                                                                        WR-78,439-02
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
May 15, 2015                                             Transmitted 5/15/2015 1:52:06 PM
                          No. WR-78,439-02                 Accepted 5/15/2015 2:01:25 PM
                                                                           ABEL ACOSTA
                                                                                   CLERK

                IN THE COURT OF CRIMINAL APPEALS

                              OF TEXAS
               _______________________________________

                             EX PARTE

                           DAMON WEST,

                              Applicant
      ________________________________________________________

                On Application for a Writ of Habeas Corpus
                    In Cause Number W09-00248-Y(B)
               In the District Court of Dallas County, Texas
                  Hon. Jeannine Howard, Judge Presiding
     _________________________________________________________

                        APPLICANT’S BRIEF

                   ___________________________________________




                                     CHIP B. LEWIS
                                     SBN. 00791107
                                     ALICIA DEVOY ONEILL
                                     SBN. 24040801
                                     1207 South Shepherd Drive
                                     Houston, Texas 77018
                                     (713) 523-7878
                                     (713) 523-7887 (FAX)


                                     ATTORNEYS FOR APPLICANT



                                     ORAL ARGUMENT REQUESTED
                        IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 52.3(a), a complete list of the names of all

interested parties is provided below.

Applicant:                                  Damon West
                                            TDCJ # 01585689
                                            Mark W. Stiles Unit
                                            3060 FM 3514
                                            Beaumont, Texas

Prosecutors at Trial:                       Jennifer Morse
                                            Felicia Oliphant
                                            Assistant District Attorneys
                                            133 North Riverfront Boulevard
                                            Dallas County, Texas

Prosecutor for Writ Proceedings:            Jaclyn O’Connor Lambert
(In Trial Court and in this Court)          Assistant District Attorney
                                            133 North Riverfront Boulevard
                                            Dallas County, Texas

Defense Counsel at Trial:                   Ed Sigel
                                            Attorney at Law
                                            15950 Dallas Pkwy Ste 400
                                            Dallas, TX 75248

Defense Counsel for Writ Proceedings:       Chip B. Lewis
(In Trial Court and in this Court)          Alicia Devoy O’Neill
                                            Attorney at Law
                                            1207 S. Shepherd Dr.
                                            Houston, Texas 77019

Presiding Judge:                            Honorable Jeannine Howard
                                            Criminal District Court No. 6
                                            Frank Crowley Courts Building
                                            133 N Riverfront Blvd # 4
                                            Dallas, Texas 75207

                                        i
                                         TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

TRIAL COURT’S FINDINGS .................................................................................. 4

STATEMENT OF FACTS ........................................................................................ 6

SUMMARY OF THE ARGUMENT......................................................................10

SOLE ISSUE:

DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE?...................10

ARGUMENT ........................................................................................................... 11

PRAYER .................................................................................................................. 62

CERTIFICATE OF SERVICE ................................................................................ 63

CERTIFICATE OF COMPLIANCE ....................................................................... 64

APPENDIX .............................................................................................................. 65

Order Appointing April Smith .................................................................................. A

Motion to Recuse, Order of Recusal, and Order of Assignment .............................. B

Trial Court’s Proposed Findings of Fact and Conculsion of Law ............................ C




                                                             ii
                                     INDEX OF AUTHORITIES

Cases


Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981) .................................... 19

Catalan v. Cockrell, 315 F.3d 491 (5th Cir.2002) .................................................... 20

Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997) ............................................... 19

Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008) .................................................. 12

Ex parte Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974) ................................. 19

Ex parte Cash, 178 S.W. 3d 816,818...........................................................................
............................................... 20, 23, 24, 29, 32, 34, 37, 39, 44,46, 48,50, 53, 57, 60

Ex parte Cavett, 521 S.W.2d 619 (Tex. Crim. App. 1975) ..................................... 19

Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980) ...................................
.............................................................................................18, 19, 23, 32, 36, 42, 50

Ex parte Ewing, 570 S.W. 2d 941, 945 (Tex.Crim. App. 1978) .................................
.......................................................................................20, 23, 32, 37, 42, 46, 50, 57

Ex parte Harris, 596 S.W. 2d 893 (Tex. Crim. App. 1980) .................................... 19

Ex parte Howard, 591 S.W.2d 906 (Tex. Crim. App. 1980)................................... 19

Ex parte Lilly, 656 S.W. 2d 490 (Tex. Crim. App. 1983) ....................................... 19

Ex parte Marez, 505 S.W.2d 930 (Tex. Crim. App. 1974) ..................................... 19

Ex parte Raborn,658 S.W.2d 602 (Tex. Crim. App. 1983) .........................................
.............................................................................................18, 19, 23, 32, 36, 42, 50

Ex parte Reed, 271 S.W. 3d 698, 727 (Tex.Crim.App.200) ...................................... 6

Ex Parte Walker, 777 S.W. 2d 427 (Tex. Crim. App. 1989) ............................41, 42

                                                          iii
Ex parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) .....................................
...................................................................................................18, 23, 32, 36, 42, 49

Ex parte Ybarra, 629 S.W. 2d 943 (Tex. Crim. App. 1982) .......................................
.............................................................................................18, 19, 23, 32, 36, 24, 50

Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 700, 148 L.Ed.2d 604
(2001) ...........................................................................................................13, 60, 62

Haynes v. State, 790 S.W.2d 824 (Tex. App.—Austin 1990, no pet.) .................... 20

Hernandez v. State, 726 S.W. 2d 53, 57 (Tex. Crim. App. 1986) ...............................
.................................20, 23, 24, 28, 30, 32, 34, 37, 39, 44, 46, 48, 50, 53, 57, 60, 61

Hutchinson v. State, 663. S.W. 2d 610 (Tex. App.—Houston [1st Dist.] 1983, pet.
ref’d) ........................................................................................... .......................19, 41

Jackson v. State, 857 S.W. 2d 678 (Tex. App.—Houston [14th Dist.] 1993, pet.
ref’d) ......................................................................................................................... 20

Milburn v. State, 15 S.W. 3d 267 (Tex. App. –Houston [14th Dist.] 2000, pet.
ref’d). ........................................................................................................................57

Mitchell v. State, 762 S.W. 2d 916 (Tex. App.—San Antonio 1988, pet. ref’d) .... 20

Montez v. State, 824 S.W.2d 308 (Tex. App. —San Antonio 1992, no pet.).........42

Murphy v. State,663 S.W.2d 604(Tex.App.—Houston [1st Dist.] 1983, no pet.) ... 19

Narvaiz v. State, 840 S.W. 2d 415, 434 (Tex. Crim. App. 1992) ................................
.............................................20, 24, 28, 30, 33, 34, 37, 39, 44, 46, 48, 50, 53, 58, 61

Picken v. Lockhart, 714 F. 2d 1455, 1467 (8th Cir. 1983) ....................................... 57

Sanders v. State, 715 S.W.2d 771 (Tex. App.—Tyler 1986, no pet.) ..................... 19

Strickland v. State, 747 S.W. 2d 59 (Tex. App.—Texarkana 1988, no pet.) .......... 19




                                                                iv
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d
674 (1984) ............................................................................................................... .....
.........11, 12, 13, 20, 23, 24, 28, 30, 32, 34, 37, 39, 44, 46, 48, 50, 53, 57, 60, 61, 62

Strickland v. Washington, 466 U.S. 694, 104 S.Ct. 2068 ..................................11, 12

United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L.Ed.2d 657 (1984) ... 23

United States v. Rusmisel, 716 F2d 301 (5th Cir.1983)......................................12, 28

West v. State, No. 05-09-00577-CR WL 783616 (Tex.App.-Dallas, March 8, 2011,
pet.ref’d) ..................................................................................................................... 2

Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) .....11, 57

American Bar Association Materials

ABA Standards for Criminal Justice: The Defense Function,Standard 4-4.1 (2d ed.
1986).......................................................................................................................11

Constitutional Provisions, Statutes

Tex. Crim. Pro. §38.21, 38.22, & 38.23 ...........................................................31, 32

Tex. R. Evid. §402, 403, 404, 602, 701 .............................................................35, 36




                                                                v
                             ISSUES PRESENTED

                                  SOLE ISSUE


         DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE?


                         STATEMENT OF THE CASE

      Applicant is currently in custody and being restrained of his liberty in the

Texas Department of Criminal Justice – Institutional Division pursuant to

conviction and judgment of the Criminal District Court #7 of Dallas County, Texas

in cause number F09-00248.

      Applicant entered a plea of not guilty to the first-degree felony charge of

Engaging in Organized Criminal Activity (EOCA), in which the underlying felony

was burglary of a habitation, in the Criminal District Court #7 of Dallas County,

Texas on May 11, 2009. See Reporter’s Record of Proceedings Applicant’s Jury

Trial (Applicant’s trial R.R.) Applicant’s trial X R.R. at 8-9. A jury convicted

Applicant and then sentenced him to sixty-five (65) years in prison on May 18,

2009. See Applicant’s trial XIII R.R. at 76; XIV R.R. at 127-129.

      Applicant was represented during the pretrial and trial stage of cause number

F09-00248 by retained lead counsel Edwin Sigel, as detailed below. Applicant

was also represented at trial by second chair counsel Karen Lambert, as detailed

below.
                                         1
       The Fifth Court of Appeals affirmed Applicant’s conviction on March 8,

2011, and the Court of Criminal Appeals refused to grant discretionary review on

September 14, 2011. West v. State, No. 05-09-00577-CR, 2011 WL 783616

(Tex.App.-Dallas March 8, 2011, pet.ref'd.)(not designated for publication). See

Applicant’s Writ Exhibit 4, Opinion of the 5th Court of Appeals in State v. Damon

West. Applicant was represented during his direct appeal by retained counsel,

Allan Fishburn. See Applicant’s Writ Exhibit 4.

       Applicant filed a pro se application for writ of habeas corpus in cause

number W09-00248-Y(A). Counsel Sigel filed a sworn affidavit dated August 10,

2012 responding, in part, to ineffective assistance of counsel claims in Applicant’s

pro se application. See Applicant’s Writ Exhibit 1, Affidavit of Edwin Sigel. Writ

Counsel, Chip B. Lewis, filed a motion to dismiss the pro se application for writ

without prejudice, which the Court of Criminal Appeals granted on April 3, 2013.

The instant cause is an application for writ of habeas corpus filed by writ counsel

on March 19, 2013, in W09-002480Y(B) and alleges in its sole ground for relief

that Applicant was denied the effective assistance of counsel at the punishment

stage of his trial.

       Karen Lambert provided writ counsel with a credible sworn affidavit in

relation to her involvement in Applicant’s trial on February 27, 2013. See

Applicant’s Writ Exhibit 3, Affidavit of Karen Lambert. Writ counsel conducted a

                                         2
recorded interview with Counsel Sigel on May 3, 2013.           See Transcript of

Interview with Counsel Sigel (Writ Hearing R.R., Exhibit 91). The Original Trial

Court appointed Special Master, April Smith, to conduct a hearing if necessary and

enter findings of fact and conclusions of law in Applicant’s writ. See Order

Appointing April Smith, attached as Appendix A. The Special Master ordered and

held a live evidentiary hearing in this case on September 5, 2013. Applicant’s lead

trial counsel, Edwin Sigel, and second chair counsel, Karen Lambert, were called

by Applicant and provided live, sworn, transcribed testimony and were cross-

examined by the State of Texas. See Reporter’s Record of proceedings of 11.07

Writ Hearing (Writ Hearing R.R.). At the conclusion of the hearing, the Special

Master informed both parties that she would prepare findings of fact and

conclusions of law recommending that relief be GRANTED to Applicant in the

form of a new punishment hearing.

      The Original Trial Court judge in this case, Michael Snipes, voluntarily

recused himself, after he prematurely and improperly signed the State’s proposed

findings: without allowing the Special Master to comply with his own order that

she prepare and present her findings; before the court reporter provided him with

the record of the writ hearing; and before the parties could present argument. See

Motion to Recuse and Order of Recusal attached as Appendix B.            After the

Original Trial Court’s recusal, this Court remanded this writ to Dallas County, and

                                        3
the case was reassigned to Dallas County Criminal District Court #7 (hereafter, the

Trial Court) and Judge Jeannine Howard of that court instructed the Special Master

to file her findings.     In July of 2014, the Special Master issued findings

recommending that the Trial Court and this Court grant the Applicant relief in the

form of a new punishment trial due to harmful ineffective assistance of counsel.

The Trial Court then properly reviewed all of the information from the writ and

writ hearing and adopted the findings prepared by the Special Master and

recommended to this Court that the Applicant be granted a new punishment trial

due to ineffective assistance of counsel.

      On March 18, 2015, this Court ordered that this case be filed and set for

submission, and that the parties address the issue of ineffective assistance of

counsel examined in this brief.

                          TRIAL COURT’S FINDINGS

      The Trial Court in this case entered findings based on credibility

determinations and evidentiary findings made by the Special Master who presided

over the live hearing in, and reviewed all material germane to, this writ. See Trial

Court’s Proposed Findings of Fact and Conclusions of Law attached as Appendix

C.

      The Trial Court’s findings state, among other things, that in the Applicant’s

trial in this case: “Sigel was flying by the seat of his pants in this case due to his

                                            4
failure to prepare,”; “Sigel failed to properly investigate the case and fully

understand the charge against Applicant,”; “Sigel did not have a firm command of

the facts or the law regarding EOC (Engaging in Organized Crime) or voluntary

intoxication,”; “Sigel incorrectly informed Applicant that the State could not prove

the EOC part of the indictment,”; “Sigel’s cross examination clearly showed his

lack of preparation and investigation or knowledge of the State’s evidence. Sigel

elicited damaging testimony during his cross-examination,”; “Sigel advanced

numerous unreasonable trial strategies due to his unpreparedness,”; “Sigel…

questioned many witnesses and presented witnesses that advanced the State’s

theory that Applicant was a privileged athlete who did not deserve leniency,” and;

Sigel failed to investigate or call available punishment witnesses that “would have

contributed to the mitigation evidence. Failing to call these witnesses allowed the

State to argue that the defense witnesses were worthless because they were

politicians who had not interacted with the Applicant for more than five years. It

also allowed for the State to argue that the jury should begin by considering a life

sentence and take off five for every good thing they heard about Applicant at trial.”

      The Trial Court went on to specifically find, “Applicant has proven each of

the allegations regarding ineffective assistance of counsel raised in his

application,” and “Applicant has proven that he received ineffective assistance of

counsel. Applicant proved that counsel’s representation fell below an objective

                                          5
standard of reasonableness.     And he proved that that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.        Applicant proved that his attorney’s

representation was unreasonable under prevailing professional norms and that the

challenged action was not sound strategy. Applicant has been denied the rights

guaranteed to him by the United States Constitution or the Texas Constitution.

This Court recommends that this writ of habeas corpus be granted.”

      The Court of Criminal Appeals will ordinarily defer to trial court's findings

and conclusions that are supported by the record. See Ex parte Reed, 271 S.W.3d

698, 727 (Tex.Crim.App.2008). The Trial Court’s findings recommending that

Applicant be granted relief in the form of a new punishment trial are supported by

the record, as discussed below, and as such this Court should defer to those

supported findings.

               STATEMENT OF FACTS: COUNSEL SIGEL’S
                       REPRESENTATION

      Applicant was represented during the pretrial and trial stage of his case by

lead counsel Edwin Sigel (Counsel Sigel). See Applicant’s Trial IV- XIV R.R.;

Applicant’s Writ Exhibit 1, 3. Applicant’s family hired Counsel Sigel sometime

before the pretrial hearing held on October 16, 2008 – an exact date cannot be

confirmed due to Counsel Sigel’s failure to maintain Applicant’s file. See IV R.R.

of Applicant’s trial; Applicant’s Writ Exhibit 1, 3. Counsel Sigel failed to preserve
                                         6
any part of his file in Applicant’s case, erroneously believed it was in a storage unit

that contained only his personal belongings, and is unable to offer any explanation

for what happened to Applicant’s file. See Writ Hearing R.R. at 7-8.

      Counsel Sigel conducted pretrial hearings, set Applicant’s case for trial, and

acted as sole counsel until approximately sixty (60) days before the second

“special set” trial setting in Applicant’s case on May 11, 2009. See Applicant’s

Jury Trial IV-VI R.R.; Applicant’s Writ Exhibit 3.           Counsel Sigel had also

previously announced ready for a “special set” February 2009 trial date but was

unable to go to trial in Applicant’s case on that date due to a personal medical

event. See Applicant’s Writ Exhibit 3. In Dallas County District Court Number 7

when a case is “special set” it means that everyone involved in the trial is on notice

and agrees that the trial is definitely going to be tried by the court on that date. See

Applicant’s Writ Exhibit 3.

Second-Chair Counsel Karen Lambert

      The facts asserted in Karen Lambert’s (Ms. Lambert) sworn affidavit and

writ hearing testimony are credible and reliable. See Applicant’s Writ Exhibit 3;

Trial Court’s Findings of Fact and Conclusions of Law. Applicant’s family hired

Ms. Lambert on March 12, 2009, after Counsel Sigel’s personal medical event, for

the purpose of assisting Counsel Sigel at Applicant’s upcoming trial. See

Applicant’s Writ Exhibit 3. Ms. Lambert has practiced criminal law in the Dallas

                                           7
County area for over twenty-five (25) years, has tried over three hundred criminal

cases to verdict, enjoys a positive professional reputation in the legal community,

and is familiar with the objective standard of reasonableness for effective

assistance of criminal defense counsel under the current prevailing norms. See

Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 102-104; Trial Court’s Findings

of Fact and Conclusions of Law.

      All important decisions regarding relaying the State’s evidence to Applicant,

advising Applicant regarding his rights and plea, whether or not to set the case for

trial, trial strategy, and identifying and designating lay witnesses for trial were

made by Counsel Sigel before Ms. Lambert was hired to assist with the trial;

Counsel Sigel never consulted Ms. Lambert regarding any of the lay witnesses, and

none of them changed once she was hired. See Applicant’s Writ Exhibit 3; Writ

Hearing R.R. at 104-120. Ms. Lambert’s participation in Applicant’s trial came

from her volunteering to take on tasks – that she could attempt to complete in the

limited time before trial – that she believed should have already been done by

Counsel Sigel or needed to be done to protect Applicant’s rights. See Applicant’s

Writ Exhibit 3; Writ Hearing R.R. at 104-120.          Ms. Lambert focused her

involvement in Applicant’s case on conducting discovery, properly filing motions

to contest the search warrants, and preparing the defense experts to testify. See

Writ Hearing R.R. at 104-120.

                                         8
      Ms. Lambert was made to feel unwelcome and like her help was not needed

by Counsel Sigel during her involvement in Applicant’s case. See Writ Hearing

R.R. at 115-116, 147. Ms. Lambert repeatedly tried to meet with Counsel Sigel,

including the weekend before trial, to help prepare for trial and so that he could

inform her of what her exact role in trial was going to be, but was unable to get

Counsel Sigel to agree to meet with her. See Writ Hearing R.R. at 109-110. Ms.

Lambert became concerned during Counsel Sigel’s voir dire because it was

confusing to the jurors and didn’t address the mitigation issues specific to their

case. See Writ Hearing R.R. at 111.          Counsel Sigel called Ms. Lambert’s

involvement in the trial a “betrayal” by the Applicant’s family, stated that she was

only hired on to deal with the mental health experts, and that his overall experience

with her during trial was that, “she’s an idiot.” See Writ Hearing Exhibit 25 at 26,

29-30, 39-40, and 91. Counsel Sigel’s writ hearing testimony that Ms. Lambert

served as an equal participant in the trial and that he actively involved her in the

strategic decisions made before and during Applicant’s trial is not credible or

reliable. See Writ Hearing R.R. at 6-7; Trial Court’s Findings of Fact and

Conclusions of Law.

The State’s Apparent Theory of Punishment Aggravation

      The State’s apparent theory of punishment aggravation was that Applicant

was a dangerous, unremorseful, privileged athlete from a good family who had

                                         9
every advantage, was so poorly regarded that he didn’t have anyone who recently

had contact with him who was willing to testify to anything good about his

character, and didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5.

The State explicitly challenged the jury to start their punishment deliberations at a

life sentence, the top of the range of punishment, and “take off five” from the life

sentence for every good thing they had heard about Applicant from the evidence

introduced by Applicant at trial. See Applicant’s Writ Exhibit 5.

                       SUMMARY OF THE ARGUMENT

      In his sole issue, the Applicant complains that his trial counsel was

ineffective for failing to properly prepare, investigate, and represent the Applicant

in his trial and that he was prejudiced at the punishment stage of his trial by

counsel’s ineffective assistance.



                                    SOLE ISSUE

       DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE?


                           A. APPLICANT’S CLAIM

      In his sole ground in his writ application, the Applicant maintains that trial

counsel rendered ineffective assistance.




                                           10
                       B. ARGUMENT AND AUTHORITIES

                          1. DEFICIENT PERFORMANCE


      Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984), an ineffective assistance of counsel claim is subjected to a

two-step analysis whereby the applicant must show that: (1) counsel’s performance

fell below an objective standard of reasonableness, and (2) but for counsel’s

unprofessional errors, there is a reasonable probability that the result of the

proceedings would have been different. Strickland defines reasonable probability

as a “probability sufficient to undermine confidence in the outcome.” 466 U.S. at

694, 104 S.Ct. at 2068. The United States Supreme Court has explained that

“strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.”

Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Trial

counsel has an absolute duty “to conduct a prompt investigation of the

circumstances of the case and to explore all avenues likely to lead to facts relevant

to the merits of the case.” ABA Standards for Criminal Justice: The Defense

Function, Standard 4-4.1 (2d ed. 1986).



                                          11
      An attorney’s strategy can be so ill-chosen as to render a trial fundamentally

unfair. See, United States v. Rusmisel, 716 F2d 301 310 (5th Cir.1983). As the

Supreme Court explained in Strickland, strategy decisions should be judged by an

objective standard of reasonableness. Strickland v. Washington, supra, 46 U.S.

687-88; 104 S.Ct. at 2064.


                                 2. PREJUDICE

      Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80

L.Ed.2d 674 (1984), also requires that the applicant must show that “but for

counsel’s unprofessional errors, there is a reasonable probability that the result of

the proceedings would have been different.” Strickland defines reasonable

probability as a “probability sufficient to undermine confidence in the outcome.”

466 U.S. at 694, 104 S.Ct. at 2068.

      To establish that trial counsel’s deficient performance prejudiced Applicant,

it is not necessary to show that counsel’s conduct “more likely than not altered the

outcome in the case.” Rather, in determining whether a defendant was prejudiced

by counsel’s inadequate representation, this Court should examine the evidence

that could have been presented to the jury had counsel performed competently, and

compare that to the evidence that the jury actually heard. Duncan v. Ornoski, 528

F.3d 1222 (9th Cir. 2008). If the difference between the evidence that could have

been presented and that which actually was presented is sufficient to “undermine
                                         12
confidence in the outcome” of the proceeding, the prejudice prong is satisfied.

Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2052.

      While a convicted defendant must establish actual prejudice from his

attorney’s conduct, the State cannot avoid the consequences of a finding of

ineffective assistance by arguing that the prejudice is de minimus. For example,

any amount of additional time in prison constitutes prejudice. Glover v. United

States, 531 U.S. 198, 203, 121 S.Ct. 696, 700, 148 L.Ed.2d 604 (2001)(emphasis

added).



          C. THE EVIDENCE REGARDING THE INEFFECTIVE

                             ASSISTANCE CLAIM

  1. Specific Claims, Supporting law, and Factual Support from the Record

(a). Counsel Sigel Failed to Properly Investigate and Inform Applicant of the

Law of Engaging in Organized Criminal Activity (EOCA) and the

Overwhelming Evidence of Applicant’s Guilt in the State’s Possession

      Counsel Sigel failed to sufficiently investigate, gain a firm command of,

consult with, and inform Applicant regarding the EOCA law and the

overwhelming evidence of Applicant’s guilt of EOCA in the State’s possession.

See Applicant’s Writ Exhibit 2; See Writ Hearing Exhibit 25 at 17-20, 68; See Writ

Hearing R.R. at 8-20, 23, 30-31, 35-36, 39, 68, 72. The State had overwhelming

                                        13
and voluminous evidence of guilt in the case against Applicant, including video,

fingerprints, eyewitness identification, co-actor testimony, and DNA. See

Applicant’s Jury Trial R.R.; Applicant’s Writ Exhibit 1, 3.         Counsel Sigel’s

assertions that he did, or may have, personally thoroughly investigated,

understood, and explained the EOCA law to Applicant are not credible or reliable.

See Writ Hearing R.R. at 8-20, 23, 30-31, 35-36, 39, 68, 72; Trial Court’s

Findings of Fact and Conclusions of Law. Counsel Sigel’s assertions that he did,

or may have, personally thoroughly investigated, understood, and explained the

EOCA law to Applicant are directly contradicted by the fact that he admitted that

he informed Applicant, who was confined to the Dallas County Jail, that Applicant

should take it upon himself to look up anything that he did not understand about

the EOCA charge in his case on the internet. See Writ Hearing R.R. at 92. Counsel

Sigel’s assertions that he did, or may have, personally thoroughly reviewed all of

the evidence in the State’s possession are not credible or reliable. See Writ Hearing

R.R. at 35-36, 79; Trial Court’s Findings of Fact and Conclusions of Law.

      Counsel Sigel stated that he relied on Applicant’s original version of facts

alone to form the opinion that Applicant was not guilty of EOCA. See Writ

Hearing R.R. at 79-80. Counsel Sigel misinformed Applicant that the State could

not prove the EOCA charge against Applicant. See Applicant’s Writ Exhibit 2;

Writ Hearing R.R. at 23, 30-31, 68, 121, 128-129, 150-151; Trial Court’s Findings

                                         14
of Fact and Conclusions of Law. Counsel Sigel’s assertions that he personally

thoroughly reviewed all of the evidence in the State’s possession are directly

contradicted by the Reporter’s Record from Applicant’s trial and his own assertion

that Ms. Lambert did discovery, prepared for trial, and likely knew information

about the State’s case that he did not know and that this led to the admission of

damaging evidence. See Applicant’s Jury Trial R.R.; Writ Hearing Exhibits 6, 7, 8,

9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 25 at 91; Trial Court’s Findings of

Fact and Conclusions of Law.

      Counsel Sigel admitted that he only informed Applicant of some pieces of

evidence against him and then let Applicant learn other pieces of evidence by

listening to the witnesses testify about them at trial. See Writ Hearing R.R. at 35-

36. Counsel Sigel stated that he “wasn’t able to discuss a lot of things with Damon

West prior to trial” and that he let Applicant learn some of the incriminating

evidence against him by listening to the witnesses testify at trial because Applicant

was in jail and it was “a big job to go through everything with Damon.” See Writ

Hearing R.R. at 35-36, 39.

      Ms. Lambert stated that there was nothing about Applicant’s status of being

in jail that made it impossible to properly communicate with Applicant. See Writ

Hearing R.R. at 118. Ms. Lambert stated that no reasonable attorney would rely

on a client’s version of the facts of a case alone and that she would only form her

                                         15
belief of the strength of a case based on conducting a thorough discovery process.

See Writ Hearing R.R. at 149-150. Ms. Lambert stated that no reasonable attorney

would have informed Applicant that the State could not prove the EOCA charge

against Applicant in this case and that doing so would have tremendous sway with

any client. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 121, 150. Ms.

Lambert stated that any reasonable criminal attorney would have fully consulted

with Applicant, confronted him with all of the State’s evidence of guilt of EOCA,

and urged Applicant to enter a plea of guilty to the jury. See Applicant’s Writ

Exhibit 3; Writ Hearing R.R. at 139-141, 144-145.

      Counsel Sigel’s assertion that he fully investigated and knew all of the

evidence against Applicant and intentionally chose to only inform Applicant of

some pieces of evidence against him and let Applicant learn others by listening to

the witnesses testify at trial because he was in jail and is not credible or reliable.

See Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel’s

failure to inform Applicant of all of the evidence against him in the State’s

possession was due to the fact that he had not properly investigated and reasonably

prepared for the trial in Applicant’s case and was himself not aware of the

evidence in the possession of the State, until it was admitted in front of the jury, at

trial. Id. Assuming arguendo that Counsel Sigel did intentionally only inform

Applicant of some pieces of evidence against him and let Applicant learn others by

                                          16
listening to the witnesses testify at trial because Applicant was in jail and it was “a

big job to go through everything with Damon,” his actions were not reasonable or

effective trial strategy in Applicant’s case and constituted deficient performance.

See Trial Court’s Findings of Fact and Conclusions of Law. There is absolutely no

plausible basis for the strategy or tactic of Counsel Sigel’s failure to properly

investigate, gain a firm command of, consult with and inform Applicant of EOCA

law and the overwhelming evidence of Applicant’s guilt of EOCA in the State’s

possession. Counsel Sigel’s failure to properly investigate, gain a firm command

of, consult with and inform Applicant of the EOCA law and the overwhelming

evidence of Applicant’s guilt in the State’s possession constituted deficient

performance. Id.

      Counsel Sigel lost credibility with the jury and wholly failed to advance his

apparent trial strategy of mitigation by failing to properly investigate, gain a firm

command of, consult with and inform Applicant of the EOCA law and the

overwhelming evidence of Applicant’s guilt in the State’s possession. Counsel

Sigel’s failure to properly investigate, gain a firm command of, consult with and

inform Applicant of the EOCA law and the overwhelming evidence of Applicant’s

guilt in the State’s possession resulted in Applicant taking Counsel Sigel’s advice

and pleading not guilty and requesting a jury trial which invited the State’s theory

that Applicant was unremorseful, privileged athlete from a good family who had

                                          17
every advantage, and didn’t deserve leniency from the jury. See Applicant’s Writ

Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law.

      Applicant was unable to make an informed decision to enter a plea or to

request a jury trial because Counsel Sigel failed to properly inform Applicant of

the EOCA law and of the overwhelming evidence of Applicant’s guilt in the

State’s possession. See Trial Court’s Findings of Fact and Conclusions of Law.

Applicant did not make an informed personal decision to enter his plea in the

primary case. Id.

      Counsel Sigel never conducted the necessary legal and factual investigation

into Applicant’s case, which would have enabled him to make an informed rational

decision to pursue any given course of conduct within the realm of trial strategy.

Ex Parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980). Counsel Sigel

failed to fulfill his duty to make an independent investigation of the facts in

Applicant’s case. See Ex Parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990);

Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App. 1982); Ex parte Raborn, 658

S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim.

App. 1980). Counsel Sigel’s stated reliance on Applicant’s original recounting of

the facts of the case did not fulfill his duty to make an independent investigation of

the facts in Applicant’s case. See Ex Parte Wellborn, 785 S.W.2d 391 (Tex. Crim.

App. 1990); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). Counsel

                                         18
Sigel failed to gain a firm command of the facts of Applicant’s case and of the law

governing Applicant’s case before Applicant’s trial. See Ex Parte Ybarra, 629

S.W.2d 943, 946 (Tex.Cr.App.1982); Ex Parte Duffy, 607 S.W.2d 507, 526

(Tex.Cr.App.1980).

      Counsel Sigel failed to fulfill his duty “to advise the defendant of the

available options and possible consequences” of the different pleas that may be

entered to a criminal charge. Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir.

1981)(citation omitted).   Counsel Sigel failed to properly advise Applicant

concerning determining how to plead and whether he should enter a guilty plea.

Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997). Counsel Sigel failed to

confer with Applicant sufficiently to prepare a defense. See Ex parte Marez, 505

S.W.2d 930 (Tex. Crim. App. 1974); Ex parte Bratchett, 513 S.W.2d 851 (Tex.

Crim. App. 1974); Ex parte Cavett, 521 S.W.2d 619 (Tex. Crim. App. 1975); Ex

parte Howard, 591 S.W.2d 906 (Tex. Crim. App. 1980); Ex parte Harris, 596

S.W.2d 893 (Tex. Crim. App. 1980); Ex parte Ybarra, 629 S.W.2d 943 (Tex.

Crim. App. 1982); Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983); Ex

parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Murphy v. State, 663

S.W.2d 604 (Tex. App.— Houston [1st Dist.] 1983, no pet.); Hutchinson v. State,

663 S.W.2d 610 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d); Sanders v.

State, 715 S.W.2d 771 (Tex. App.—Tyler 1986, no pet.); Strickland v. State, 747

                                        19
S.W.2d 59 (Tex. App.—Texarkana 1988, no pet.); Mitchell v. State, 762 S.W.2d

916 (Tex. App.—San Antonio 1988, pet. ref’d); Haynes v. State, 790 S.W.2d 824

(Tex. App.—Austin 1990, no pet.); Jackson v. State, 857 S.W.2d 678 (Tex. App.—

Houston [14thDist.] 1993, pet. ref’d); Catalan v. Cockrell, 315 F.3d 491 (5th Cir.

2002). There is absolutely no plausible basis in the strategy or tactics for Counsel

Sigel’s actions of failing to properly investigate and inform Applicant of the law of

engaging in organized criminal activity and the overwhelming evidence of guilt in

the State’s possession. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App.

1978).

      Applicant has shown that, but for trial counsel’s failure to properly

investigate and inform Applicant of the law of EOCA and the overwhelming

evidence of guilt in the State’s possession, the result of the punishment proceeding

would have been different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v.

Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57

(Tex. Crim. App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v.

State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part

Strickland standard).

(b) Counsel Sigel Failed to Properly Investigate and Inform Applicant of the

Option and Advantages of Pleading Guilty to the Jury




                                         20
      Counsel Sigel never informed Applicant that he could plead guilty to the

jury and ask the jury to assess his punishment. See Applicant’s Writ Exhibits 2, 3;

Writ Hearing Exhibit 25 at 12-14; Trial Court’s Findings of Fact and Conclusions

of Law. Counsel Sigel never advised Applicant that a plea of guilty to the jury

would be a good way to try to mitigate his punishment. See Applicant’s Writ

Exhibits 2, 3; Writ Hearing Exhibit 25 at 12-14; Writ Hearing R.R. at 18-20, 39,

72, 81, 88; Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel

advised Applicant that the best way to mitigate his punishment would be to plead

not guilty to the jury and then let the jury assess his punishment. See Applicant’s

Writ Exhibit 2; Writ Hearing Record at 14-16, 83. Counsel Sigel stated that he

never informed Applicant that he could plead guilty to the jury and ask them to

assess his punishment or that a guilty plea would be a good way to try to mitigate

his punishment because he doesn’t “particularly care for” pleas of guilty to the jury

and does not “do them.” See Writ Hearing Exhibit 25 at 13-14.

      Ms. Lambert stated that she believes strongly that a plea of guilty to the jury

in this case would have been the superior way to try to mitigate Applicant’s

punishment. See Applicant’s Writ Exhibit 3. Ms. Lambert stated that she believes

any reasonable criminal attorney would have fully explained to Applicant the

option of pleading guilty to the jury, confronted him with all of the State’s

evidence, and strongly encouraged him to plead guilty. See Applicant’s Writ

                                         21
Exhibit 3. Ms. Lambert stated that she never witnessed Counsel Sigel do any of

these things and that Counsel Sigel’s choice to not do so did not advance counsel’s

apparent trial strategy of mitigation. See Applicant’s Writ Exhibit 3.

      Counsel Sigel’s decision to not inform and admonish Applicant of the option

and full strategic advantage of a plea of guilty to the same jury that would assess

punishment after hearing the State’s overwhelming evidence of guilt because

Counsel Sigel doesn’t “particularly care for” pleas of guilty to the jury and does

not “do them” was not reasonable or effective trial strategy in Applicant’s case.

See Trial Court’s Findings of Fact and Conclusions of Law. There is absolutely no

plausible basis for the strategy or tactics of Counsel Sigel’s failure to inform

Applicant of the option and advantages of pleading guilty to the jury. Counsel

Sigel’s failure to inform Applicant that he could plead guilty to the jury and ask

them to assess his punishment constituted deficient performance. See Trial Court’s

Findings of Fact and Conclusions of Law. Counsel Sigel’s failure to inform

Applicant that a plea of guilty to the jury would be a good way to try to mitigate

his punishment constituted deficient performance. Id. Counsel lost credibility with

the jury and wholly failed to advance his apparent trial strategy of mitigation by

failing to explain to Applicant the option and advantages of pleading guilty to the

jury. Id. Counsel Sigel’s failure to explain to Applicant the option and advantages

of pleading guilty to the jury resulted in Applicant pleading not guilty and

                                          22
requesting a jury trial which invited the State’s theory that Applicant was

unremorseful, privileged athlete from a good family who had every advantage, and

didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5; Id.

      Applicant was unable to make the personal decisions to enter a plea and to

request a jury trial because Counsel Sigel never made him aware of the possible

risks and benefits of entering a plea of not guilty and requesting a jury trial. United

States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Counsel

did not and could not make a sound strategic decision to not inform Applicant of

the option and advantages of pleading guilty to the jury because he failed to

properly investigate and prepare for trial. See Ex Parte Wellborn, 785 S.W.2d 391

(Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App.

1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy,

607 S.W.2d 507 (Tex. Crim. App. 1980). There is absolutely no plausible basis in

the strategy or tactic of Counsel Sigel’s failure to properly investigate and inform

Applicant of the option and advantages of pleading guilty to the jury. Ex parte

Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant has shown that,

but for trial counsel’s failure to properly investigate and inform Applicant of the

option and advantages of pleading guilty to the jury, the result of the punishment

proceeding would have been different. See Ex Parte Cash, 178 S.W.3d 816, 818;

Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726

                                          23
S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland standard in Texas);

and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the

two-part Strickland standard).

      Applicant was unable to make an informed decision to enter a plea of not

guilty and to request a jury trial because he was not made aware of the possible

risks and benefits of entering a plea of not guilty and of requesting a jury trial. See

Trial Court’s Findings of Fact and Conclusions of Law. Applicant did not make an

informed personal decision to enter a plea of not guilty in the primary case. Id.

Applicant has shown that, but for trial counsel’s failure to properly investigate and

inform Applicant of the option and advantages of pleading guilty to the jury, the

result of the punishment proceeding would have been different. See Ex Parte Cash,

178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the

Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.

Crim. App. 1992) (defining the two-part Strickland standard).

(c) Counsel Sigel’s Stated Strategy and Employment of the “Nickel Defense”

and/or the “Truth Defense”

      Counsel Sigel stated that he does not believe in ever advising a client to

plead guilty to the jury and instead believes in something he has created and named

the “nickel defense” and/or the “truth defense.” See Writ Hearing R.R. at 14-16.

                                          24
Counsel Sigel’s “nickel defense” involved him attempting to mitigate Applicant’s

punishment by advising Applicant to enter a plea of not guilty and then Counsel

Sigel making the unilateral decision to present the entire truth by letting every

single piece of evidence in – whether the evidence was admissible or not, harmful

to Applicant or not, and offered by the State or not – during the guilt/innocence

phase of Applicant’s trial. See Writ Hearing Exhibit 25 at 9-14; Writ Hearing R.R.

at 14-16, 44, 48-49. Counsel Sigel never consulted with or informed Applicant or

Ms. Lambert regarding his stated strategy to let the jury know the truth through the

use of the “nickel defense,” never explained the “nickel defense” to either, and

never got Applicant’s consent before pursuing the “nickel defense” in Applicant’s

trial. See Writ Hearing Exhibit 25 at 9-14, 66, 68; Writ Hearing R.R. at 71-72,

110-112, 131-132, 140; Trial Court’s Findings of Fact and Conclusions of Law.

      Counsel Sigel’s assertions that he did, or possibly did, try to explain the

“nickel defense” to Applicant are not credible or reliable and are directly

contradicted by his admission that, “(n)o. I never explained the nickel,” to

Applicant. See Writ Hearing R.R. at 71-72; Writ Hearing Exhibit 25 at 66; Trial

Court’s Findings of Fact and Conclusions of Law. Counsel Sigel stated that

pursuing the whole truth by having Applicant plead not guilty and then letting

every piece of possible evidence in whether it helped or harmed Applicant during

guilt/innocence was done to help mitigation and make the jury see Counsel Sigel as

                                        25
an honest lawyer. See Writ Hearing R.R. at 86. Counsel Sigel’s assertions that he

intentionally pursued the truth by having Applicant plead not guilty and then let

every piece of possible evidence in during guilt/innocence to help mitigation and

make the jury trust Counsel Sigel are not credible or reliable and are directly

contradicted by the fact that he indeed objected to some pieces of evidence and

attempted to keep them out, and not to others, throughout Applicant’s trial. See

Applicant’s Jury Trial R.R.

      Ms. Lambert stated that Counsel Sigel never informed her of the existence of

or his intent to use the “nickel defense” or the “truth defense.” See Applicant’s Writ

Exhibit 3; Writ Hearing R.R. at 110-112, 131-132, 140. Ms. Lambert stated that

Counsel Sigel should have fully informed and gotten the consent of Applicant

before advancing the novel “nickel defense” and that it was a violation of his duty

to Applicant and not reasonable to have not done so. See Writ Hearing R.R. at 139-

141. Ms. Lambert stated that it is not reasonable or effective trial strategy for a

defense attorney to pursue the whole truth by letting every single piece of evidence

in – whether the evidence was admissible or not, harmful or not, and offered by the

State or not – during the guilt/innocence phase of Applicant’s trial. See Writ

Hearing R.R. at 110-112, 131-132. Ms. Lambert stated that the evidence that came

in at trial as a result of Counsel Sigel’s implementation of the “nickel defense” or




                                         26
“truth defense” harmed Counsel Sigel’s apparent strategy of punishment

mitigation. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 110-112, 132.

      Counsel Sigel’s decision to advise Applicant to plead not guilty and then his

action of letting many damaging pieces of evidence in during guilt/innocence was

due to the fact that he had not properly investigated and reasonably prepared for

the trial in Applicant’s case and was not aware of the damaging evidence in the

State’s possession before it was elicited from witnesses, and admitted in front of

the jury, at trial. See Trial Court’s Findings of Fact and Conclusions of Law.

Assuming arguendo that Counsel Sigel did intentionally decide to pursue the

whole truth by having Applicant plead not guilty and then let every piece of

possible evidence in during guilt/innocence to somehow help mitigation and make

the jury trust Counsel Sigel was not a reasonable or effective trial strategy in

Applicant’s case and constituted deficient performance. Id. Counsel Sigel failed to

sufficiently admonished Applicant of the possible negative consequences and

strategic downfalls of his stated strategy to pursue the whole truth through the use

of the “nickel defense.” Id. Counsel Sigel’s failure to inform Applicant of, explain,

admonish, and get Applicant’s consent to use his stated strategy to pursue the

whole truth through the use of the “nickel defense” in order to make the jury trust

Counsel Sigel was not reasonable or effective trial strategy in Applicant’s case. Id.

Counsel Sigel’s actions in advising Applicant to enter a plea of not guilty and then

                                         27
Counsel Sigel making the unilateral decision to advance his stated strategy to

“pursue the truth” by letting every single piece of evidence in – admissible or not,

harmful or not, and offered by the State or not, during the guilt/innocence phase of

trial was not reasonable or effective trial strategy in Applicant’s case. Id.

      When judged by an objective standard of reasonableness, Counsel Sigel’s

stated strategy to purse the truth by letting every single piece of evidence in –

admissible or not, harmful or not, and offered by the State or not, during the

guilt/innocence phase of trial, through the use of his “nickel defense” was so ill-

chosen that it rendered Applicant’s trial fundamentally unfair. See United States v.

Rusmisel, 716 F.2d 301, 310 (5th Cir. 1983); Strickland v. Washington, supra, 466

U.S. 687-88; 104 S.Ct. at 2064. Applicant has shown that, but for trial counsel’s

unreasonable unilateral decision to advance his stated strategy to “pursue the truth”

by letting every single piece of evidence in – admissible or not, harmful or not, and

offered by the State or not, during the guilt innocence phase of trial through the use

of his “nickel defense,” the result of the punishment proceeding would have been

different. See Ex Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S.

668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)

(adopting the Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415,

434 (Tex. Crim. App. 1992) (defining the two-part Strickland standard).




                                           28
      There is absolutely no plausible basis for the stated strategy or tactics of

Counsel Sigel’s decision to “purse the truth” through the use of the “nickel

defense” in Applicant’s trial. See Trial Court’s Findings of Fact and Conclusions

of Law. Counsel Sigel’s decision to advance his stated strategy to “purse the truth”

through the use of the “nickel defense” in Applicant’s trial constituted deficient

performance. Id. Counsel Sigel lost credibility with the jury and wholly failed to

advance his apparent trial strategy of mitigation by failing to explain to Applicant

the option and advantages of pleading guilty to the jury. Id. Counsel Sigel’s stated

strategy to pursue the truth resulted in many pieces of evidence that were damaging

to Applicant be admitted in front of the jury. Id. Applicant was unable to make an

informed decision to enter a plea of not guilty and to request a jury trial after

consultation with Counsel Sigel because Counsel Sigel did not make him aware of

the existence of or possible risks of entering a plea of not guilty and pursuing

Counsel Sigel’s plan to pursue the whole truth through the use of the “nickel

defense” during a jury trial. Id. Applicant did not make an informed personal

decision to enter a plea of not guilty and pursue the “nickel defense” in the primary

case. Id.

      Applicant has shown that, but for trial counsel’s stated strategy and

employment of the “Nickel Defense” and/or the “Truth Defense” in this case, the

result of the punishment proceeding would have been different. See Ex Parte Cash,

                                         29
178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the

Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.

Crim. App. 1992) (defining the two-part Strickland standard).

(d) Counsel Sigel Failed to Object to Detective Gilbert Travis’ Testimony

Regarding Applicant’s Inadmissible Unrecorded Oral Statement Taken

During Custodial Interrogation

      Counsel Sigel failed to timely object when the State called Detective Gilbert

Travis (Detective Travis) to testify about the unrecorded oral statement he took

from Applicant during a custodial interrogation after Applicant’s arrest in this case.

See Applicant’s Writ Exhibit 6. Detective Travis testified that according to his

memory of this unrecorded custodial interrogation, Applicant made many false

denials of responsibility in the burglaries, wanted to blame unknown other people

for the crimes, and claimed to not know how the stolen items got in the car he was

driving. See Applicant’s Writ Exhibit 6. Applicant did not testify at his trial and

this denial of responsibility, recounted from the memory of an adverse witness,

served as the only statement that the jury ever heard Applicant make when directly

questioned about the offense. See Applicant’s Jury Trial R.R. Counsel Sigel never

timely objected to the admission of the unrecorded custodial interrogation and only

objected when the court sua sponte noted its glaring inadmissibility by stating,

                                         30
“(i)t’s clearly not admissible,” and asked for an objection outside of the presence

of the jury after the jury had already heard the testimony in its entirety. See

Applicant’s Writ Exhibit 6. When asked by the trial court to articulate its theory of

admissibility for the offered unrecorded custodial interrogation in Applicant’s trial

the State stood silent on the record and did not offer any possible theory of

admissibility. See Applicant’s Writ Exhibit 6.         Detective Travis’ testimony

regarding Applicant’s denial of responsibility during the unrecorded custodial

interrogation this case was an inadmissible unrecorded statement under Texas law.

See T.C.C.P. § 38.21, 38.22, & 38.23.

      Counsel Sigel’s assertion at the writ hearing that he may have known about

the statement’s inadmissible nature before the trial began is not credible or reliable.

See Writ Hearing R.R. at 31-38; Trial Court’s Findings of Fact and Conclusions of

Law. Counsel Sigel’s assertions that he intentionally let the unrecorded custodial

interrogation evidence in to pursue the whole truth and to let every single piece of

evidence in as part of his “nickel defense,” are not credible or reliable and are

directly contradicted by the fact that, once prompted by the trial court, he objected,

asked that the jury be instructed to disregard the evidence, and moved for a

mistrial. See Writ Hearing R.R. at 31-38.

      Ms. Lambert stated that she would have objected to the testimony in an

attempt to protect Applicant’s rights based on the inadmissible nature of this

                                          31
statement. See Writ Hearing R.R. at 126-127. Ms. Lambert stated that Counsel

Sigel failed to object to this testimony and that failing to object to this testimony

did not advance Counsel Sigel’s sworn trial strategy of mitigation. See Applicant’s

Exhibit 3; Writ Hearing R.R. at 127.

      Counsel Sigel did not and could not make a sound strategic decision to not

timely object to the admission of the unrecorded custodial interrogation because he

failed to properly investigate and prepare for trial. See Ex Parte Wellborn, 785

S.W.2d 391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943 (Tex.

Crim. App. 1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Ex

Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). Detective Travis’ testimony

regarding Applicant’s denial of responsibility during the unrecorded custodial

interrogation this case was an inadmissible unrecorded statement under Texas law.

See T.C.C.P. § 38.21, 38.22, & 38.23. There is absolutely no plausible basis in the

strategy or tactic of Counsel Sigel’s failure to timely object to the admission of the

unrecorded custodial interrogation. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex.

Crim. App. 1978). Applicant has shown that, but for trial counsel’s failure to

timely object to the admission of the unrecorded custodial interrogation, the result

of the punishment proceeding would have been different. See Ex Parte Cash, 178

S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez

v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland

                                         32
standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App.

1992) (defining the two-part Strickland standard).

      Counsel Sigel’s failure to timely object to the inadmissible statement was

due to the fact that he had not properly investigated and reasonably prepared for

the trial in Applicant’s case and was not aware of the issues with the statement

before the evidence was ever elicited by the State, and admitted in front of the jury,

at trial. See Trial Court’s Findings of Fact and Conclusions of Law. Assuming

arguendo that Counsel Sigel did intentionally let the unrecorded custodial

interrogation evidence in to pursue the whole truth and to let every single piece of

evidence in as part of his “nickel defense,” that was not a reasonable or effective

trial strategy in Applicant’s case. Id. There is absolutely no plausible basis for the

stated strategy or tactics of Counsel Sigel’s failure to timely object to the

admission of the unrecorded custodial interrogation. Id. Counsel Sigel’s failure to

timely object to the unrecorded custodial interrogation constituted deficient

performance. Id. Counsel Sigel’s failure to timely object to the unrecorded

custodial interrogation was not consistent with and did not advance Applicant’s

defensive strategy of mitigation. Id. The admission of the unrecorded custodial

interrogation reinforced the State’s theory and argument that Applicant was a

dangerous, unremorseful, privileged athlete from a good family who had every

advantage, was so poorly regarded that he didn’t have anyone who recently had

                                         33
contact with him who was willing to testify to anything good about his character,

and didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5; Trial

Court’s Findings of Fact and Conclusions of Law.

      Applicant has shown that, but for trial counsel’s failure to object to

testimony regarding Applicant’s inadmissible unrecorded oral statement taken

during custodial interrogation, the result of the punishment proceeding would have

been different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington,

466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840

S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland

standard).

(e) Counsel Sigel Failed to Object to Detective Travis’ Speculative Testimony

that Applicant Was in Possession of the Identification of a Police Officer

Because He Was Planning to Use It to Commit Crimes While Impersonating a

Police Officer

      Counsel Sigel failed to object when the State elicited speculative testimony

from Detective Travis that Applicant was in possession of items of identification

from a police officer because Applicant was going to use them to commit

extraneous future crimes while impersonating a police officer. See Applicant’s Writ

Exhibit 7. The State elicited inadmissible speculative extraneous testimony from

                                        34
Detective Travis regarding his guess as to what crimes Applicant might commit

with the police identification that was in his possession as a result of a burglary.

See Applicant’s Writ Exhibit 7. Detective Travis was allowed to speculate that he

was concerned that Applicant was going to use the identification to commit further

scarier crimes while impersonating a police officer. See Applicant’s Writ Exhibit 7.

The State never had in its possession, or offered any evidence at trial, that

Applicant targeted the homes of police officers, ever impersonated a police officer

for any purpose, or planned to commit extraneous crimes while impersonating a

police officer. See Applicant’s Jury Trial R.R.; Writ Hearing R.R. at 127-128.

Detective Travis’ testimony regarding his guess as to what crimes Applicant would

commit with the police identification that was in his possession as a result of a

burglary was inadmissible speculation and extraneous evidence under Texas law.

See T.R.E. §402, 403, 404, 602, 701; Trial Court’s Findings of Fact and

Conclusions of Law.

      Counsel Sigel’s assertion at the writ hearing that he may have known about

the statement’s inadmissible nature before the trial began is not credible or reliable.

See Writ Hearing R.R. at 39-41; Trial Court’s Findings of Fact and Conclusions of

Law. Counsel Sigel’s assertions that he intentionally let the speculative extraneous

testimony in to pursue the whole truth and to let every single piece of evidence in

as part of his “nickel defense,” are not credible or reliable. See Writ Hearing R.R.

                                          35
at 14-16; Trial Court’s Findings of Fact and Conclusions of Law.

      Ms. Lambert stated that a review of discovery showed that there was no

allegation that Applicant had impersonated a police officer and that she would not

have asked any such open-ended question that would allow an adverse witness to

speculate on issues that would harm Applicant. See Writ Hearing R.R. at 127-128.

Ms. Lambert stated that Counsel Sigel failed to object to this testimony and that

failing to object to this testimony did not advance Counsel Sigel’s sworn trial

strategy of mitigation. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 128.

      Detective Travis’ testimony regarding his guess as to what crimes Applicant

would commit with the police identification that was in his possession as a result

of a burglary was inadmissible speculation and extraneous evidence under Texas

law. See T.R.E. §402, 403, 404, 602, 701. Counsel did not and could not make a

sound strategic decision to not object to the inadmissible speculative extraneous

testimony from Detective Travis regarding his guess as to what crimes Applicant

might commit with the police identification that was in his possession as a result of

a burglary because he failed to properly investigate and prepare for trial. See Ex

Parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629

S.W.2d 943 (Tex. Crim. App. 1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim.

App. 1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). There is

absolutely no plausible basis in the strategy or tactic of Counsel Sigel’s failure to

                                         36
object to the inadmissible speculative extraneous testimony from Detective Travis

regarding his guess as to what crimes Applicant might commit with the police

identification that was in his possession as a result of a burglary. Ex parte Ewing,

570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant has shown that, but for

trial counsel’s failure to object to the inadmissible speculative extraneous

testimony from Detective Travis regarding his guess as to what crimes Applicant

might commit with the police identification that was in his possession as a result of

a burglary, the result of the punishment proceeding would have been different. See

Ex Parte Cash, 178 S.W.3d at 818; Strickland v. Washington, 466 U.S. 668, 686

(1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting

the Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.

Crim. App. 1992) (defining the two-part Strickland standard).

      Counsel Sigel’s failure to timely object to the speculative extraneous

testimony was due to the fact that he had not properly investigated and reasonably

prepared for trial in Applicant’s case and was not aware of the issues with the

statement before the evidence was elicited by the State, and admitted in front of the

jury, at trial. See Trial Court’s Findings of Fact and Conclusions of Law. Assuming

arguendo that Counsel Sigel did intentionally let the speculative extraneous

testimony in to pursue the whole truth and to let every single piece of evidence in

as part of his “nickel defense,” that was not a reasonable or effective trial strategy

                                         37
in Applicant’s case. Id. There is absolutely no plausible basis for the stated strategy

or tactics of Counsel Sigel’s failure to timely object to the admission of the

speculative extraneous testimony. Id. Counsel Sigel’s failure to timely object to the

admission of the speculative extraneous testimony constituted deficient

performance. Counsel Sigel’s failure to timely object to the speculative extraneous

testimony was not consistent with and did not advance Applicant’s defensive

strategy of mitigation. Id.

      The admission of the speculative extraneous testimony invited the State to

argue that the jury should fear Applicant and that he was more dangerous because

he was going to commit future crimes while dressed as a police officer making him

even harder to recognize as a criminal. See Applicant’s Writ Exhibit 5; Id. The

admission of the speculative extraneous testimony reinforced the State’s theory

that Applicant was a dangerous, unremorseful, privileged athlete from a good

family who had every advantage, was so poorly regarded that he didn’t have

anyone who recently had contact with him who was willing to testify to anything

good about his character, and didn’t deserve leniency from the jury. See Applicant’s

Writ Exhibit 5; Id.

      Applicant has shown that, but for trial counsel’s failure to properly object to

speculative testimony that Applicant was in possession of the identification of a

police officer because he was planning to use it to commit other crimes while

                                          38
impersonating a police officer, the result of the punishment proceeding would have

been different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington,

466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840

S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland

standard).

(f) Counsel Sigel Elicited Harmful and Aggravating Testimony from

Witnesses that the State Did Not Elicit and Therefore Would Not Have

Otherwise Been Presented to the Jury

      Counsel Sigel elicited the following harmful and aggravating testimony on

cross-examination of State’s witnesses, Counsel Sigel: (a) repeatedly led witness

Chatham to tell the jury that Applicant could not have known that Chatham was

out of town at the time of the burglary – in spite of the fact that all the burglaries

were committed intentionally when no one was home and no one was harmed was

strongly mitigating for Applicant; (b) elicited testimony from Detective Travis

showing that Applicant’s paperwork from a previous probation was found mixed in

amongst the stolen items in the car he was arrested in – due to counsel’s utter lack

of investigation and erroneous belief that there was no actual link between

Applicant and the stolen items inside of the car; (c) elicited testimony from Officer

Johnson regarding Applicant’s possession of Viagra, a drug known to be

                                         39
synonymous with increased sexual performance, in addition to methamphetamine

when Applicant was arrested sweaty and running through an apartment complex –

when there had been no implication of crimes of a sexual nature in these offenses

before this testimony; (d) asked open-ended questions to Detective Solis, the lead

investigator for the case, inviting him to speculate that the reason Applicant stole

women’s underwear was to intimidate witnesses; that the reason Applicant would

stay at the crime scenes and eat and drink was that he was not scared of the small

female victims coming home early and that, had they come home, Applicant surely

would have harmed them; and that the reason there were no fingerprints in any of

the homes burglarized was because of the stockpile of gloves officers found in the

possession of Applicant; (e) identified Applicant as person who committed

burglary – even though witness Scialo previously testified she could not identify

applicant in a line-up as the burglar in the crime she witnessed; and (f) elicited

testimony that the vehicle Applicant was arrested in, full of stolen items, belonged

to Applicant’s brother Grayson – inviting the State to further advance theory that

Grayson, who counsel did not investigate or call the testify, was the victim of

Applicant’s most egregious crime. See Applicant’s Writ Exhibits 8, 9, 10, 11, 12,

13.

      Counsel Sigel’s assertion at the writ hearing that he may have known about

this harmful and aggravating testimony that he was eliciting on cross-examination

                                        40
of State’s witnesses before the trial began is not credible or reliable. See Writ

Hearing R.R. at 41-52; Trial Court’s Findings of Fact and Conclusions of Law.

Counsel Sigel’s assertions that he intentionally elicited this harmful and

aggravating testimony on cross-examination of State’s witnesses to pursue the

whole truth and to let every single piece of evidence in as part of his “nickel

defense,” are not credible or reliable. See Writ Hearing R.R. at 49; Id.

      Ms. Lambert stated that she thoroughly reviewed all of the discovery

materials in Applicant’s case and would not have elicited the harmful and

aggravating nature of this elicited testimony. See Applicant’s Writ Exhibit 3; Writ

Hearing R.R. at 148. Ms. Lambert stated that Counsel Sigel elicited this testimony

and that eliciting this testimony did not advance Counsel Sigel’s sworn trial

strategy of mitigation. See Applicant’s Writ Exhibit 3.

      Counsel Sigel conducted ineffective cross-examination of State’s witnesses

when he bolstered, rather than challenged, the prosecution witnesses by eliciting

and emphasizing harmful and aggravating evidence against Applicant. See

Hutchinson v. State, 663 S.W.2d 610 (Tex. App.—Houston [1st Dist.] 1983, pet.

ref’d); Ex Parte Walker, 777 S.W.2d 427 (Tex. Crim. App. 1989). Counsel Sigel

conducted ineffective cross-examination of State’s witnesses when he elicited

harmful and aggravating testimony including extraneous offenses in questioning

witnesses. See Hutchinson v. State, 663 S.W.2d 610 (Tex. App.—Houston [1st

                                         41
Dist.] 1983, pet. ref’d); Ex Parte Walker, 777 S.W.2d 427 (Tex. Crim. App. 1989);

Montez v. State, 824 S.W.2d 308 (Tex. App.—San Antonio 1992, no pet.).

Counsel did not and could not make a sound strategic decision to elicit harmful and

aggravating testimony on cross-examination of State’s witnesses because he failed

to properly investigate and prepare for trial. See Ex Parte Wellborn, 785 S.W.2d

391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App.

1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy,

607 S.W.2d 507 (Tex. Crim. App. 1980). There is absolutely no plausible basis in

the strategy or tactic of Counsel Sigel’s eliciting harmful and aggravating

testimony on cross-examination of State’s witnesses. Ex parte Ewing, 570 S.W.2d

941, 945 (Tex. Crim. App. 1978). Counsel did not and could not make a sound

strategic decision to advancement of unreasonable strategies in front of the jury

because he failed to properly investigate and prepare for trial. See Ex Parte

Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d

943 (Tex. Crim. App. 1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App.

1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980).

      Counsel Sigel’s elicitation of this harmful and aggravating testimony on

cross-examination of State’s witnesses was due to the fact that he had not properly

investigated and reasonably prepared for the trial in Applicant’s case and was not

aware of the harmful and aggravating nature of the elicited testimony before he

                                        42
asked the questions, and the evidence was admitted in front of the jury, at trial. See

Trial Court’s Findings of Fact and Conclusions of Law. Assuming arguendo that

Counsel Sigel did intentionally elicit this harmful and aggravating testimony to

pursue the whole truth and to let every single piece of evidence in as part of his

“nickel defense,” that was not a reasonable or effective trial strategy in Applicant’s

case. Id. There is absolutely no plausible basis for the stated strategy or tactics of

Counsel Sigel’s elicitation of this harmful and aggravating testimony. Id.

      Counsel Sigel elicitation of this harmful and aggravating testimony on cross-

examination of State’s witnesses constituted deficient performance. Id. Counsel

Sigel’s elicitation of this harmful and aggravating testimony was not consistent

with and did not advance Applicant’s defensive strategy of mitigation. Id. The

admission of this harmful and aggravating testimony invited the State to argue to

start their punishment deliberations at a life sentence, the top of the range of

punishment, and “take off five” from the life sentence for every good thing they

had heard about Applicant from the evidence introduced at trial. See Applicant’s

Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law. The

admission of this harmful and aggravating evidence reinforced the State’s theory

that Applicant was a dangerous, unremorseful, privileged athlete from a good

family who had every advantage, was so poorly regarded that he didn’t have

anyone who recently had contact with him who was willing to testify to anything

                                         43
good about his character, and didn’t deserve leniency from the jury. See

Applicant’s Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of

Law.

       Applicant has shown that, but for trial counsel’s eliciting harmful and

aggravating testimony from witnesses that would not have otherwise been

presented to the jury, the result of the punishment proceeding would have been

different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466

U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840

S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland

standard).

(g) Counsel Sigel Failed to Properly Investigate Applicant’s Case and

Properly Prepare for Trial, Resulting in Counsel Employing and Advancing

Numerous Unreasonable Trial Strategies in Front of the Jury

       Counsel Sigel advanced the following unreasonable strategies in front of the

jury, Counsel Sigel: (a) asserted to the jury that voluntary intoxication is by itself

legally mitigating under existing Texas law and asked for a jury instruction so

stating – without ever attempting to allege or prove insanity; (b) questioned many

witnesses, and called defense mitigation witnesses, in a way that clearly advanced

the State’s theory that Applicant was a remorseless, privileged athlete from a good

                                         44
family who had every advantage and did not deserve leniency; (c) harassed and

humiliated witness Aurora Gonzales by making her state her bra size in front of the

jury and court, when this was not a contested issue of any kind at Applicant’s trial;

(d) failed to make any opening statement in punishment of Applicant’s trial,

leaving the State’s opening claims wholly unanswered, after telling the jury that he

would make an opening at the beginning of the defense’s case; (e) tormented

witness Haddad by making her recount the specific metals her deceased fiancé was

awarded in his service in Iraq when this was not a contested issue of any kind at

Applicant’s trial, causing her to become emotional in front of the jury and making

her even more sympathetic. See Applicant’s Writ Exhibits 15, 16, 17, 18, 19.

      Counsel Sigel’s assertions that he intentionally employed these unreasonable

strategies to pursue the truth and to let every single piece of evidence in as part of

his “nickel defense,” are not credible or reliable. See Writ Hearing R.R. at 53-62;

Trial Court’s Findings of Fact and Conclusions of Law.

      Ms. Lambert stated that she would not have utilized these unreasonable trial

strategies that Counsel Sigel employed in Applicant’s case. See Applicant’s Writ

Exhibit 3; Writ Hearing R.R. at 129-132. Ms. Lambert states that Counsel Sigel

employed these unreasonable strategies and that their employment did not advance

Counsel Sigel’s apparent trial strategy of mitigation. See Applicant’s Writ Exhibit

3; Writ Hearing R.R. at 129-132.

                                         45
      There is absolutely no plausible basis in the strategy or tactic of Counsel

Sigel’s advancement of unreasonable strategies in front of the jury. Ex parte

Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant has shown that,

but for trial counsel’s advancement of unreasonable strategies in front of the jury,

the result of the punishment proceeding would have been different. See Ex Parte

Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the

Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.

Crim. App. 1992) (defining the two-part Strickland standard).

      Counsel Sigel’s advanced the unreasonable strategies in front of the jury due

to the fact that he had not properly investigated and reasonably prepared for the

trial in Applicant’s case and was not aware of the harmful and aggravating nature

of the unreasonable strategies before he advanced them, and the evidence was

admitted in front of the jury, at trial. See Trial Court’s Findings of Fact and

Conclusions of Law. Assuming arguendo that Counsel Sigel did intentionally

advance the unreasonable strategies to “pursue the truth” and to let every single

piece of evidence in as part of his “nickel defense,” his actions were not reasonable

or effective trial strategy in Applicant’s case. Id. There is absolutely no plausible

basis for Counsel Sigel’s advancement of these unreasonable strategies. Id.

Counsel Sigel’s advancement of these unreasonable strategies in front of the jury

                                         46
constituted deficient performance. Id. Counsel Sigel’s advancement of these

unreasonable strategies was not consistent with and did not advance Counsel

Sigel’s apparent defensive strategy of mitigation. Id.

      The advancement of these unreasonable strategies invited the State to argue

to start their punishment deliberations at a life sentence, the top of the range of

punishment, and “take off five” from the life sentence for every good thing they

had heard about Applicant from the evidence introduced at trial. See Applicant’s

Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law. Counsel

Sigel’s advancement of these unreasonable strategies harmed Counsel Sigel’s

apparent trial strategy of mitigation, caused Applicant to lose credibility with the

jury, harassed witnesses, and alienated the jury. Id. Counsel Sigel’s advancement

of these unreasonable strategies reinforced the State’s theory that Applicant was a

dangerous, unremorseful, privileged athlete from a good family who had every

advantage, was so poorly regarded that he didn’t have anyone who recently had

contact with him who was willing to testify to anything good about his character,

and didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5;Trial

Court’s Findings of Fact and Conclusions of Law.

      Applicant has shown that, but for trial counsel’s failure to properly

investigate Applicant’s case and properly prepare for trial that resulted in counsel

employing and advancing numerous unreasonable trial strategies, the result of the

                                         47
punishment proceeding would have been different. See Ex Parte Cash, 178 S.W.3d

816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland standard in

Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992)

(defining the two-part Strickland standard).

(h) Counsel Sigel Failed to Investigate or Prepare the Defense’s Six Lay

Punishment Mitigation Witnesses and Had Ms. Lambert Leave the

Courtroom During Trial to Attempt to Quickly Conduct the Only

Preparation Ever Done with the Witnesses

      Counsel Sigel failed to investigate or properly prepare the defense’s six lay

punishment mitigation witnesses before Applicant’s trial. See Applicant’s Jury

Trial XIII R.R. at 16-36; XIV R.R. at 2-40; Trial Court’s Findings of Fact and

Conclusions of Law. Counsel Sigel’s assertions that he may have spoken with and

prepared the lay punishment mitigation witnesses by intentionally only advising

them to tell the truth are not credible or reliable. See Writ Hearing R.R. at 16-17,

27-28; Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel

admitted that he doesn’t always believe in interviewing and preparing character

witnesses to testify before calling them to the stand to testify. See Writ Hearing

R.R. at 99. Counsel Sigel admitted that sometimes he prepares witnesses regarding




                                         48
what to expect on cross-examination and sometimes he does not. See Writ Hearing

R.R. at 28.

      Ms. Lambert stated that Counsel Sigel never identified the lay witnesses to

her or asked her to contact, prepare, or present any lay witnesses before

Applicant’s trial. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 111. Ms.

Lambert stated that she became concerned with Counsel Sigel’s abilities during

trial and decided to interview and prepare the mitigation witnesses who were

present, who Counsel Sigel had failed to prepare, to testify during trial itself in an

attempt to protect Applicant’s rights. See Applicant’s Writ Exhibit 3; Writ Hearing

R.R. at 132-133. Ms. Lambert stated that she was unable to adequately prepare the

witnesses to testify in the short time she had to speak with them in the hallway. See

Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 132-135. Ms. Lambert stated that

Counsel Sigel’s failure to investigate and properly prepare these witnesses did not

advance Counsel Sigel’s apparent trial strategy of mitigation. See Applicant’s Writ

Exhibit 3; Writ Hearing R.R. at 132-135.

      Counsel Sigel failed to adequately prepare the mitigation witnesses to testify

at trial. Ex Parte Guzmon, 730 S.W.2d 724 (Tex. Crim. App. 1987). Counsel did

not and could not make a sound strategic decision not to adequately prepare the

mitigation witnesses to testify at trial because he failed to properly investigate and

prepare for trial. See Ex Parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990);

                                         49
Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App. 1982); Ex parte Raborn, 658

S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim.

App. 1980). There is absolutely no plausible basis in the strategy or tactic of

Counsel Sigel’s failure to adequately prepare the mitigation witnesses to testify at

trial. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant

has shown that, but for trial counsel’s failure to adequately prepare the mitigation

witnesses to testify at trial, the result of the punishment proceeding would have

been different.    See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v.

Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57

(Tex. Crim. App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v.

State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part

Strickland standard).

      Counsel Sigel’s failure to investigate and properly prepare the lay witnesses

was due to the fact that he had not properly investigated and reasonably prepared

for the trial in Applicant’s case and was not aware of what the witnesses knew or

would say before they took the stand and the evidence was admitted in front of the

jury at trial. See Trial Court’s Findings of Fact and Conclusions of Law. Assuming

arguendo that Counsel Sigel did intentionally only prepare the witnesses by

advising them to tell the truth to advance the unreasonable strategies to “pursue the




                                         50
truth” and to let every single piece of evidence in as part of his “nickel defense,”

his actions were not reasonable or effective trial strategy in Applicant’s case. Id.

      There is absolutely no plausible basis for the stated strategy or tactics of

Counsel Sigel’s failure to investigate and properly prepare the lay mitigation

witnesses. Id. Counsel Sigel failure to investigate or properly prepare the defense’s

six lay punishment mitigation witnesses in any manner before Applicant’s trial

constituted deficient performance. Id. Counsel Sigel’s failure to investigate and

properly prepare the lay mitigation witnesses was not consistent with and did not

advance Applicant’s defensive strategy of mitigation. Id. Counsel Sigel’s failure to

investigate and properly prepare the lay mitigation witnesses allowed the State to

bring out on cross examination that none of the witnesses were familiar with the

circumstances of the crimes Applicant had been convicted of and that witness

Schechter had not been close with Applicant in many years, witness Morrow had

not been close with Applicant in many years, and even Applicant’s own father had

only talked to him on the phone and seen him once or twice a year in the last ten

years. See Applicant’s Jury Trial XIII R.R. at 16-37; XIV R.R. at 2-40. Counsel

Sigel’s failure to investigate and properly prepare the lay mitigation witnesses

invited the State to argue that Applicant was trying to manipulate the jury into

showing mercy that he did not deserve by calling powerful politicians and that the

defense mitigation witnesses were worthless because, “(t)hey want to awe you with

                                          51
the title of these people so that you will look past what they were really telling you

when none of them have had any kind of quality interaction with him for the last

five years.” See Applicant’s Writ Exhibit 5; Trial Court’s Findings of Fact and

Conclusions of Law.

       Counsel Sigel’s failure to investigate and properly prepare the lay

mitigation witnesses harmed Counsel Sigel’s apparent trial strategy of mitigation,

caused Applicant to lose credibility with the jury, and left witnesses not properly

prepared to testify on direct and cross-examination. See Applicant’s Jury Trial XIII

R.R. at 16-37; XIV R.R. at 2-40; Trial Court’s Findings of Fact and Conclusions of

Law. Counsel Sigel’s failure to investigate and properly prepare the lay mitigation

witnesses invited the State to elicit testimony detrimental to Applicant from wholly

unprepared witnesses. See Applicant’s Jury Trial R.R. XIII R.R. at 16-37; XIV R.R.

at 2-40;Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel’s

failure to investigate and properly prepare the lay mitigation witnesses reinforced

the State’s theory that Applicant was a dangerous, unremorseful, privileged athlete

from a good family who had every advantage, was so poorly regarded that he

didn’t have anyone who recently had contact with him who was willing to testify

to anything good about his character, and didn’t deserve leniency from the jury.

See Applicant’s Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of

Law.

                                         52
      Applicant has shown that, but for trial counsel’s failure to properly

investigate and prepare the Defense’s six lay punishment witnesses, the result of

the punishment proceeding would have been different. See Ex Parte Cash, 178

S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez

v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland

standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App.

1992) (defining the two-part Strickland standard).

(i) Counsel Sigel Failed to Investigate and Call Witnesses Grayson West,

Brandon West, and Danielle Delgadillo

      Counsel Sigel failed to investigate and call witnesses Grayson West,

Brandon West and Danielle Delgadillo. See Writ Hearing R.R. at 16-30. The

affidavits of Grayson West, Brandon West, and Danielle Delgadillo are credible

and reliable. See Applicant’s Writ Exhibits 20, 21, 22; Trial Court’s Findings of

Fact and Conclusions of Law. Grayson West and Brandon West are Applicant’s

brothers and Danielle Delgadillo is Applicant’s childhood friend and all three

remained in close contact with Applicant throughout the time surrounding the

offenses and the trial. See Applicant’s Writ Exhibits 20, 21, 22. Grayson West,

Brandon West, and Danielle Delgadillo were willing and available to testify in

Applicant’s trial, both Grayson and Brandon were present in the courtroom during

trial, but that they were never contacted, interviewed, designated as witnesses, or

                                        53
called to the stand by Counsel Sigel in any manner. See Applicant’s Writ Exhibits

20, 21, 22; Writ Hearing R.R. at 16-30; Trial Court’s Findings of Fact and

Conclusions of Law. Grayson West, Brandon West, and Danielle Delgadillo had

ongoing, meaningful, close personal relationships with Applicant and would have

offered testimony that would have humanized him for the jury. See Applicant’s

Writ Exhibits 3, 20, 21, 22; Trial Court’s Findings of Fact and Conclusions of

Law.

       Counsel Sigel admitted that he did not know at the time of Applicant’s trial

that any witnesses existed who had ongoing, meaningful, close personal

relationships with Applicant and would have humanized him for the jury by

offering testimony that Applicant was off drugs and getting back to his true self.

See Writ Hearing R.R. at 25. Counsel Sigel admitted that he was not aware that

Grayson West had battled drug addiction throughout his life in much the same

manner as Applicant. See Writ Hearing R.R. at 27. Counsel Sigel admitted that the

reason that the jury sentenced Applicant to so much time was because “the jury

just didn’t know Damon West” at the end of the defense’s mitigation evidence. See

Writ Hearing Exhibit 25 at 75-76; Trial Court’s Findings of Fact and Conclusions

of Law.

       Grayson West, Brandon West, and Danielle Delgadillo would have each

testified to a high number of facts, each of which the jury could have counted as a

                                        54
“good thing,” about Applicant and used to take 5 years off of his sentence. See

Applicant’s Writ Exhibits 20, 21, 22; Applicant’s Writ Exhibit 5; Trial Court’s

Findings of Fact and Conclusions of Law.         The testimony of Grayson West,

Brandon West, and Danielle Delgadillo would have advanced Counsel Sigel’s

apparent strategy of mitigation. See Applicant’s Writ Exhibit 3; Writ Hearing R.R.

at 136-137; Trial Court’s Findings of Fact and Conclusions of Law.

      Ms. Lambert reviewed the three witnesses’ affidavits and stated that Counsel

Sigel never asked her to contact, prepare, or present any lay witnesses. See

Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 137. Ms. Lambert stated that

Counsel Sigel did not call the three, above listed, witnesses and that she believes

that they could have been helpful in humanizing Applicant and in providing insight

into the defense’s mitigation evidence. See Applicant’s Writ Exhibit 3; Writ

Hearing R.R. at 137. Ms. Lambert stated that the decision to not interview and call

these witnesses was made by Counsel Sigel without consulting her and that the

failure to call the witnesses did not advance Counsel Sigel’s sworn trial strategy of

mitigation. See Exhibit 3; Writ Hearing R.R. at 137.

      Counsel Sigel’s assertions that he had not investigated and called the three

mitigation witnesses to testify because Applicant did not testify are not credible or

reliable. See Writ Hearing R.R. at 22, 24; Trial Court’s Findings of Fact and

Conclusions of Law. Counsel Sigel’s assertions that he strongly advised and

                                         55
repeatedly requested that Applicant testify at his trial are not credible or reliable.

See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 87, 92, 141-142, 144-145,

147-148;Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel

stated that when he allegedly spoke to Applicant about possibly testifying he did

not believe that Applicant understood what he was saying to him at that time. See

Writ Hearing R.R. at 18-19, 87-88; Trial Court’s Findings of Fact and

Conclusions of Law. Counsel Sigel admitted that Ms. Lambert was sitting next to,

and present with, Applicant during the entire trial. See Writ Hearing R.R. at 39.

      Ms. Lambert stated that though she was present for all of the conversations

between Counsel Sigel and Applicant at trial that she never once heard Counsel

Sigel advise, ask, or beg Applicant to testify at his trial. See Applicant’s Writ

Exhibit 3; Writ Hearing R.R. at 144-145, 147-148. Ms. Lambert was not aware of

or present for any efforts on Mr. Sigel’s part to prepare Applicant to testify at trial

in any manner. See Writ Hearing R.R. at 144-145, 147-148. Ms. Lambert stated

that it is not a reasonable or good strategy for Counsel Sigel to have not called

these three mitigation witnesses in Applicant’s trial because Applicant did not

testify. See Writ Hearing R.R. at 153-154. Ms. Lambert stated that she believed

that there was a chance that the jury would have given Applicant probation based

on his possible mitigation presentation. Writ Hearing R.R. at 149-150.




                                          56
      Counsel did not and could not make a sound strategic decision to not call

Brandon West, Grayson West, and Danielle Degadillo because he failed to

investigate and interview the witnesses. See Wiggins v. Smith, 539 U.S. 510

(2003); Milburn v. State, 15 S.W.3d 267 (Tex. App. – Houston [14th Dist.] 2000,

pet. ref’d.). There is absolutely no plausible basis in the strategy or tactic of

Counsel Sigel’s failure to investigate and call mitigation witnesses Brandon West,

Grayson West, and Danielle Degadillo. Ex parte Ewing, 570 S.W.2d 941, 945

(Tex. Crim. App. 1978). The testimony of Brandon West, Grayson West, and

Danielle Degadillo was admissible and would have provided some counterweight

to evidence of bad character which was in fact received by the jury. See Blake v.

Kemp, 758 F.2d 523, 535 (11 th Cir.1985), cert. denied, 474 U.S. 998, 106 S.Ct.

374, 88 L.Ed.2d 367 (1985). The jury would have considered the testimony of

Brandon West, Grayson West, and Danielle Degadillo and possibly been

influenced by it. See Milburn v. State, 15 S.W.3d 267 (Tex. App. – Houston [14th

Dist.] 2000, pet. ref’d.); Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983).

Applicant has shown that, but for Counsel Sigel’s failure to investigate and call

mitigation witnesses Brandon West, Grayson West, and Danielle Degadillo there is

a reasonable probability that the result of the punishment proceeding would have

been different. Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington,

466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

                                        57
App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840

S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland

standard).

      Counsel Sigel’s failure to investigate and call the three witnesses was due to

the fact that he had not properly investigated and reasonably prepared for the trial

in Applicant’s case and was not aware of what the witnesses knew or would say if

they took the stand. See Trial Court’s Findings of Fact and Conclusions of Law.

Assuming arguendo that Counsel Sigel did intentionally decide to not call the three

witnesses because the Applicant was not going to testify, his actions were not

reasonable or effective trial strategy in Applicant’s case. Id. There is absolutely no

plausible basis for the stated strategy or tactic of Counsel Sigel’s failure to

investigate and call the three mitigation witnesses. Id.

      Counsel Sigel’s failure to investigate and call the three mitigation witnesses

to testify in Applicant’s case constituted deficient performance. Id. Counsel Sigel’s

failure to investigate and call the three mitigation witnesses was not consistent with

and did not advance Applicant’s defensive strategy of mitigation. Id. Counsel

Sigel’s failure to investigate and call the three mitigation witnesses resulted in

Counsel Sigel only calling witnesses who had not had any truly meaningful contact

with Applicant in the years around the offenses, were high-profile political

contacts of Applicant’s father who had not spoken to Applicant in years, and who

                                          58
knew nothing current about Applicant. See Applicant’s Writ Exhibit 5; Applicant’s

Jury Trial XIII R.R. at 16-37; XIV R.R. at 2-40; Trial Court’s Findings of Fact and

Conclusions of Law.

      Counsel Sigel’s failure to investigate and call the three mitigation witnesses

invited the State to argue that Applicant was trying to manipulate the jury into

showing mercy that he did not deserve by calling powerful politicians and that the

defense mitigation witnesses were worthless because, “(t)hey want to awe you with

the title of these people so that you will look past what they were really telling you

when none of them have had any kind of quality interaction with him for the last

five years.” See Applicant’s Writ Exhibit 5. Counsel Sigel’s failure to investigate

and call the three mitigation witnesses invited the State to argue the jury should

start their punishment deliberations at a life sentence, the top of the range of

punishment, and “take off five” from the life sentence for every good thing they

had heard about Applicant from the evidence introduced at trial. See Applicant’s

Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law.

      Counsel Sigel’s failure to investigate and call the three mitigation witnesses

reinforced the State’s theory that Applicant’s recorded phone calls were an

accurate reflection of his true evil personality, that his brothers were angry with

him, that they (especially baby brother Grayson) should be counted by the jury as

victims of his most egregious crimes, and that Applicant had no empathy for

                                         59
anyone including his own brothers. See Applicant’s Writ Exhibit 5.          Counsel

Sigel’s failure to investigate and call the three mitigation witnesses reinforced the

State’s theory that Applicant was a dangerous, unremorseful, privileged athlete

from a good family who had every advantage, was so poorly regarded that he

didn’t have anyone who recently had contact with him who was willing to testify

to anything good about his character, and didn’t deserve leniency from the jury.

See Trial Court’s Findings of Fact and Conclusions of Law.

      Had Counsel Sigel properly investigated and called the three mitigation

witnesses they would have testified to numerous “good things” about Applicant

(included in their affidavits attached to Applicant’s writ as Exhibits 20, 21, and

22), the jury would have bee able to use them to follow the State’s direction and

“take off five” for every good thing they heard about Applicant, and sentence

Applicant to a lower number of years in prison. Glover v. United States, 531 U.S.

198, 203, 121 S.Ct. 696, 700, 148 L.Ed.2d 604 (2001). The affidavits include

numerous “good thing(s)” which would have resulted in a reduction in prison time

of five years each. Id. Applicant has shown that, but for trial counsel’s failure to

properly investigate call witnesses Grayson West, Brandon West, and Danielle

Delgadillo, the result of the punishment proceeding would have been different. See

Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686

(1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting

                                         60
the Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.

Crim. App. 1992) (defining the two-part Strickland standard).

(j) Totality of Counsel Sigel’s Representation of Applicant

      The totality of Counsel Sigel’s representation of Applicant fell below the

objective standard of reasonableness and was therefore deficient. See Trial Court’s

Findings of Fact and Conclusions of Law. But for Counsel Sigel’s errors, there is a

reasonable probability that Applicant would have been sentenced to less than sixty-

five (65) years in the Texas Department of Criminal Justice in the primary case.

Applicant’s sixty-five (65) year sentence is not worthy of confidence. Id. Counsel

Sigel was not functioning as counsel as guaranteed by the United States Constitution

and Counsel Sigel’s deficient performance prejudiced Applicant. Id. Applicant has

met his burden of proving by a preponderance of the evidence that he was denied the

effective assistance of counsel in the punishment trial of this case. Id.

        Applicant has shown that Counsel Sigel acted in a deficient manner which

resulted in prejudice in the punishment trial in his case. Strickland v. Washington,

466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986) (adopting the Strickland standard in Texas); Narvaiz v. State, 840 S.W.2d

415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland standard); and

Hernandez v. State, 988 S.W. 2d 770 (Tex. Crim. App. 1999) (adopting the two-

part Strickland standard for evaluating ineffective assistance of counsel at the

                                           61
punishment stage of noncapital trials).

      The totality of the representation afforded to Applicant was not sufficient to

protect his right to reasonably effective assistance of counsel. See Trial Court’s

Findings of Fact and Conclusions of Law. Applicant has succeeded in

demonstrating that he has been prejudiced by counsel’s deficient actions because

they resulted in Applicant being sentenced to an additional amount of time in

prison. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 700, 148

L.Ed.2d 604 (2001). In all things Applicant has succeeded in demonstrating that

his sentence was improperly obtained and that he is being improperly confined.

      The Applicant has proven, by a preponderance of evidence, that trial

counsel’s deficient performance, should undermine any confidence this Court

could have in the verdict. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984). The Applicant requests that this Court exercise

its authority to adopt the Trial Court’s findings and conclusions, and find that trial

counsel’s performance was deficient and that the prejudice prong of Strickland in

this regard has been satisfied.

                                     PRAYER

      For the reasons stated above, as well as for those reasons stated previously,

the Applicant pays that this Court GRANT relief in the form of A NEW

PUNISHMENT TRIAL.

                                          62
                                        Respectfully submitted,




                                              /s/ Chip B. Lewis
                                        CHIP LEWIS
                                        State Bar of Texas Number 00791107
                                        ALICIA DEVOY ONEILL
                                        State Bar of Texas Number 24040801
                                        1207 South Shepherd Drive
                                        Houston, Texas 77019
                                        (713)-523-7878
                                        (713)-523-7887 (FAX)

                                        ATTORNEY FOR APPLICANT




                             CERTIFICATE OF SERVICE

      I certify that I provided a copy of the foregoing brief to the Dallas County

District Attorney by mailing it to Lori Ordiway, Chief of the Appellate Division,

via first class mail and e-serving on the day the brief was e-filed.




                                                    /s/ Chip B. Lewis
                                               Chip B. Lewis




                                          63
                          CERTIFICATE OF COMPLIANCE



      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief

complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i):

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this

brief contains 14,087 words printed in a proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced typeface using Times New

Roman 14 point font in text and Time New Roman 12 point font in footnotes.

3.    Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R.

App. Proc. 9.4(j), may result in the Court's striking this brief and imposing

sanctions against the person who signed it.


                                                   /s/ Chip B. Lewis
                                              Chip B. Lewis




                                         64
                                               APPENDIX



Order Appointing April Smith..................................................................................A

Motion to Recuse, Order of Recusal, and Order of Assignment .............................. B

Trial Court’s Proposed Findings of Fact and Conculsion of Law ............................ C




                                                      65
A
B
C
