant though counsel respectfully requests     this court   remand

the matter to the    trial   court for an evidentiary hearing where the completely contradictory statements of

the applicant and    trial   counsel   may be tested by cross examination and the trial court can make a

credibility determination       between the two.




                                                            Respectfully submitted,




                                                            By
                                                              Kenneth Eric Baker
                                                               SBN 24045439
                                                               Alamo Towers North
                                                              901 N.E. Loop 410, Suite 900
                                                              San Antonio, Texas 78209
                                                               210.226.4500 (P)
                                                               210.226.4502 (F)
                                                                 Keb1aw@gmail.com

                                               CERTIFICATE OF SERVICE

This   to certify that a true and correct copy of the foregoing Motion
       is                                                                     was served upon the attorney
for the State and on the Trial Court on September 29"‘. 2015.
                                                                               ‘

                                                     Attenﬁey for Applicant
Exhibit   A
                                                                                   .
                                                                                       '



                                                                                                  F ILEG.
                                         Case N°-                                           ' ONNA KAY MEKINNEY’
                                                                                       _       msrmcr CLERK
                                                                                                BEXAR COUNTY’
                                                                           .   .

                           (The Clerk of the convicting court Wlll ﬁll   tlns line     In.)


                                                                                           INS MAR   I
                                                                                                         ‘I
                                                                                                              A   l|=   05
                   IN THE COURT            OF CRIMINAL APPEALS OF TEXAS                          DEPUTY
                  APPLICATION FOR A WRIT OF HABEAS CORPU§Y———V—-————~——T
                SEEKING RELIEF FROM FINAL FELONY CONVICTION
               UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME:        Lynwyatt Allen

DATE OF BIRTH:              01/25/1991

PLACE OF CONFINEMENT:                    Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX

TDCJ-CID NUMBER: _01935579                                   SID NUMBER: 1001292

(1)    This application concerns (check         all that   apply):

       xx     a conviction                          N/A      parole

       xx     a sentence                            N/A      mandatory supervision

       N/A time credit                              N/A      out-of-time appeal or petition for
                                                             discretionary review



(2)    What district court entered the judgment of the conviction you want relief from?
       (Include the court      number and county.)

       186“ District Court, Bexar County


(3)    What was the case number in the trial court?

       Cause No: 2013CR5726

(4)    What was the name of the trial judge?

       Teresa Hen"




Effective:   Januag   1,   2014                       1
(5)    Were you represented by counsel?           If yes, provide the attorney's   name:

       Paul   J.   Goeke,   SBN 08059250


(6)    What was the date that the judgment was entered?

       06/06/2013



(7)    For what offense were you convicted and what was the sentence?


       Intoxication assault 10 yrs


(8)    If youwere sentenced on more than one count of an indictment in the same court at
       the same time, what counts were you convicted of and what was the sentence in each
       count?




(9)    What was the plea you entered? (Check one.)
                    guilty-open plea          _xx_      guilty-plea bargain
                    not guilty



                     nolo contenders/no contest

       If you entered different pleas to counts in a multi—count indictment, please explain:




(10)   What kind of trial did you have?
           NA no jury                        NA      jury for guilt and punishment
                                              NA      jury for guilt, judge for punishment
 (11)    Did you     testify at trial?     If yes, at   what phase of the trial did you   testify?

        NA
(12)    Did you appeal from the judgment of conviction?

        _     yes                                            xx no


        If you did appeal,       answer the following questions:

        (A)    What court of appeals did you appeal to? NA
        (B)   What was the case number?                   NA
        (C)   Were you represented by counsel on appeal? If yes, provide the attorney’s
              name:

                                                        NA
        (D)   What was the decision and the date of the decision? NA

(13)    Did you ﬁle a        petition for discretionary review in the     Court of Criminal Appeals?

        NA     yes                                      NA no

        If you did    file   a petition for discretionary review, answer the following questions:

        (A)   What was the case number? NA
        (B)   What was the decision and           the date of the decision?     NA

(14)    Have you   previously filed an application for a writ of habeas corpus under Article
        11.07 of the Texas Code of Criminal Procedure challenging this conviction?

        _   yes                                         _xx_    no

        If you    answered     yes,   answer the following questions:

        (A)   What was the Court of Criminal Appeals’ writ number?
        (B)     What was the decision and the date of the decision?

        (C) Please identify the reason that the current claims were not presented and could
            not have been presented on your previous application.




(15)   Do you currently have any petition or appeal pending in any other state or federal
       court?

              yes                                  xx      no

       If you answered yes, please provide the       name of the court and the case number:




(16)   If you are presenting a claim for time credit, have you exhausted your administrative
       remedies by presenting your claim to the time credit resolution system of the Texas
       Department of Criminal Justice? (This requirement applies to any final felony
       conviction, including state jail felonies)

              yes                               xx no

       If you   answered   yes,   answer the following questions:

       (A)    What date did you present the claim?

       (B) Did you receive a decision and,       if yes,   what was the date of the decision?




       If you   answered no, please explain why you have not submitted your claim:
(17)   Beginning on page 6, state concisely every legal ground for your claim that you are
       being unlawfully restrained, and then brieﬂy summarize the facts supporting each
       ground. You must present each ground on the form application and a brief summary
       of the facts. Ifyour grounds and briefsummary ofthefacts have not been presented on
       the form application, the Court will not consider your grounds.
       If you have more than four grounds, use pages 14 and 15 of the form, which you may
       copy as many times as needed to give you a separate page for each ground, with each
       ground numbered in sequence. The recitation of the facts supporting each ground
       must be no longer than the two pages provided for the ground in the form.

       You may include with the form a memorandum         of law if you want to present legal
       authorities, but theCourt will not consider grounds for relief set out in a
       memorandum of law that were not raised on the form. The citations and argument
       must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
       and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
       are challenging the validity of your conviction, please include a summary of the facts
       pertaining to your offense and trial in your memorandum.
 GROUND ONE:
Ineffective assistance of counsel




FACTS SUPPORTING GROUND ONE:
The   attorney for Mr. Lynwyatt Allen         (Defendant) pressured him into a plea.    He was not
prepared to go to trial.




Just before   trial   a plea bargain was presented according to the following terms:




An Application for deferred adjudication and probation could be made and a 15 year cap. The

Attorney for the Defendant represented that no ﬁnding of a deadly weapon would be made and


That the Defendant would receive deferred adjudication because he was “eligible”. The


Defendant was actively mi-led by his attorney as       to his application for probation being



Granted as well as in the matter of no deadly weapon ﬁnding being made. If the attorney had


properly advised the defendant that he might not receive deferred adjudication he would not



have entered a no-contest      plea. If the defendant’s attorney   had told the defendant that a deadly


weapon ﬁnding would be made he would not have entered his plea. I was speciﬁcally told there


would be no ﬁnding of a deadly weapon
GROUND TWO:




FACTS SUPPORTING GROUND TWO:
                          N Vi
A! /4
GROUND THREE:
                            AH/L
                            ‘(\'




FACTS SUPPORTING GROUND THREE:
GROUND FOUR:




FACTS SUPPORTING GROUND FOUR:
     A//(L




13
GROUND:

                       MA
                      VI




FACTS SUPPORTING GROUND:
                           MA
     NW




15
     WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
        RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
                                                   VERIFICATION
              This application must be veriﬁed or it will be dismissed for non-compliance. For
veriﬁcation purposes, an applicant is a person ﬁling the application on his or her own behalf.                   A
petitioner is a person ﬁling the application on behalf of an applicant, for example, an applicant=s
attorney. An inmate is a person who is in custody.

             The inmate applicant must sign either the AOath Before a Notary Public@ before a
notary public or the AInmate=s Declaration@ without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and
then complete APetitioner=s Information. @ A non-inmate applicant must sign the AOath Before a
Notaiy Public@ before a notary public unless he is represented by a licensed attorney, in which
case the attorney   may sign the veriﬁcation as petitioner.

             A non-inmate non-attorney petitioner must sign the AOath Before a Notary Public@
before a notary public and must also complete APetitioner=s lnformation.@ An inmate petitioner
must sign either the AOath Before a Notary Public@ before a notary public or the AInmate=s
Declaration@ without a notary public and must also complete the appropriate APetitioner=s
Information.@

             OATH BEFORE A NOTARY PUBLIC
             STATE OF TEXAS
             COUNTY OF    Ecgg


                                                                       /A
              \£g,g_)/d<+‘\ Ea»                          being duly sworn, under oath says: AI am
                                                                   ,


the applieant /           (circle one) in this action and know the contents of the above application
for a writ of habeas corpus and, according to my belief, the facts stated in the application are true.@



                                                                  Signature of
                                                                                         27                  one)




                                                                        w
SUBSCRIBED AND SWORN T0 BEFORE ME THIS ‘L-“DAY ormdtvelt                                               20   if
                                                                                 .»~9/Q
                                                                                                                 .




               ~       v»
                            JOAQUIN ALBERYO
                            N
                                              romzo. JR.
                                 tary PubIic,State otlexos
                                OMV Commission   Expives
                                     June 17. 2018
                                                                          Si g n
                                                                                 <\ /’

                                                                                   /me    ot   my Pu   my

                                                             16
        PETITIONER=S INFORMATION
        Petitioner=s printed name:

        State bar   number,
                                         K9
                              if applicable:   ZELO
                                                       ch»
                                                             l    5
                                                                       Ea.
                                                                        ii‘   3
                                                                                  W
        Address:                       T-F"J\5                                 Rd:       7??
                     éa           ;LJJr~>~tu               ‘rk                7.97.‘;


        Telephotézf           93                 ”         Lfgod
       Fax:
                                    7'26           '

       INMATE=S DECLARATION

       I,                                              ,   am    the applicant / petitioner (circle one) and

being presently incarcerated in                                                      ,   declare under penalty   of

perjury that, according to    my belief, the facts stated in the above application are true and correct.

                                                            Signed on                                   ,   20        .




                                                           Signature of Applicant / Petitioner (circle one)




                                                     17
Exhibit   B
                                                                                                        HLEB
                                                                                                MNNA KAY MSKINNEY
                                        Case No.                                                  DISTRICT CLERK
                                                                                            I




                                                                                                  BEMR COUNTY
                                                                                            -




                          (The Clerk of the convicting court will    fill   this line in:

                                                                                                       MR        A "=05
                                                                                        .




                                                                                                1315        IT
                     IN THE COURT or CRIMINAL APPEALS                          OF TEXAS                 BEPUTY

                 APPLICATION FOR A WRIT OF HABEAS CORPUS i3Y__.____,._______
               SEEIGNG RELIEF FROM FINAL FELONY CONVICTION
              UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME:       Lynwyatt Allen

DATE OF BIRTH:             01/25/1991

PLACE OF CONFINEMENT:                   Dominguez   State Jail   6535 Cagnon Rd, San Antonio,               TX
TDCJ-CID NUMBER: _01935579                                  SID NUMBER: 1001292

(1)    This application concerns (check        all that   apply):

       xx    a conviction                          N/A      parole

       xx    a sentence                            N/A      mandatory supervision

       N/A time credit                             N/A      out-of—time appeal or petition for
                                                            discretionary review



(2)    What district court entered     the judgment of the conviction you want                  relief from?
       (Include the court    number and county.)

        186"‘ District Court, Bexar County



(3)    What was the case number in the trial court?

       Cause No: 2013CR5727

(4)    What was the name of the trial judge?

       Teresa Herr




Effective: Januagg   1,   2014                       1
(5)    Were you       represented by counsel?     If yes, provide the attorney's   name:

       Paul   J.   Goeke,   SBN 08059250


(6)    What was the date that the judgment was entered?

       06/06/2013



(7)    For what offense were you convicted and what was the sentence?


       Intoxication assault 10 yrs


(3)    If you  were sentenced on more than one count of an indictment in the same court at
       the   same time, what counts were you convicted of and what was the sentence in each
       count?




(9)    What was the plea you entered? (Check one.)
                    guilty-open plea            _xx_    guilty—plea bargain
                    not guilty



                     nolo contemlere/no contest

       If you entered different pleas to counts in a multi-count indictment, please explain:




(10)   What kind of trial did you have?
             NA no jury                      NA      jury for guilt and punishment
                                              NA      jury for guilt, judge for punishment
(11)   Did you      testify at trial?      If yes, at what phase of the trial did   you   testify?

       NA
(12)   Did you appeal from the judgment of conviction?

       __    yes                                          XX   110




       If you did appeal, answer the following questions:

       (A)   What court of appeals did you            appeal to?     NA
       (B)   What was the case number?                 NA
       (C)   Were you represented by counsel on appeal? If yes, provide the attorney's
             name:

                                                     NA
       (D)   What was the decision and the date of the decision? NA

(13)   Did you      file   a petition for discretionary review in the     Court of Criminal Appeals?

       NA     yes                                    NA no

       If you did     file   a petition for discretionary review, answer the following questions:

       (A)   What was the case number?               NA
       (B)   What was the decision and the date of the decision?               NA

(14)   Have you   previously filed an application for a writ of habeas corpus under Article
       11.07 of the Texas Code of Criminal Procedure challenging this conviction?

       __ yes                                       _xx_       no

       If you   answered       yes,   answer the following questions:

       (A)   What was the Court of Criminal Appeals’ writ number?
        (B)     What was the decision and the date of the decision?

        (C) Please identify the reason that the current claims were not presented and could
            not have been presented on your previous application.




(15)   Do you currently have any petition or appeal pending in any other state or federal
       court?

              yes                                     XX___   [10


       If you    answered   yes, please   provide the name of the court and the case number:




(16)   If you are presenting a claim for time credit, have you exhausted your administrative
       remedies by presenting your claim to the time credit resolution system of the Texas
       Department of Criminal Justice? (This requirement applies to any ﬁnal felony
       conviction, including state jail felonies)

       __ yes                                    XX     [10


       If you   answered yes, answer the following questions:

       (A)    What date did you    present the claim?

       (B) Did you receive a decision and,        if yes,     what was the date of the decision?




       If you   answered no, please explain why you have not submitted your claim:
(17)   Beginning on page 6, state concisely every legal ground for your claim that you are
       being unlawfully restrained, and then brieﬂy summarize the facts supporting each
       ground. You must present each ground on the form application and a brief summary
       of the facts. Ifyour grounds and briefsummary of thefacts have not been presented on
       the form application, the Court will not consider your grounds.
       If you have more than four grounds, use pages 14 and 15 of the form, which you may
       copy as many times as needed to give you a separate page for each ground, with each
       ground numbered in sequence. The recitation of the facts supporting each ground
       must be no longer than the two pages provided for the ground in the form.

       You may include with the form a memorandum        of law if you want to present legal
       authorities, but theCourt will not consider grounds for relief set out in a
       memorandum of law that were not raised on the form. The citations and argument
       must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
       and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
       are challenging the validity of your conviction, please include a summary of the facts
       pertaining to your offense and trial in your memorandum.
GROUND ONE:
Ineffective assistance      of counsel




FACTS SUPPORTING GROUND ONE:
The   attorney for Mr. Lynwyatt Allen           (Defendant) pressured him into a plea.     He was not
prepared to go to trial.




Just before   trial   a plea bargain   was presented according to the following terms:



An Application for deferred adjudication and probation could be made and a               l5 year cap.   The


Attorney for the Defendant represented that no ﬁnding of a deadly weapon would be made and


That the Defendant would receive deferred adjudication because he was               “eligible”.   The


Defendant was actively mi-led by his attorney as          to his application for probation being



Granted as well as      in the   matter of no deadly weapon ﬁnding being made. If the attorney had



properly advised the defendant that he might not receive deferred adjudication he would not



have entered a no—contest        plea. If the defenda.nt’s attorney   had told the defendant that a deadly


weapon ﬁnding would be made he would not have entered his plea. I was speciﬁcally told there


would be no ﬁnding of a deadly weapon
GROUND TWO:




FACTS SUPPORTING GROUND TWO:
                          N \A
M /4
GROUND THREE:
                            .«H/‘«
                            1    \'




FACTS SUPPORTING GROUND THREE:
                                 I\J\A«
                                      I
                                 [
GROUND FOUR:




FACTS SUPPORTING GROUND FOUR:
     N1   ?




13
GROUND:

                      IMA
FACTS SUPPORTING GROUND:
                           MR




                                14
     N UL




I5
    WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
       RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
                                                                   VERIFICATION
              This application must be veriﬁed or it will be dismissed for non-compliance. For
veriﬁcation purposes, an applicant is a person ﬁling the application on his or her own behalf. A
petitioner is a person ﬁling the application on behalf of an applicant, for example, an app1icant=s
attorney. An inmate is a person who is in custody.

             The inmate applicant must sign either the AOath Before a Notary Public@ before a
notary public or the Alnmate=s Declaration@ without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and
then complete APetitioner=s lnforrnation.@ A non—inmate applicant must sign the AOath Before a
Notary Public@ before a notary public unless he is represented by a licensed attorney, in which
case the attorney                may Sign the verification as petitioner.

               A non—inmate non—attomey petitioner must sign the AOath Before a Notary Public@
before a notary public and must also complete APetitioner=s Information.@ An inmate petitioner
must sign either the AOath Before a Notary Public@ before a notary public or the AInmate=s
Declaration@ without a notary public and must also complete the appropriate APetitioner=s
Information.@

               OATH BEFORE A NOTARY PUBLIC
               STATE OF TEXAS


                                                                   W
                                                                                            ~
               COUNTY OPE;
                                                  E
                                                     }_Q_I;K


                     #45114 (,fL                         being duly sworn, under oath says: AI am
                                                            ,.—.               ,

the applicant / u         (circle one) in this action and know the contents of the above application
                                   o
                                        '



for a writ of habeas corpus and, according to my belief, the facts stated in the plication are true.@
                                                                                                       ~
                                                                              Signatur of                                           one)


SUBSCRIBED AND SWORN TO BEFORE ME THIS                                                  “DAY OF ESQVC/l\                   20       .-ST.‘




           ~
                                                                                                                       ,        [
                                                                                   1




           ~~
            "'~’.,$’,‘..{\‘-*‘
                                  moum ALBERIO TORANZO.
                                   Notary Public, Stove of lexos
                                       My Commission Expires
                                            June 17. 2018
                                                                   JR.
                                                                                        ‘   ”
                                                                                       Slgnature of
                                                                                                ’

                                                                                                      Otary
                                                                                                               ’
                                                                                                              P Bhc
                                                                                                                   ‘




                                                                         16
        PETITIONER=S INFORMATION
        Petitioner=s printed name:        My      ,J A)      L114          EC \¢Q/
        State bar number, if applicable:                              ‘i   3   6‘


        Address:     i   S         TFWJ      *5         3+           4*‘
                                                                           337
                    S»!                                  \><               79205

        Telephongf1.9’)          226" 35 0        L7’



        Fax:
               (Z//9,)           Z26 P #501
        INMATE=S DECLARATION

       I,                                                ,   am   the applicant / petitioner (circle one)      and

being presently incarcerated in                                                     ,   declare under penalty of

perjury that, according to   my belief, the facts stated in the above application are true and correct.

                                                              Signed on                                   ,   20



                                                             Signature of Applicant       /   Petitioner (circle one)




                                                        17
Exhibit   C
                                                                                             Ff.l.-AE§t.'=!.
                                                                                                                         «

                                                                                                               .   A
                                                                                                                             .




                          (The Clerk ofthe convicting court will ﬁll this line in.)     ‘min ceuntrv
                                                                                      INS MAR ‘I
                                                                                                    'l
                                                                                                           A       ll:       05
                     IN THE      COURT or CRIMINAL APPEALS or TEXAS                      .



                                                                                             DEPUTY
                 APPLICATION FOR A WRIT OF HABEAS CORPUS
               SEEKING RELIEF FROM FINAL FELONY CONVICTION
              UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME:       Lynwyatt Allen

DATE OF BIRTH:             01/25/1991

PLACE OF CONFINEMENT:                   Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX

TDCJ-CID NUMBER: _01935579                                   SID NUMBER: 1001292

(1)    This application concerns (check         all that   apply):

       xx    a conviction                         N/A        parole

       xx    a sentence                           N/A        mandatory supervision

       N/A time credit                            N/A        out-of-time appeal or petition fo
                                                             discretionary review              -




(2)    What district court entered the judgment of the conviction you want relief from?
       (Include the court     number and county.)

       186“ District Court, Bexar County


(3)    What was the case number in the trial court?

       Cause No: 20 I BCR5726

(4)    What was the name of the trial judge?

       Teresa Herr




Effective: January   1,   2014                        1
(5)     Were you represented by counsel?         If yes, provide the attorney's   name:

       Pau.l J.   Gocke,   SBN 08059250


(5)    What was the date that the judgment was entered?

       06/06/2013



(7)    For what offense were you convicted and what was the sentence?


       Intoxication assault 10 yrs


(8)    If you  were sentenced on more than one count of an indictment in the same court at
       the   same time, what counts were you convicted of and what was the sentence in each
       count?




(9)    What was the plea you entered? (Check one.)

             __ guilty-open plea                       guilty-plea bargain
             _
                                             _xx__
                   not guilty



                    nolo contemiere/no contest

       If you entered different pleas to counts in a multi-count indictment, please explain:




(10)   What kind of trial did you have?
             NA no jury                     NA      jury for guilt and punishment
                                             NA      jury for guilt, judge for punishment
 (11)    Did you     testify at trial?   If yes, at what phase of the trial did   you   testify?

        NA
(12)    Did you appeal from the judgment of conviction?

        _     yes                                       xx no


        If you did appeal, answer the following questions:

        (A)   What court of appeals did you appeal to? NA

        (B)   What was the case number?              NA
        (C)   Were you represented by counsel on appeal? If yes, provide the attorney's
              name:

                                                   NA
        (D)   What was the decision and the date of the decision? NA

(13)    Did you      file   a petition for discretionary review in the Court of Criminal Appeals?

        NA     yes                                 NA no

        If you did ﬁle a petition for discretionary review, answer the following questions:

        (A)   What was the case number?           NA
        (B)   What was the decision and the date of the decision? NA

(14)    Have you previously ﬁled an application for a writ of habeas corpus under Article
        11.07 of the Texas Code of Criminal Procedure challenging this conviction?

        _ yes                                     _xx_     no

        If you answered yes, answer the following questions:

        (A)   What was the Court of Criminal Appeals’ writ number?
        (B)     What was the decision and the date of the decision?

        (C) Please identify the reason that the current claims were not presented and could
            not have been presented on your previous application.




(15)   Do you currently have any petition or appeal pending in any other state or federal
       court?

              yes                                   xx_ no

       If you    answered yes, please provide the name of the court and the case number:




(16)   If you are presenting a claim for time credit, have you exhausted your administrative
       remedies by presenting your claim to the time credit resolution system of the Texas
       Department of Criminal Justice? (This requirement applies to any final felony
       conviction, including state jail felonies)

              yes                                xx no

       If you   answered    yes,   answer the following questions:

       (A)    What date did you present the claim?
       (B) Did      you receive a decision and, if yes, what was the date of the decision?




       If you answered no, please explain       why you have not submitted your claim:
(17)   Beginning on page 6, state concisely every legal ground for your claim that you are
       being unlawfully restrained, and then brieﬂy summarize the facts supporting each
       ground. You must present each ground on the form application and a brief summary
       of the facts. Ifyour grounds and briefsummary of thefacts have not been presented on
       the form application, the Court will not consider your grounds.
       If you have more than four grounds, use pages 14 and 15 of the form, which you may
       copy as many times as needed to give you a separate page for each ground, with each
       ground numbered in sequence. The recitation of the facts supporting each ground
       must be no longer than the two pages provided for the ground in the form.

       You may include with the form a memorandum of law if you want to present legal
       authorities, but the   Court will not consider grounds for relief set out in a
       memorandum of law that were not raised on the form. The citations and argument
       must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
       and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
       are challenging the validity of your conviction, please include a summary of the facts
       pertaining to your offense and trial in your memorandum.
 GROUND ONE:
 Ineffective assistance     of counsel




 FACTS SUPPORTING GROUND ONE:
 The   attorney for Mr. Lynwyatt Allen        (Defendant) pressured him into a plea.   He was not
 prepared to go to trial.




Just before   trial   a plea bargain was presented according to the following terms:




An Application for deferred adjudication and probation could be made and a 15 year cap. The

Attorney for the Defendant represented that no ﬁnding of a deadly weapon would be made and


That the Defendant would receive deferred adjudication because he was “eligible”. The


Defendant was actively mi—led by his attorney as      to his application for probation being



Granted as well as in the matter of no deadly weapon ﬁnding being made. If the attorney had


properly advised the defendant that he might not receive deferred adjudication he would not



have entered a no-contest plea. If the defendant’s attorney had told the defendant that a deadly


weapon ﬁnding would be made he would not have entered his plea. I was speciﬁcally told there


would be no ﬁnding of a deadly weapon
GROUND TWO:




FACTS SUPPORTING GROUND TWO:
                          W Vi
GROUND THREE:
                            M/‘«



FACTS SUPPORTING GROUND THREE:
N //L
GROUND FOUR:




FACTS SUPPORTING GROUND FOUR:
     N:   P




13
GROUND:

                      4MA
FACTS SUPPORTING GROUND:
                           M/x
15
     WHEREF ORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
        RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDIN G.
                                                          VERIFICATION
              This application must be veriﬁed or it will be dismissed for non—compliance. For
verification purposes, an applicant is a person ﬁling the application on his or her own behalf.                           A
petitioner is a person ﬁling the application on behalf of an applicant, for example, an applicant=s
attorney.   An inmate is a person who is in custody.
              The inmate applicant must sign either the AOath Before a Notary Public@ before a
nota.ry public or the AInmate=s Declaratione without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and
then complete APetitioner=s Information. @ A non~inmate applicant must sign the AOath Before a
Notary Public@ before a notary public unless he is represented by a licensed attorney, in which
case the attorney may sign the veriﬁcation as petitioner.

             A non-inmate non-attorney petitioner must sign the AOath Before a Notary Public@
before a notary public and must also complete APetitioner=s Information.@ An inmate petitioner
must sign either the AOath Before a Notary Public@ before a notary public or the Alnmate=s
Declaratione without a notary public and must also complete the appropriate APetitioner=s
Information.@

             OATH BEFORE A NOTARY PUBLIC
             STATE OF TEXAS
             COUNTY OF                ECEC
              iéq Al/d -4
the app]-ieant /          (circle
                                  E        Q
                                        one)
                                      in this
                                             Q                       ,being duly sworn, under oath says: Al am
                                                            action and know the contents of the above application
for a writ of habeas corpus and, according to                my belief, the facts stated in the application are true.@
                                                                                            -




                                                                    Sigzéﬁe of                                       one)




                                                                                        W
SUBSCRIBED AND SWORN TO BEFORE ME THIS


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                  ' 415"’:   JOAQUIN ALBERTO IORANZO.
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                                                                                            ure   ot   my Pu
        PETITIONER=S INFORMATION
        Petitioner=s printed name:       Kﬂ            Cf!"          E4 KC/
        State bar   number,   if applicable:   -ZE-‘:0       i   S    1
                                                                          3
        Address:                  E    ‘T.{~"’J\$                          7* 7?:
                     éw Mme,                               “TX 7327

        TeIepho£7/ ”\)                            "        [+300
        Fax:
                                      126          ~

       INMATE=S DECLARATION

       I9                                              ,   am the applicant / petitioner (circle one) and
being presently incarcerated in                                                 ,   declare under penalty   of

perjury that, according to    my belief, the facts stated in the above application are true and correct.

                                                            Signed on                              ,   20




                                                            Signature of Applicant / Petitioner   (circle   one)




                                                      17
Exhibit   D
                                              NO. 20l3CR5726-W1
                                                2013CR5727—W1
                                                20] 3CR2728-W]

 EX PARTE                                                 §                IN   THE DISTRICT COURT
                                                          §                186” JUDICIAL DISTRICT
 LYNWYATT ALLEN                                           §                BEXAR COUNTY, TEXAS


                          ORDER ON APPLICATION FOR POST CONVICTION WRIT
 The Court having concluded that the allegations of ineffective assistance of counsel
                                                                                       contained in an
 application for a post-conviction writ of habeas corpus create a necessity
                                                                            for a hearing, but that the
 matter is capable ofresolution by means of affidavits, it is ORDERED,
                                                                            as follows:

 That the Clerk forward a copy ofthe writ application and its attachments          to   Paul Joseph Goeke,
 115 E. Travis St., Suite 1145, San Antonio, Texas 78205.

        l.   That, on or before May 07, 2015, Paul Goekc file with this
                                                                          court his written       afiidavit
             conﬁrming or denying the allegations of ineffective assistance.

             a.    Please respond to Applicanfs allegations regarding the
                                                                                  claims of ineffective
                   assistance of counsel, including, but not limited to, the following:


                  (I)   Counsel pressured Applicant into taking a plea because he was not prepared
                                                                                                   to go
                        to trial.
                  (2) Applicant was misled by Counsel as to his application for probation
                                                                                              being
                      granted as well as in the matter of no deadly weapon ﬁnding being
                                                                                        made.
                  (3) Had Counsel properly advised the Applicant that he might not
                                                                                   receive deferred
                      adjudication he would not have entered a no—c0ntest plea.
                  (4) Counsel speciﬁcally told Applicant that there would be no
                                                                                  ﬁnding of deadly
                        weapon.

                  After you have reviewed the Ap_plicant’s writ application,
                                                                             please address any other
                  issues raised by Applicant not speciﬁcally listed
                                                                      above and of which you have
                  knowledge or information.                                                              7




                  If there is
                            any additional information not present before the court at this time that is
                  relevant to the court’s understanding of this matter,
                                                                           please include any such
                  information to clarify this issue.

Simultaneously, Paul       Goeke    shall deliver the affidavit   and summation to Attorney for
 Applicant Kenneth Eric Baker, 115 E. Travis, Suite 333, San
                                                                    Antonio, Texas 78205.
 After these matters have occurred, this Court will forward
                                                             its Order including its ﬁndings              to the
 Court of Criminal Appeals for its disposition of the matter.

 information contained in an affidavit ﬁled pursuant to this order
                                                                     does not represent a violation of
 the attorney—client privilege. See TEX. R. EVID.
                                                  503(cl)(3)(stati.ng that communications relevant
 to issues concerning breach of counsel’s
                                           duty to his client represents an exception to the rule
 governing attorney~client privilege).

 Failure to abide by this order    is   subject to a charge of contempt.


 SIGNED and ENTERED        this“   ~                     ‘,1
                                                ;’;f/1'1/<5‘
                                        day of '-/M!”
                                                                5
                                                               '5
                                                                    \
                                                                        ,
                                                                               /‘
                                                                               ~
                                                                            20:1




                                                                            ~
                                           ~        ’JE’F:;FE}iSON
                                              W Judge
                                                     exar County, Texas
                                                                                    MOORE
                                                                        186"‘ Judicial District   Court
                                              g,r




cc:
Attorney for Applicant
Kenneth Eric Baker
115 E. Travis, Suite 333
San Antonio, Texas 78205.
Exhibit   E
  THE STATE OF TEXAS
  COUNTY OF BEXAR
                                                       ¢»O'3€03€O7




            BEFORE ME, the undersigned authority, on this day personally Paul J. Goeke, who,
  being duly sworn, deposed as follows:

           Undersigned counsel has been directed by the                  District    Court to provide an

 affidavit in response to a Pro    Se Writ of Habeas Corpus                 filed   by Lynwyatt Allen.

           In response to this Honorable Court's order of                    23rd day of        Mag 2015 please
 ﬁnd the following:                                                     [

 Objection: This Honorable Court’s order violates the attorney-client privilege. In

 anticipation   of this objection, the Court observes in the order                  that this   Writ of Habeas

 Corpus alleges a breach of an attomey’s duty to a client and an exception                         to the privilege

 is   created by Texas Rules of Evidence 503(§)        (3).          With the objection anticipatorily

 overruled, please   ﬁnd the following:

           In the following affidavit, undersigned counsel does not use the                      more formal
construct of describing the afﬁant as “undersigned counsel”, but adopts the less                         awkward
colloquial use of the first person.


1(a)(1):   The Applicant alleges       that “Counsel pressured Applicant into taking a plea

because he was not prepared to go to         trial”.


Response     to 1(a)(1):   Not True.

          Applicant was in no way pressured into taking a plea.

          The original plea bargain    offer to Applicant            had been a ﬂat ﬁfteen (15) year

sentence on the intoxication manslaughter indictment, and a ten (10) year sentence on

each of the intoxication assault indictments with an affirmative finding of the use of a
      deadly weapon,            all to   run concurrently. This offer did not change until immediately

      before    trial.   The prosecutor had changed from Assistant District Attorney (Mr.) David

      Henderson to Assistant              District Attorney (Mr.) Eric Fuchs. It       was Mr. Fuchs who         relented

     on the day of trial by offering a 15 year "cap" without requiring the Court to make a

     ﬁnding of the use of a deadly weapon, thus allowing Applicant to apply                         for adjudicated

     (regular)     community         supervision. This offer        made possible a sentence of less than ﬁfteen

     years without an affirmative ﬁnding leading to earlier parole eligibility.                     The   likelihood of

     adjudicated         community supervision being granted was described to Applicant as being

     extremely remote.

               I was completely prepared ‘to go                to jury trial.

               I   had retained Dr. Michael Arambula, a highly qualiﬁed forensic psychiatrist, who

     subsequently testified at Applicant's sentencing hearing in much the same manner as he
                                                                                                                 A




    would have testified            in a jury    trial.   In addition to being a forensic psychiatrist, Dr.

    Arambula has an advanced post doctorate in Pharmacy                         (referred to as a   Pharm D.) This
    unique combination makes Dr. Ararnbula among the most highly qualiﬁed to testify with

    regard to psychopharmacology, the study of effects of alcohol and other chemicals on the
                            A




    mind and body.

               The   assertion that        I   was not prepared for trial is demonstrably ludicrous,        as

    evidenced by the testimony of this expert witness and several character witnesses from

    out of town during the sentencing hearing that resulted from his voluntary plea. These are

_
    the very witnesses           who would have testified to a jury. Based upon the unraveling of the

    initial   defense and the changing of the plea offer to a “cap” with the option of the court
not entering an affirmative 3(g) ﬁnding, Applicant               made an intelligent and fully informed

decision to waive a jury and enter a plea bargain agreement.

                       Each of the very witnesses   that   I   would have used   in his jury trial testified


in his sentencing hearing.        They would not have done so were I not prepared for trial. He

simply wisely decided to limit his exposure, as the truth of his behavior became

unavoidable.

1(a)(2):   Applicant alleges that “Applicant was misled by Counsel as to his

application for probation being granted as well as in the matter of no deadly

weapon ﬁnding being made”.

Response      to 1(a)(2):    Not True.

           This   is   a complete and utter falsehood.     The Applicant was always informed that

the possibility of probation from the court was extremely remote. Applicant                  was advised

that the   main beneﬁt of this plea bargain was that the sentences were certain to run

concurrently and that there was a possibility that the Hon. Judge Herr would be

somewhat solomonic with regard to           the “cap” of ﬁfteen (15) years        and the   full   range of

punishment, each offense having a          minimum sentence of two (2) years. Unfortunately for

Applicant, the prosecution successfully countered this possibility by literally "packing the

courtroom" with ﬁiends and family of the decedent and complainants.

           One complainant had been extremely disﬁgured in the collision, a fact which the

prosecution underlined by displaying a “before” photo showing that he had previously

been “movie        star”   handsome. His live testimony then made his unfortunate disﬁgurement

obvious.
           This case was unique in my experience in that the head-on collision leading to the

death and injuries was actually captured on the dashboard camera of a patrol car. The

police officer      was responding to reports of Applicant’s        vehicle traveling   on the wrong

side of the      highway   for a long distance, almost striking other drivers       who   then phoned

911.

           The ofﬁcer testiﬁed that he was rushing to the scene to         intercept Applicant by

"bumping" him off the road before such a tragedy as this could occur. This unique

situation led to the actual capture of the violent head—on collision          between the victims’

and Applicant’s trucks on that         officer's   "dash cam".

           I   relate this event in order to explain the   environment in which Judge Herr was

required to pronounce sentence.           When the video of the collision was played in open
court, a relative     of one of the victims ran from the courtroom, loudly retching; a dramatic

occurrence which dominated the subsequent news coverage. This, combined with

Applicant's poor testimonial performance and other aspects of this case led to the

growing inevitability of the maximum sentence being pronounced                 in   open court in the

presence of the       many friends and family of the dead and disﬁgured victims.

1(a)(3):       Applicant alleges that “had Counsel properly advised the Applicant that he

might not receive deferred adjudication he would not have entered a no-contest

plea”.

Response        to 1(a)(3):   Not True.

         Again, a complete and utter falsehood. Since            my licensure in 1983, deferred
adjudication has not been available even for simple              DWI and with the subsequent
creation of the Penal         Code offenses of Intoxication Assault and Intoxication
Manslaughter in the   73"’ legislature (effective       September      1,   1994), deferred adjudication


has never been available for these offenses as well. These matters were explained to

Applicant and his family at length and in         detail in     response to their   initial inquiries



regarding the potential for plea bargaining and sentencing from the beginning of my

representation.

        Applicant was      initially   (and throughout my representation) completely and clearly

informed of the sentencing realities pursuant to Texas              Law and that he could not receive
                                                                              the use of a
deferred adjudication for these offenses under any circumstance and that with

deadly weapon being formally alleged, he could only receive probation (adjudicated

community supervision) from a jury             after a trial.


      topic of deferred adjudication never arose in conjunction with the discussion
                                                                                    of the
The

plea bargain offer.

1(a)(4):   Applicant alleges “Counsel speciﬁcally told Applicant that there would be

no ﬁnding of deadly weapon”.

Response to     1(a)(4):   Not True. Applicant had always been told that the trial court could

not grant probation in the presence of an affirmative ﬁnding of the use
                                                                        of a deadly


weapon.

           Again, a complete and        utter falsehood.   The Applicant was advised that there was

                                                                     in a judgment
a possibility that Judge Herr might not enter a deadly weapon ﬁnding

 sentencing him to prison.      He was advised that, under the right circumstances, Judge Herr
                                                                                    "splitting the baby",
 might reward him for having waived a jury and entering a plea by

 with a sentence less than the         maximum and/or by possibly not entering a deadly weapon

 ﬁnding in the judgment.
          It   should be noted that up    until the   time of impending jury selection, the offer had

 been a ﬂat 15 years to do, (not a cap) with an affirmative ﬁnding of the use of a deadly

 weapon. In a jury trial, Applicant was faced with the possibility of being denied probation

by the jury and then facing with the possibility of Judge Herr ordering any jury sentences

to   be run consecutively.    It is   because the plea changed to a "cap" of 15 years concurrent

without the requirement         that the court enter a deadly          weapon ﬁnding and the resulting

possibility     of a sentence under the cap and/or without a deadly weapon ﬁnding,                  that

Applicant elected to enter into a plea bargain agreement. Again, the possibility of

community supervision from the            court   was always described to Applicant          as being

extremely remote.

Pursuant to      this   Honorable Court's Order at           1(b) please find the following: After

you have reviewed Applicant’s writ application, please address any other issues

raised by Applicant not speciﬁcally listed above and of which you have knowledge

or information:

Response to      1(b):   Not Applicable

Pursuant to      this   Honorable Court's Order at           1(c) please find the following:

This Honorable Court instructs that               if there is   any additional information not

present before the court at this time that            is   relevant to the courts understanding of

this matter, please include       any such information              to clarify this   matter, Pursuant   to


this order, please find the following:


        Placing this case in full context will help the court to understand the unique
                                                                A




dynamics involved leading up          to Applicant’s plea.
                   I   was a zealous and committed advocate for Applicant from the moment his father

     Bob Allen first appeared in my office until the time that I was unforrned that Applicant

     had    filed a     gm   s_e__   writ of habeas corpus challenging    my effectiveness.
                  Mr. Allen came          to   me concerned that his son (Applicant) would be irrevocably
     injured were he to be              moved to general population in the Bexar County Jail. Applicant

    had received a cervical               fracture in the collision   which led to   his arrest. This fracture

    placed him at risk for spinal cord injury in the violent atmosphere of Bexar County                      Jail


    general population.

               Despite the fact that Mr. Allen could not pay me, I put aside other work and

    sought Applicant’s release from custody on personal recognizance.                       I   was successful   in

    this regard.


               I   told   Mr. Allen       at the   time that Applicant’s only hope for probation was ﬁ'om a

    jury, given the death              and severity of injuries he had caused. The plan from the outset was

    trial   by jury.

              Mr. Allen described his son as young and inexperienced, not given to drinking

    alcohol and the type of drinker                 who would not even ﬁnish a beer. Mr. Allen described

    how his son had become romantically involved with an older woman and that this

    involvement lead to an episode of drinking with her friends during which he had become

                         When he was left behind by the group, he had drunkenly found his way to his
'


    intoxicated.

    truck, driven off and caused the fatal accident.


              I    determined to present the mitigating aspects of this scenario to a jury hoping                 for


    probation under the circumstances. In this regard, I hired Dr. Michael Arambula, a

    forensic psychiatrist and              Pharm D, making him authoritative         in psychopharmacology (the
 effect   of drugs and alcohol on the mind).             I    also planned to present individuals    who knew
 Applicant as an inexperienced non-drinker-whose naiveté would be viewed as mitigating

 by the jury.

              As the case progressed however, it became               apparent that Mr. Allen’s version of

 the event      was a complete ﬁction.

              A picture emerged that Applicant had in fact started drinking heavily in this new
 relationship and          had probably embarrassed           his girlfriend with his   drunken behavior on

the night in question.                When she sought to have him stay behind to “sleep it off’, he
experienced this as an humiliating abandonment by his                     “first love”,   became   suicidal   and

tried to      “end   it   all”   by   intentionally driving   down the wrong side of the highway without

regard to the innocent lives he might effect thereby.

              The   initial   medical records brought to        me by Applicant’s father were consistent
with the false story he gave                me about Applicant’s naiveté with alcohol. As trial

approached,          I   obtained      more complete records     in discovery that revealed Applicant’s


growing history of alcohol abuse, records                 in which he admitted periodic binge drinking

leading up to the offense in question and a developing alcoholism consistent with his

family history and one which he had been desperate to conceal from them.

              Applica.nt’s       mother is Native American. Her brother's alcohol addiction led to

multiple       DWI arrests, imprisonment and eventual death from acute alcohol poisoning. I
expressed        my concerns that (1) this had been withheld from me                (2)   with the well-known

genetic basis for alcoholism and (3)                how incompatible this was with his defense of
na‘1’vete'.   As trial approached and l inquired about the witnesses with whom he was
     drinking on the night of the accident,                 it   became   clear that their presence    would further

     undermine his claims of inexperience and seal                       his fate.

                I    was forced to adapt my         trial   strategy to conceal these truths        from the

     prosecution.        As    it   was, Applicant and I were careful to structure his testimony to avoid

     any mention of his former girlfriend's name, a commercial photographer with a webpage

     who    could easily be found on the Internet by a quick thinking prosecutor.                       It   was evident

     that   had the prosecution made contact,                it   would have led to disastrous results.

                                                    The Sentencing Hearing

                While I was prepared to present mitigation                   to   Judge Hen‘ in the sentencing

    hearing,     I   had not anticipated how effectively the prosecution would counter this by

    literally   packing the courtroom with the friends and family of the victims. This seemed                             to


    place sociopolitical pressure on the sentencing judgesl informed Applicant that I might

    be able counter           this   during the 30-day period of continuing jurisdiction.

               It is   true that     I   did not expect or predict that Judge Herr            would give Applicant no

    leniency at        all   under the terms of the plea bargain agreement, sentencing him to the

    maximum allowed under the "cap". This likelihood only developed during the sentencing

    hearing.    I    believe that the Honorable Judge Herr may have experienced                       some political

    "pressure"        from the packed courtroom and the above-described events. Subsequent
'




    developments lend credence                 to this theory:     Judge Herr      later   did manifest signiﬁcant

    leniency (when not in open court) by actually granting Applicant signiﬁcant credit for

    time served while on electronic monitoring, as though Applicant had served that time                             in


    the county jail          when in fact he had not,        credit to    which he was simply not entitled under

    the law.
             Such a grant of leniency was speciﬁcally addressed and found to be unauthorized

 in   Tagorda      vs.   State    977 SW2d 632         (Ct.   App.— Ft. Worth) (1998). This leniency was thus

 quietly expressed in a subsequent amended judgment modifying (in private) the original

judgment entered by Judge Herr and thus was not announced                               in   open court and not

readily apparent to the aforementioned                    crowd of family and friends. I had hoped that

Judge Herr would also                elect to refrain    from making an affirmative 3(g) ﬁnding                    in the

judgment. The            latter   was not to    be,   however.

         I   believe the resulting            amended judgment legitimizes             my belief that the Hon.
Judge Herr was uncharacteristically harsh in her open court actions, something that I

could not have reasonably predicted prior to the actual hearing.                             I   advised Applicant of my

growing concerns            at    counsel table during the hearing.           I   also advised        him of the trial

court’s continuing jurisdiction and control over the contents of the actual judgment as


opposed to her pronouncements                   in    open court. Her maximum sentence of 15,10, and l0

years respectively with an affirmative ﬁnding of the use of a deadly                                  weapon were all

pronounced in open                court.   Her leniency was expressed privately                  in   an amended

judgment.      I   had approached Judge Herr in open court several days                           after the sentencing


hearing and asked her to consider these alternatives. The prosecutor in attendance at the

time did not       comment on the request.

         In this afﬁdavit,           I   have expressly described each of Applicant's assertions as

complete and utter falsehoods for a reason:                     it is   because they are complete and utter

falsehoods and because he knows that they are.

         I   was a zealous advocate for Applicant before, during and after his trial zmd I am

therefore    somewhat mystiﬁed by the completely baseless claim of Ineffective Assistance




                                                                                                                            10
    of Counsel, particularly because Applicant was advised of a legitimate avenue for

    seeking a new     trial.


            After his sentencing, Applicant and his family were repeatedly informed of the

    thirty (30)   day motion for new trial jurisdiction and were urged by              me to contact
    experienced Board Certiﬁed Criminal                 Law Specialists   in order to attempt to set aside the


resulting sentence.        I   received a number of calls from qualiﬁed lawyers and spoke with

several experienced criminal defense lawyers about areas of possible post-conviction

relief and    my willingness to assist in this regard.
            For example,       this   case was extensively litigated in a pretrial motion to suppress

regarding the validity of the warrantless blood draw. That motion was overruled by the

court. It is highly likely that the trial court             was   in error in that regard.   The prosecutor at

the time (Mr. Fuchs)           conﬁded     in   me his concern that my suppression argument was valid
and his fear that the judgment could be overturned on appeal whenl structured the plea in

such a way as        to preserve Applicant's right to appeal rulings            on pretrial motions. In

response to       my having structured the plea to appeal the motion to suppress, the
prosecutor supplemented the stipulations in a way he believed would defeat such an

appeal.‘ That       avenue was not pursued then, due to the pendency of the above described

credit for time served.         However,        it   should have been raised    in this writ   of Habeas Corpus

by seeking an out of time appeal                in that regard, as that issue   would in my opinion have a

high likelihood of success, certainly higher than that of a patently absurd claim of


1
  in addition to the forensic blood draw, the state had hospital records with plasma alcohol concentrations
based on clinical laboratory analysis. The prosecutor supplemented the stipulations with these hospital
records, erroneously believing such supplementation would defeat the appeal of the pretrial motion. It
would not. The case law establishes that, if Applicant's decision to enter a plea bargain agreement was in
any way inﬂuenced by the court's erroneous ruling on the motion to suppress, relief should be forthcoming.
My original trial plan was to challenge the hospital blood draw pursuant to the holding of Bullcoming v.
New Mexico, 131 S.Ct. 2705 (201 1) and the absence of the hospital technician.
                                                                                                                 '




                                                                                                                 ll
    ineffective assistance of counsel.          The Applicant's post-conviction pursuits would have

    been better placed in that regard and why                that has   been abandoned is beyond me except

    fO1‘AppliCant'S acting 2r_o _s_§ and without competent legal advice in this regard.


              I   had previously advised Applicant and his family of the post-conviction strategy

    of seeking an out of time appeal challenging the denial of the motion                     to suppress.   I   had

    explained that Applicant could           file   a motion for   new trial and/or give notice of appeal

    regarding the motion to suppress ruling.             I   also explained that doing so      might draw

    attention to the unauthorized credit for time served                and cause an interested prosecutor to

    challenge this credit.2

             There also remained the possibility of the trial court reconsidering the deadly

    weapon ﬁnding by removing              or omitting   it   in the judgment.     As it developed, the trial

    court   amended the judgment by awarding credit for time served. Judge Herr actually did

this after        her jurisdiction had expired in a manner which could now (and then) be

challenged as invalid. Unfortunately, the affirmative ﬁnding of the use of a deadly

weapon remained. The better strategy for Applicant would have been to employ

experienced counsel and seek an out of time appeal of the motion to suppress through a

post conviction writ of habeas corpus, a strategy which                     is   probably   now foreclosed by the
“one writ rule”.        By   acting    gm _s§ and not following my advice, he has (1) lost a legitimate
challenge to his conviction and (2) threatened the continuing viability of his unauthorized

credit for time served. If the prosecution              now challenges that credit for time sewed, he
will   probably lose         it.   Additionally, he will not be able to challenge the          trial   court’s




2
  I had discussed this dilemma with Applicant during the period of continuingjurisdiction by the trial court.
Because the attorney client relationship became contentious, I reduced part of this advice to writing and
delivered it to Applicant in jail. See Attached Exhibit A.



                                                                                                                   12
erroneous denial of his motion to suppress the warrantless blood draw, thus ruling
                                                                                   out

any further challenge     to his sentence.



         Undersigned counsel will respond further as directed by the court.

         I   declare the foregoing to be true and correct under penalty of perjury.”




                                                                      R)
         "Further afﬁant sayeth not."



                                                         Paul   J’.
                                                                      Goeke



        SWORN AND SUBSCRIBED to before me this
to certify   which witness my hand and seal of office.
                                                           1     5)»

                                                                      day of              2015,




                                                         Notary Public, State of Texasﬂ
                                                         County of Bexar




                                                                                            13
Exhibit F
                                      NO. 2013CR5726-W1
                                            20]3CR572’7~W.l
                                            2013CR5728-‘W1


EX PART                                              §               IN THE DISTRICT COURT

                                                     §               186” JUDICIAL DISTRICT

L-YNWYATT ALLEN                  ‘




                                                     §               BEXAR COUNTY, TEXAS

                                ORDER DESIGNATING ISSUES
       The Court having concluded that controverted, previously unresolved facts which are
material to the legality of Applicant's conﬁnement exist and need to be resolved, there is a
necessity for the suspension of the time limitations enunciated in Article 1 l.O7 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(d) (West
2012).

          Applicant has alleged the following issue which the court ﬁnds requires resolution:

             21.   lneffeetive Assistance of Counsel


          Findings will be forwarded to the Court of Criminal Appeals for its disposition of the
matter.



SIGNED and ENTERED on                iii-    /£17.




                                                               ON MOORE
                                                 Judfgef’.l'86"‘   Judicial District Court
                                                         County, Texas
Exhibit   G
                                                        PAUL   J. GOEKE
                                                          ATTORNEY AT LAW
                                                        MILAM BUILDING, SUITE H45
                                                            I5 E. TRAVIS STREET
                                                            I




                                                SAN Ax-roxro, Texas 73205-1755
                                                                (2 IO)   222-2959
           acme   cermruzo
  CRIMINAL LAW SPECIALIST                                  "W ‘2 '°’ 333'°°53                                   MEMBER COLLEGE OF THE
TEXAS BDARD or LEGAL     s9:ciAI.IzA\'IoN                  RES: (2 IO)    495-SI44                                 STATE BAR OF TEXAS




                                                                          May   20,   2015

           VIA HAND DELIVERY
           Kenneth Baker
           115 E. Travis, Ste. 333
           San Antonio, Texas 78205


           RE:            State of Texas v. LynwyattAIlen,' Cause Nos. 201 3~CR—5 726, 20] 3-CR—5 72 7,
                          201 3-CR-5 728

           Dear        Sir:


                  Enclosed please find one (1) copy of the Affidavit in Response to the pr_o se writ
           of Habeas Corpus to be ﬁled in the above referenced matter. Please excuse the delay in
           sending your copy.

                          Should you have any questions please do not hesitate to contact this             office.


                                                                          Sincerely,

                                                                          Paul J. Goeke
                                                                          Attorney at Law




           Eric.




                                                           OF COUNSEL
  BENNIE E. RAY                                      J. GARY TRICHTER                                 1\<[m:E  MCCOLLUM
  7Io w,   mm smear,
            sun‘:                  c                        2000 smm-4 smear                           CENTRAL EXPRESSWAY. SUITE 304
                                                                                                an is N.
  Ausrm, TEXAS 78701                                  HOUSTON, TEXAS 77002                             DALLAS, TEXAS 75206
I-500-DWI-IDIO    ~   (5:2)   479-7775                          I-eooowl-iolo                         I-BODDWI-IOIO - (EM) 69!-3975
                                                ﬁARV@l’EXASD\NILAW.COM <www.1':xAsuwn.Aw.I:aM
Exhibit   H
                                                                                                                    .lllHillllllllllllllllllllA

                                                         ‘NO. 2013C R5726-W1
                                                             20l3CR5727-W1
                                                             20l3CR5728-W1

           EX PARTE                                                     §                     IN THE DISTRICT       COURT
                                                                        §                     1ss“‘ JUDICIAL DISTRICT

           LYNWYATT ALLEN                                               §                     BEXAR COUNTY, TEXAS
                                                                   ORDER
                   Applicant,      Lynwyatt Allen, has ﬁled a pro se             application for a post-conviction writ       of

           habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure,                        collaterally


           attacking his conviction in cause          number 20l3CR5726; 20l3CR5727; 20l3CR5728. TEX. CODE

           CRIM. PROC.    art. 1   1.07   (West 2012).

                                                           HISTORY OF THE CASE
                   On   or about June 6, 2013, Applicant plead guilty to the offense of intoxication assault.

           Applicant was sentenced to ten (10) years conﬁnement                  in the   Texas Department of Corrections -

           lnstitutional Division. Applicant did not ﬁle             a direct appeal. This application for writ of habeas

           corpus was ﬁled on March           l7,   2015. The District Attorney received a copy of this application on

           March   18, 2015.


                                                      ALLEGATIONS OF APPLICANT
           1.   In App|icant’s sole ground for         relief,   Applicant alleges ineffective assistance of counsel.




                                                                                                           ~
                   0          Speciﬁcally, Applicant alleges that Trial Counsel                                        and

                        represented that no finding of a deadly             weapon would be made and that Applicant

                        would receive deferred adjudication because he was “eligible." Also,               Trial   Counsel

                        misled Applicant to believe that his application for probation was being granted and

                        had   Trial   Counsel informed Applicant that he would not receive probation and               that   a
t-I




fitiiili
                         deadly weapon ﬁnding would be made, he would not have entered a no-contest plea.

                                                      FINDINGS OF FACT
               l.   On   or about June 6, 2013, Applicant plead guilty to the offense of intoxication assault.

                    Applicant was sentenced to ten (10) years conﬁnement in the Texas Department of

                    Corrections — Institutional Division.

               2.   Applicant did not ﬁle a direct appeal.

               3.   The trial court requested and received an affidavit from Applicant’s Trial Counsel, Paul         J.


                    Goeke (Attachment:     Affidavit).   Although the court ﬁnds the affidavit credible, the court

                    takes issue with portions of the affidavit in which the affiant speculates as to the court’s
                                        ems.              ~$____,-_._..___....,             ,
                                                                                               \_ ____‘m
                                                                                                ,.   ...



                    decisions for ce_rt_ain rulings.

                         3.   “The original plea bargain offer to Applicant had been a ﬂat ﬁfteen (15) year
                              sentence on the intoxication manslaughter indictment, and a ten (l0) year sentence
                              on each of the intoxication assault indictments with an affirmative ﬁnding of the
                              use of a deadly weapon, all to run concurrently. This offer did not change until
                              immediately before trial. The prosecutor had changed from Assistant District
                              Attorney (Mr.) David Henderson to Assistant District Attorney (Mr. ) Eric Fuchs.
                              It was Mr. Fuchs who relented on the day of trial by offering a 15 year “cap”

                              without requiring the Court to make ﬁnding of the use of a deadly weapon, thus
                              allowing Applicant to apply for adjudicated (regular) community supervision.
                              This offer made possible a sentence of less than fifteen years without an
                              afﬁnnative ﬁnding leading to earlier parole eligibility. The likelihood of
                              adjudicated community supervision being granted was described to Applicant as
                              being extremely remote. I had retained Dr. Michael Arambula, a highly qualiﬁed
                              forensic psychiatrist, who subsequently testiﬁed at App1icant’s sentencing hearing
                              in much the same manner as he would have testiﬁed in ajury trial. In addition to
                              being a forensic psychiatrist, Dr. Arambula has an advanced post doctorate in
                              Pharmacy (referred to as a Pharm D.) This unique combination makes Dr.
                              Arambula among the most highly qualified to testify with regard to
                              psychopharmacology, the study of effects of alcohol and other chemicals on the
                              mind and body. The assertion that I was not prepared    for trial is demonstrably
\f131|3P1S7S




                              ludicrous, as evidenced by the testimony of this  expert witness and several
                              character witnesses from out of town during the sentencing hearing that resulted
                              from his voluntary plea. These are the very witnesses who would have testiﬁed to
                              ajury. Based upon the unraveling of the initial defense and the changing of the
                              plea offer to a “cap” with the option of the court not entering an affirmative 3(g)

06112015
                 ﬁnding, Applicant made an intelligent and fully informed decision to waive ajury
                 and enter a plea bargain agreement. Each of the very witnesses that would have
                 used in his jury trial testiﬁed in his sentencing hearing. They would not have done
                 so were I not prepared for trial. He simply wisely decided to limit his exposure, as
                 the truth of his behavior became unavoidable. ”
             .   “This is a complete and utter falsehood. The Applicant was always informed that
                 the ossibili of pro Eatron from the court was extremely remote. Applicant was

                 run concurrently and that there was a possibility that the Hon. Judge Herr would
                 be somewhat solomonic with regard to the “cap” of ﬁfteen (15) years and the full
                 range of punishment, each offense having a minimum sentence of two (2) years.
                 Unfortunately for Applicant, the prosecution successfully counters this possibility
                 by literally “packing the courtroom” with friends and family of the decedent and
                 complainants. One complainant had been extremely disﬁgured in the collision, a
                 fact which the prosecution underlined by displaying a “before” photo showing that
                 he had previously been “movie star” handsome. His live testimony then made his
                 unfortunate disﬁgurement obvious. This case was unique in my experience in that
                 the head-on collision leading to the death and injuries was actually captured on the
                 dashboard camera of a patrol car. The police officer was responding to reports of
                 Applicant’s vehicle traveling on the wrong side of the highway for a long
                 distance, almost striking other drivers who them phoned 911. The oﬁicer testiﬁed
                 that he was rushing to the scene to intercept Applicant by “bumping" him off the
                 road before such a tragedy as this could occur. This unique situation led to the
                 actual capture of the violent head-on collision between the victims’ and
                 Applicant's trucks on that ofﬁcer’s “dash cam". I relate this event in order to
                 explain the environment in which Judge Herr was required to pronounce sentence.
                 When the video of the collision was played in open court , a relative of one of the
                 victims ran from the courtroom, loudly retching; a dramatic occurrence which
                 dominated the subsequent news coverage. This, combined with Applicant's poor
                 testimonial performance and other aspects of this case led to the growing
                 inevitability of the maximum sentence being pronounced in open court in the
                 presence of the many friends and family of the dead and disﬁgured victims."

                 a Judication has not ‘been available even or stm e        an W1         su se uent

                 Ma"ﬁslaTIghter'iFthé 73'“ legislature (effective September 1, 1994), deferred
                 adjudication has never been available for these offenses as well. TheTﬁ’atters
                 were explained to Applicant and his family at length and in detail in response to
                 their initial inquires regarding the potential for plea bargaining and sentencing
                 from the beginning of my representation. Applicant was initially (and throughout
V1310-PXS7




                 my representation) completelﬂnd clearly infonned of the sentencing realities
                 pursuant to Texas   Law and that he could not receive deferred adjudication   for
                                          circumstance and that with the use of a deadly weapon
                 being fonnally alleged, he could only receive probation (adjudication community
                 supervision) from a jury after atrial. The topic of deferred adjudication never

@6i12@1S
                                                                                               SEQEIISB




    arose in conjunction with the discussion of the plea bargain offer.”
.   “Not true. Applicant had always been told that the trial court could not grant

    Again, a complete and utter fal§hood. The Ap licant was adviseTcF
    that                                                                         weapon

    right circumstances,   Judge   I-lerr   might reward him   for having   waived ajury and
    entering a plea by “splitting the baby” with a sentence less than the maximum
    and/or by possibly not entering a deadly weapon ﬁnding judgment. It should be
                                                                                               !_.rLSIcl0I£II\




    noted that up until the time of impending jury selection, the offer had been a ﬁat
    l5 years to do (not a cap) with an afﬁnnative ﬁnding of use of a deadly weapon.
    In a jury trial, Applicant was faced with the possibility of being denied probation
    by thejury and then facing with the possibility of Judge Herr ordering any jury
    sentences to be run consecutively. It is because the plea changed to a “cap” of 15
    years concurrent without the requirement that the court enter a deadly weapon
    ﬁnding and the resulting possibility of a sentence under the cap and/or without a
    deadly weapon ﬁnding, that Applicant elected to enter into a plea bargain
    agreement. Again, the possibility of community supervision from the court was
    always described to Applicant as being extremely remote.”
.   “Placing this case in full context will help the court understand the unique
    dynamics involved leading up to Applicant’s plea. I was a zealous and committed
    advocate for Applicant from the moment his father Bob Allen ﬁrst appeared in my
    office until the time that I was unforrned (sic) that Applicant had ﬁled a pro se
    writ of habeas corpus challenging my effectiveness. Mr. Allen came to me
    concerned that his son (Applicant) would be irrevocably injured were he to be
    moved to general population in the Bexar County Jail. Applicant had received a
    cervical fracture in the collision which led to his arrest. This fracture placed him
    at risk for spinal cord injury in the violent atmosphere of Bexar County Jail
    general population. Despite the fact that Mr. Allen could not pay me, I put aside
    other work and sought Applicant’s release from custody on person recognizance. I
    was successful in this regard. I told Mr. Allen at that time that Applicant’s only
    hope              was from a jury, given the death and severity of injures he had
           for probation
    caused. The plan from the outset was trial byjury. Mr. Allen described his son as
    young and inexperienced, not given to drinking alcohol and the type of drinker
    who would not even ﬁnish a beer. Mr. Allen described how his son had become
    romantically involved with an older woman and that this involvement lead to an
    episode of drinking with her friends during which he had become intoxicated.
    When he was leﬁ behind by the group, he had drunkenly found his way to his
    truck, driven off and caused the fatal accident. I determined to present the
    mitigating aspects of this scenario to a jury hoping for probation under the
    circumstances. In this regard, I hired Dr. Michael Arambula, a forensic
    psychiatrist and Pharm D. making him authoritative in psychopharmacology (the
    effect of drugs and alcohol on the mind). I also planned to present individuals who
    knew Applicant as an inexperienced non-drinker whose naivete would be viewed
    as mitigating by thejury. As the case progressed however, it became apparent that
                                                                                             51031190




     Mr. Allen’s version of the event was complete fiction. A picture emerged that
     Applicant had in fact started drinking heavily in this new relationship and had
     probably embarrassed his girlfriend with his drunken behavior on the night in
     question. When she sought to have him stay behind to “sleep it off’, he
     experienced this as an humiliating abandonment by his “first love”, became
     suicidal and tried to “end it all” by intentionally driving down the wrong side of
     the highway without regard to the innocent lives he might effect thereby. The
     initial medical records brought to me by Applicant’s father were consistent with        ‘3£SlclFJ'E€I!\




     the false story he gave me about Applicant’s naivete with alcohol. As trial
     approached, I obtained more complete records in discovery that revealed
     Applicant’s growing history of alcohol abuse, records in which he admitted
     periodic binge drinking leading up to the offense in question and a developing
     alcoholism consistent with his family history and one which he had been
     desperate to conceal from them. Applicant’s mother is Native American. Her
     brother’s alcohol addiction led to multiple DWI arrests, imprisonment and
     eventual death from acute alcohol poisoning. I expressed my concerns that (1) this
     had been withheld from me (2) with the well-known genetic basis for alcoholism
     and (3) how incompatible this was with his defense of naivete. As trial
     approached and l inquired about witnesses with whom he was drinking on the
     night of the accident, it became clear that their presence would further undennine
     his claims of inexperience and seal his fate. I was forced to adapt my trial strategy
     to conceal these truths from t.he prosecution. As it was, Applicant and I were
     careful to structure his testimony to avoid any mention of his former girlfriend’s
    _name, a commercial photographer with a webpage who could easily be found on
     the lntemet by a quick thinking prosecutor. lt was evident that had the prosecution
     made contact, it would have led to disastrous results.”
     “While I was prepared to present mitigation to Judge Herr in the sentencing
     hearing, I had not anticipated how effectively the prosecution would counter this
     by literally packing the courtroom with the friends and family of the victims. This
     seemed to place sociopolitical pressure on the sentencing judge. I infonned
     Applicant that I might be able to counter this during the 30-day period of
     continuingjurisdiction. It is true that I did not expect or predict that Judge Herr
     would give Applicant no leniency at all under the tenns of the plea bargain
     agreement, sentencing him to the maximum allowed under the “cap”. The
     likelihood only developed during the sentencing hearing.
.    In this afﬂdavit, l have ex ressl described each if Applicantfs aslsertions as
     complete and utter falsehoods for a reason: it is becﬁisﬁhey are co—rn;)Ttea‘nd
     utter falsehoods and because he knows that they are.                              for
     applicant before, during and after his trial and 1 am therefore somewhat mystiﬁed
     by the completely baseless claim of Ineffective Assistance of Counsel, particularly
     because Applicant was advised of a legitimate avenue for seeking a new trial.
     After his sentencing, Applicant and his family were repeatedly informed of the
     thirty (30) day motion for new trial jurisdiction and were urged by me to contact
     experienced Board Certiﬁed Criminal Law Specialist in order to attempt to set
     aside the resulting sentence. I received a number of calls from qualiﬁed lawyers
                                                                                           SIP-JZI190




and spoke with several experienced criminal defense lawyers about areas of
possible post-conviction relief and my willingness to assist in this regard. For
example, this case was extensively litigated in a pretrial motion to suppress
regarding the validity of the warrantless blood draw. That motion was overruled
by the court. It is highly likely that the trial court was in error in that regard. The
prosecutor at the time (Mr. Fuchs) conﬁded in me his concerns that my
suppression argument was valid and his fear that the judgment could be
overturned on appeal when l structured the plea in such a way as to preserve              E>£S'ld0'[£11\




Applicant’s right to appeal rulings on pretrial motions. In response to have
structured the plea to appeal the motion to suppress, the prosecutor supplemented
the stipulations in a way he believed would defeat such an appeal. That avenue
was not pursued then, due to the pendency of the above described credit for time
sewed. However, it should have been raised in this writ of Habeas Corpus by
seeking an out of time appeal in that regard, as that issue would in my opinion
have a high likelihood of success, certainly higher than that of patently absurd
claim of ineffective assistance of counsel. The Applicant’s post-conviction
pursuits would have been better placed in that regard and why that has been
abandoned is beyond me except for Applicant’s acting pro se and without
competent legal advice in this regard. I had previously advised Applicant and his
family of the post-conviction strategy of seeking an out of time appeal challenging
the denial of the motion to suppress. I had explained that Applicant could ﬁle a
motion for a new trial and/or give notice of appeal regarding the motion to
suppress the ruling. i also explained that doing so might draw attention to the
unauthorized credit for time served and caused an interested prosecutor to
challenge this credit. There also remained the possibility of the trial court
reconsidering the deadly weapon finding by removing or omitting it in the
judgment. As it developed, the trial court amended the judgment by awarding
credit for time served. Judge Herr actually did this after herjurisdiction had
expired in a manner which could now (and then) be challenged as invalid.
Unfortunately, the afﬁmtative ﬁnding of the use of a deadly weapon remained.
The better strategy for Applicant would have been to employ experienced counsel
and seek an out of time appeal of motion to suppress through a post-conviction
writ of habeas corpus, a strategy which is probably now foreclosed by the “one
writ rule”. By acting pro se and not following my advice, he has (I) lost legitimate
challenge to his conviction and (2) threatened the continuing viability for his
unauthorized credit for time served. If the prosecution now challenges that credit
for time served, he will probably lose it. Additionally, he will not be able to
challenge the trial court’s erroneous denial of his motion to suppress the
warrantless blood draw, thus ruling out any further challenge to his sentence.”
                                      CONCLUSIONE OF LAW
                                                                                                               SI'BZ'LT,90




1.   Under the two-prong standard         for reviewing ineffective assistance       of counsel claims,

     Applicant must show that (1) counsel’s representation        fell   below an objective standard of

     reasonableness and (2) there    is   a reasonable probability   that,   but for counsel’s deﬁcient        09S'[d-@T£I;r’\




     performance, the result of the proceeding would have been different. Strickland v.

     Washington, 466 U.S. 668 (1984); See also McFarland v. State, 845 S.W.2d 824, 842-43

     (Tex. Crim. App. 1992).

     Trial counsel sufﬁciently rebuts all allegations     made against him and provided a detailed

     account of his work on the case, the court concludes that his representation of Applicant

     did not       below an objective standard of reasonableness. Therefore, this court
                ,1’                                                                   r——

     recornrnends that Applicant’s second, third and fourth grounds for relief pertaining to

     ineffective assistance   of counsel be DENIED. See Strickland v. Washinglon, 466 U.S.

     668 (1984).

     Based on the foregoing ﬁndings of fact and conclusions of law,             it   is   hereby recommended

     that this application   be   DENIED.
                                                                                                        SI!‘-)ZI1‘9(-J




                                           0RDERS                                                       IA‘
       The   District   Clerk of Bexar County, Texas,   is   hereby ordered to prepare a copy of this
                                                                                                        15
document, together with any attachments and forward the same to the following persons by mail or
the most practical means:
                                                                                                        T9SId‘E)




       a.   The Court of Criminal Appeals
             Austin, Texas 78711



       b.   Nicholas “Nico” LaHood
            Criminal District Attorney
            Cadena - Reeves Justice Center
            Bexar County, Texas 78205

       c.    Lynwyatt Allen
             TDCJ ID: 01935579
             Dominguez Unit
             6535 Cagnon Road
             San Antonio, Texas 78252

SIGNED, ORDERED and DECREED on                /         U //45% Z 0/5

                                                    F        i1soN    MOORE
                                                      e l86TH Judicial District Court
                                                   exar County, Texas
Exhibit   I
                                                               5..
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