                  WR-81,346-01
   COURT OF CRIMINAL APPEALS
                    AUSTIN, TEXAS
 Transmitted 3/25/2015 2:51:56 PM
   Accepted 3/25/2015 3:10:07 PM
                     ABEL ACOSTA
                             CLERK

       RECEIVED
COURT OF CRIMINAL APPEALS
       3/25/2015
  ABEL ACOSTA, CLERK
             IN THE TEXAS COURT OF CRIMINAL APPEALS
                         AT AUSTIN, TEXAS


EX PARTE                              §
                                      § CAUSE No. WR-81,346-01
ERNEST VILLANUEVA                     §

                       IN THE 83rd DISTRICT COURT
                        OF PECOS COUNTY, TEXAS

EX PARTE                              §
                                      § CAUSE No. P-2664-83-CR
ERNEST VILLANUEVA                     §


 APPLICANT’S OBJECTIONS TO THE TRIAL COURT’S FINDINGS OF
    FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:


       Comes now Ernest Villanueva, applicant in the above cause and would

show this Honorable Court the following:


                  Chronology of the Underlying Proceedings


      Villanueva was indicted in a twelve count indictment for two offenses of

aggravated sexual assault and ten offenses of indecency with a child by contact




                                       -1-
(CR 2)1. Following a motion to severe, trial was had on count two alleging the

offense of aggravated sexual assault (3 RR 8). A jury was selected and sworn (3

RR 185). Villanueva entered a plea of not guilty (4 RR 11). The jury found

Villanueva guilty (4 RR 146). Rejecting his plea for community supervision, the

same jury assessed punishment at 50 years (4 RR 192).


      Notice of appeal was timely filed (CR 123). The conviction was affirmed on

direct appeal by the Eighth Court of Appeals in an unpublished memorandum

opinion. Villanueva v. State, 2008 WL 2545053 (Tex. App. – El Paso, 2008, pet.

ref’d). Villanueva sought discretionary review from the Texas Court of Criminal

Appeals. His petition for discretionary review was refused on November 26, 2008,

in cause number PD-0976-08.


                     Chronology of the Habeas Proceeding


      On November 12, 2013, Villanueva filed an application for writ of habeas

corpus in the convicting court pursuant to TEX. CRIM. PROC. CODE art. 1107

(WCR 148-159). The application sought relief on the basis Villanueva was denied

the effective assistance of counsel due to 18 acts of deficient performance and


1
  “CR” refers to the clerk’s record in the underlying record on appeal. “RR” refers
to the reporter’s record in the underlying record on appeal. “WCR” refers to the
clerk’s record in the instant habeas corpus action.
                                         -2-
resulting cumulative prejudice. A memorandum of law in support of the

application was filed (WCR 160-206). Exhibits were filed in support of the

application (WCR 124-147). This is Villanueva’s first post-conviction application

for a writ of habeas corpus under TEX. CRIM. PROC. CODE art. 11.07.


      No answer was filed or order entered by the convicting court. The

application was received by this Court on May 8, 2014, and assigned cause number

WR-81,346-01.


      On June 25, 2014, the cause was remanded to the trial court for trial counsel

to respond to the acts of deficient performance alleged in acts five through fourteen

and sixteen through eighteen. The trial court was additionally ordered to enter

findings and conclusions in relation to Villanueva’s claim of ineffective assistance

of counsel.


      Trial counsel filed his affidavit in the convicting court on August 12, 2014

(2nd Supp. WCR 2-4). The trial court entered its order, findings, conclusions, and

recommendation on January 8, 2015 (1st Supp. WCR 2-58).


      On February 17, 2015, this Court granted Villanueva’s motion to hold the

application pending the filing of objections to the trial court’s order, findings,


                                         -3-
conclusions, and recommendation. The objections are due in the convicting court

by April 6, 2015. They are timely filed by the instant pleading.


                        Ground for Habeas Corpus Relief


Villanueva was denied the effective assistance of counsel during trial as a
result of counsel’s multiple acts of deficient performance resulting in
prejudice.


                   Remanded Acts of Deficient Performance2


      Trial counsel H. Thomas Hirsch engaged in multiple acts of deficient

performance including the following:


5. Failing to voice a TEX. R. EVID. 403 objection to extraneous conduct
involving complainant as contained within defendant’s statement after the
prosecutor pointed out that 403 was the only viable objection ( 3 RR 12, 3 RR
212).


      Before trial, counsel for Villanueva sought to prevent the State from

mentioning any offense as set forth in his confession other than the aggravated

sexual assault alleged in count two of the indictment (3 RR 8-9). The prosecutor

responded that under TEX. CRIM. PROC. CODE art. 38.37, the other offenses were

2
  By this pleading, Villanueva will focus on the 13 acts of deficient performance
remanded to the trial court by this Court’s order of June 25, 2014. Villanueva
continues to assert the other five grounds of deficient performance and relies on his
original pleadings as filed in the convicting court and this Court.
                                         -4-
admissible at trial (3 RR 9). The prosecutor reminded defense counsel that the

only conceivable objection would be pursuant to TEX. R. EVID. 403 (3 RR 10).

Inexplicably, counsel for Villanueva did not voice an objection under TEX. R.

EVID. 403. The trial court overruled counsel’s unspecified objection (3 RR 55).

When the statement was admitted at trial, the trial court granted a running

unspecified objection to incidents of abuse other than the single incident mentioned

in the indictment (3 RR 212).


      On direct appeal, Villanueva claimed the trial court abused its discretion by

admitting the other incidents of abuse over a TEX. R. EVID. 403 objection. The

Court of Appeals rejected the claim after noting trial counsel failed to preserve the

matter at trial by voicing an objection under TEX. R. EVID. 403. Villanueva, 2008

WL 2545053, at *5.


      Within his affidavit, trial counsel states he presented an oral motion in

limine seeking to exclude the evidence (2nd Supp. WCR 2). Counsel fails to

address the claim presented. He does not state the reasons he failed to voice a

TEX. R. EVID. 403 objection to the evidence. He likewise fails to acknowledge the

well-known rule that an adverse ruling on a motion in limine does not preserve

error in the admission of evidence.


                                        -5-
      In this case, trial counsel for Villanueva made no effort to exclude the

extraneous offenses as contained within the statement he provided to the

authorities. Even though the prosecutor told him the only viable objection which

could be voiced, counsel failed to urge it. Villanueva maintains counsel’s

performance with respect to seeking exclusion of the extraneous offenses

mentioned within his statement was deficient.


      The trial court concludes that even if counsel voiced a rule TEX. R. EVID.

403 objection, it would have been overruled and counsel cannot be ineffective for

failing to voice an objection which would have been overruled (1st Supp. WCR

23). Villanueva asserts the conclusion is not supported by counsel’s affidavit that

he thought he preserved the matter by a motion in limine and the Court of Appeals

determination nothing was preserved for review. Villanueva further maintains that

had the matter been properly preserved at trial, the conviction would have been

reversed on appeal for the 403 error in the admission of the evidence.


6. Failing to recall the complainant once a police report showed the
complainant did not tell a police officer of the bouncing incident when she
talked to her the day before her forensic interview.


      J.G. was interviewed by Lisa Tarango of the Fort Stockton Police

Department after J.G. made an outcry to her mother (4 RR 111). During that

                                        -6-
interview, J.G. told the officer that Villanueva had penetrated her, but she said

nothing of the alleged bouncing incident (4 RR 112). The following day, J.G. was

taken to Harmony House and interviewed by Kennedy (4 RR 112). It was during

the forensic interview with Kennedy that J.G. recounted the alleged bouncing

incident (4 RR 112).


      Counsel for Villanueva knew nothing of Tarango’s investigation until trial

(4 RR 106-109). Indeed, she was on the panel of prospective jurors and released

only after the prosecutor told counsel that she had been involved in the

investigation and probably should not serve on the jury (3 RR 16-18).


      During counsel’s original cross-examination of J.G., she mentioned she had

provided a statement to Tarango (4 RR 104). Apparently forgetting that the

prosecutor had told him that Tarango was involved in the investigation, counsel

asked “And who is that?” (4 RR 104). Tarango’s investigative notes were

eventually secured and introduced for purposes of the record (4 RR 117, 5 RR

DEX 1 and 2).


      Villanueva now complains that counsel should have recalled J.G. for further

cross-examination once her interview with Tarango was belatedly revealed at trial.



                                         -7-
Her failure to tell Tarango in the first instance of the bouncing incident would have

been powerful evidence on cross-examination.


      Within his affidavit, trial counsel states there was no reason to recall J.G. for

further cross-examination because the bouncing incident was not relevant to the

allegation of sexual intercourse (2nd Supp. WCR 3). He notes Villanueva was

charged with have unlawful intercourse with the child and the offense had nothing

to do with bouncing (2nd Supp. WCR 3).


      The record reflects otherwise. J.G. testified to an incident in which she got

on top of Villanueva and bounced while his private was in her bunny (4 RR 91).

No strategic or tactical reason can excuse counsel’s failure to present the evidence

at trial. Counsel’s performance demonstrates a failure to investigate the case

before trial and then use evidence he stumbled across. Deficient performance is

shown.


      The trial court concludes no deficient performance is shown because the

child could not have been cross-examined about the bouncing incident to which

she had not previously testified (1st Supp. WCR 24). Villanueva maintains the

conclusion is not supported by the record. J.G. testified to an incident in which she

got on top of Villanueva and bounced while his private was in her bunny (4 RR

                                         -8-
91). She had not told the initial investigation officer, Officer Tarango, of the

incident and revealed it for the first time to the forensic examiner. No explanation

is offered for counsel’s failure to challenge the consistency and detail of J.G.’s

accusations against Villanueva.


7. Failing to request an election by the State in view of the multiple acts of
assault recounted by complainant (4 RR 106).


      Here, the State introduced testimonial evidence of more than the one

instance of sexual assault alleged in Villanueva’s indictment. J.G.’s testimony

reflects incidents of sexual assault involving penile penetration from the age of five

to the age of 12 while in her fifth grade of school (4 RR 93-95). In spite of those

multiple incidents as reflected by the trial evidence, counsel for Villanueva made

no request for the State to elect a single incident upon which it was seeking a

conviction.


      Absent a request for an election, the prosecutor argued that Villanueva must

have penetrated J.G.’s sexual organ with his penis during some point in their eight

year relationship (4 RR 140-141). The prosecutor reminded the jury the State was

not bound by the dates in the indictment (4 RR 142). Referring to Villanueva’s

statement that he got on top of J.G. with an erect penis five times, the prosecutor


                                         -9-
asserted a guilty verdict was warranted if penetration occurred at any time (4 RR

142).


        The record reflects that following a motion to sever, trial proceeded on count

two of a twelve count indictment (3 RR 8). In view of the severance, counsel

maintains there was no need to urge an election at trial for the multiple offenses

shown while proving count two (2nd Supp. WCR 3). Trial counsel’s affidavit

reflects a fundamental misunderstanding of the law of election. Counsel fails to

acknowledge the multiple instances of abuse proven during trial or explain his

failure to seek an election on which of those instances the State would rely for a

conviction. Villanueva maintains the failure to seek an election was an act of

deficient performance.


        Initially, the trial court concludes the prosecutor made an election at trial to

proceed on the bouncing incident in seeking a conviction (1st Supp. WCR 25).

Villanueva disputes that an election was made by the prosecutor at trial. The lack

of an election is shown by the argument by the prosecutor reminding the jury the

State was not bound by the dates in the indictment (4 RR 142); referring to

Villanueva’s statement that he got on top of J.G. with an erect penis five times; and




                                          - 10 -
asserting a guilty verdict was warranted if penetration occurred at any time (4 RR

142).


        In its conclusions, the trial court reframes the issue as one of jury charge

error and determines the failure to show egregious harm is fatal to Villanueva’s

claim (1st Supp. WCR 26-31). Villanueva maintains the conclusion is misdirected.

His claim is one of ineffective counsel who should have requested an election at

trial. Egregious harm resulting from charge error is alien and irrelevant to a

prejudice determination on a claim of ineffective assistance of counsel. It is

improper to use counsel’s own act of deficient performance to apply a more

onerous and irrelevant standard of review, egregious harm, to a claim of ineffective

assistance of counsel.


8. Failing to object that the charge did not require a unanimous verdict on a
particular incident (4 RR 120).


        The second count of the indictment alleges that between December 31, 1997,

and June 1, 2003, Villanueva penetrated the sexual organ of J.G., a child younger

than 14 years of age, with his sexual organ (CR 2). J.G. was born on December

31, 1991, and was 14 years of age at the time of trial (4 RR 90). She testified that

Villanueva began to sexually abuse her when she was five years old (4 RR 93). He

penetrated her sexual organ with his sexual organ until she turned 12 years of age
                                       - 11 -
(4 RR 95). He stopped penetrating her with his penis when she began to

menstruate in the fifth grade (4 RR 95). The court instructed the jury it was not

bound by the date in the indictment (CR 96). Although instructing the jury that its

verdict must be unanimous, the charge did not instruct the jury it was required to

unanimously agree on a particular incident before returning a verdict of guilty (CR

99).


       Trial counsel’s affidavit does not address this act of deficient performance

(2nd Supp. WCR 2-4).


       Villanueva asserts non-unanimity may occur when the State charges one

offense and presents evidence that the defendant committed the charged offense on

multiple but separate occasions. Such was the case here. Each of the multiple

incidents individually establishes a different offense or unit of prosecution. The

judge's charge, to ensure unanimity, should have instructed the jury that its verdict

must be unanimous as to a single offense or unit of prosecution among those

presented.


       Counsel failed to voice an objection to the charge on the basis it allowed a

non-unanimous verdict. That failure was an act of deficient performance.



                                        - 12 -
      The trial court concludes only one act of sexual assault was presented to the

jury and the absence of a unanimity instruction did not result in egregious harm (1st

Supp. WCR 33). Villanueva asserts the conclusion is erroneous in view J.G.’s

testimony that Villanueva began to sexually abuse her when she was five years old

(4 RR 93). He penetrated her sexual organ with his sexual organ until she turned

12 years of age (4 RR 95). The record shows multiple acts of assault and no effort

by counsel assure the jury was charged it must unanimously agree on a particular

act. Moreover, egregious harm resulting from charge error is alien and irrelevant

to a prejudice determination on a claim of ineffective assistance of counsel.


9. Failing to object that the guilt innocence charge contained no instructions
on extraneous offenses (4 RR 120).


      The trial court’s charge to the jury contained no instructions on extraneous

offenses (CR 95). Counsel for Villanueva neither requested such charge nor

objected to the absence of such charge.


      Trial counsel states he did not request a charge on extraneous offense due to

the complainant’s testimony and Villanueva’s statement (2nd Supp. WCR 3).


      Villanueva maintains trial counsel’s assertion is nonsensical. The law is

well settled that a defendant is entitled to an instruction that limits the jury’s

                                          - 13 -
consideration of an extraneous offense or prior bad act to the purpose or purposes,

for which it is being offered, both when the evidence is first offered, and in the

court’s charge to the jury.


      Villanueva concedes that without a TEX. R. EVID. 403 objection in this case,

the extraneous offenses were admissible to show state of mind of Villanueva and

J.G. as well as their previous and subsequent relationship. See TEX. CRIM. PROC.

CODE art. 38.37. However, the extraneous offenses of indecency and sexual

assault were not so limited in the charge actually given to the jury.


      Due to counsel’s ineptness, the jury was free to consider the extraneous

offenses for any purpose including character conformity. Moreover, had counsel

sought an election, the extraneous offenses could have been designated extraneous

and their admission limited accordingly within the court’s charge. Counsel’s

failure to request this critical instruction could not have been the product of a

reasonable trial strategy and thus, was objectively deficient.


      Without addressing the act of deficient performance, the trial court

concludes the charge should have included instructions on extraneous offenses

admitted at the guilt or innocence stage of trial (1st Supp. WCR 34). However, it

further concludes Villanueva did not suffer egregious harm from the error in the

                                         - 14 -
charge (1st Supp. WCR 39-40). Villanueva maintains the conclusion is

misdirected. His claim is one of ineffective counsel who should have prevented

charge error at trial. Egregious harm resulting from charge error is alien and

irrelevant to a prejudice determination on a claim of ineffective assistance of

counsel. It is improper to use counsel’s own act of deficient performance to apply

a more onerous and irrelevant standard of review to a claim of ineffective

assistance of counsel.


10. Failing to request a charge on the lesser offense of indecency by contact as
supported by Villanueva’s statement (4 RR 120).


      Counsel at trial voiced no objection to the guilt or innocence charge to the

jury (4 RR 120). In argument, he urged the jury to believe everything in the

confession which merely showed commission of the offense of indecency with a

child (4 RR 132). Counsel claimed Villanueva would have pleaded guilty to

indecency with a child if that was the offense with which he was charged (4 RR

135). Inexplicably, counsel made no effort to include the lesser offense of

indecency with a child in the court’s charge.


      Trial counsel states he did not request a charge on the lesser included offense

of indecency with a child by conduct because it is not a lesser included offense of

aggravated sexual assault of child (2nd Supp. WCR 3).
                                        - 15 -
      Counsel is mistaken. See Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim.

App. 2009) (finding indecency with a child is a lesser included offense of

aggravated sexual assault).


      No strategic reason could justify counsel’s failure to request a charge on the

lesser offense. Counsel’s failure to request a lesser-included offense instruction

fell below an objective standard of reasonableness and constituted an act of

deficient performance.


      At the outset, the trial court concludes the evidence at trial was sufficient to

support Villanueva’s conviction for aggravated sexual assault (1st Supp. WCR 41).

It therefore reasons the result of the proceeding would not have been different even

if counsel had requested a charge on the lesser offense of indecency by contact (1 st

Supp. WCR 41). Villanueva disagrees with the court’s conclusion. He does not

have a burden to show the result would have been different, only the reasonable

possibility of a different result. Moreover, sufficiency of the evidence on the

greater charge has no impact on counsel’s failure to request a charge on a lesser

offense supported by the evidence. The failure to request the charge denied the

jury the opportunity to consider and convict of the lesser offense which should

have been requested.


                                        - 16 -
      The trial court further concludes no lesser charge was warranted because no

evidence was presented at trial showing Villanueva merely contacted J.G.’s sexual

organ with his penis without penetration (1st Supp. WCR 44). The conclusion is

not supported by the record. Villanueva’s statement to law enforcement was

admitted at trial (4 RR 19, 5 RR SX 1). Within that statement, he claimed he got

on top of J.G. on multiple occasions, his penis was hard, she was naked, he was

naked, and he never put his penis in her sexual organ. Villanueva maintains his

statement supported the lesser charge of indecency by contact which should have

been requested by trial counsel.


11. Admitting guilt in jury argument for no strategic reason when he asserted
Villanueva would have pleaded guilty to indecency by contact (4 RR 135).


12. Admitting guilt in argument for no strategic reason when he asserted that
based on Villanueva’s statement, he would have pleaded guilty to penetration
of J.G.’s sexual organ with his finger (4 RR 135 -136).


      On two occasions during jury argument at the guilt or innocence phase of

trial, Hirsch admitted Villanueva’s guilt for no strategic reason. First, he urged the

jury to believe Villanueva’s confession which merely showed the offense of

indecency by contact (4 RR 132). As asserted above, counsel made no effort to

ensure the jury was charged on the lesser offense of indecency by contact. Absent


                                        - 17 -
inclusion of that lesser offense, a concession of guilt could serve no legitimate

benefit to Villanueva.


      Secondly, counsel asserted that based on his confession, Villanueva would

have pleaded guilty to aggravated sexual assault by penetrating the complainant’s

sexual organ with his finger (4 RR 136). The argument was misdirected and

unsupported by the confession because Villanueva was adamant in his confession

that he never penetrated J.G.’s sexual organ by any means (4 RR 27-30, 5 RR SX

1).


      Trial counsel states he made the argument based on Villanueva’s statement

which had been admitted into evidence (2nd Supp. WCR 3).


      The offered justification is not supported by the record. Counsel made no

effort to have the jury instructed on the lesser offense of indecency with a child by

contact. Moreover, Villanueva was adamant in his statement that he had never

penetrated the complainant.


      Admitting guilt in the presence of the jury serves no strategic or tactical

purpose and is an act of deficient performance. Likewise, misstating the facts and

arguing defensive theories not supported by the evidence is deficient performance.


                                        - 18 -
Counsel engaged in two acts of deficient performance during jury argument at the

guilt or innocence phase of trial by admitting guilt.


      The trial court concludes Villanueva was not harmed by counsel’s conduct

because he was not on trial for the offenses for which counsel said Villanueva was

guilty and the conduct was not outrageous (1st Supp. WCR 45). Villanueva

disagrees. In a case alleging sexual abuse of a child, it is objectively unreasonable

for counsel to argue the defendant did in fact sexually abuse the child in two

different ways, just not in the manner claimed by the State.


13. Failing to object to State’s argument urging a non-unanimous verdict if
Villanueva penetrated J.G. anytime in an eight year period (4 RR 142).


      As explained above, counsel deficiently failed to request an election by the

State and then failed to object to the court’s charge which did not require a

unanimous jury verdict for a particular incident.


      Those errors of performance were exacerbated when counsel for Villanueva

failed to object to the State’s invitation for the jury to return a non-unanimous

verdict of guilty on some incident occurring during the course of an eight year

period. The prosecutor argued that Villanueva must have penetrated J.G.’s sexual

organ with his penis during some point in their eight year relationship (4 RR 140-

                                        - 19 -
141). The prosecutor reminded the jury the State was not bound by the dates in the

indictment (4 RR 142). Referring to Villanueva’s statement that he got on top of

J.G. with an erect penis five times, the prosecutor asserted a guilty verdict was

warranted if penetration occurred at any time (4 RR 142).


      Trial counsel offers no explanation of this act of deficient performance (2nd

Supp. WCR 2-4).


      Seizing on the lack of an election and charge which did not require a

unanimous verdict, the State specifically invited the jury to return a non-

unanimous verdict as to a single offense of penetration. That argument was

contrary to the law and should have been the subject of an objection by counsel for

Villanueva. His failure to object was an act of deficient performance.


      In its conclusions, the trial court reframes the issue as one of jury charge

error and determines the failure to show egregious harm is fatal to Villanueva’s

claim (1st Supp. WCR 26-31). Villanueva maintains the conclusion is misdirected.

His claim is one of ineffective counsel who should have objected when the

prosecutor urged and invited the jury to return a non-unanimous verdict.

Egregious harm resulting from charge error is alien and irrelevant to a prejudice

determination on a claim of ineffective assistance of counsel. It is improper to use

                                        - 20 -
counsel’s own act of deficient performance to apply a more onerous and irrelevant

standard of review, egregious harm, to his claim of ineffective assistance of

counsel.


14. Failing to object to the punishment charge which contained no charge on
extraneous offenses (4 RR 166).


      Extraneous offenses were admitted at the punishment phase from both

Ramirez and J.G. (4 RR 149, 4 RR 155). Despite the admission of such evidence,

the trial court did not instruct the jury that it could not consider extraneous offenses

unless they were proved beyond a reasonable doubt (CR 102). Counsel for

Villanueva neither requested the instruction nor objected to its omission (4 RR

166). Indeed, the record reflects counsel was not familiar with the State’s 404(b)

notice at trial (4 RR 151).


      Trial counsel fails to respond to this act of deficient performance in his

affidavit (2nd Supp. WCR 2-4).


      Villanueva was entitled to the instruction even without a request. Rather

than bring the error to the court’s attention, counsel inexplicably stood mute and

allowed the trial court to erroneously fail to charge the jury on consideration of

extraneous offenses. Counsel’s failure to request this critical instruction could not

                                         - 21 -
have been the product of a reasonable trial strategy and thus, was objectively

deficient.


      Without addressing the act of deficient performance, the trial court

concludes the charge should have included instructions on extraneous offenses at

the punishment phase (1st Supp. WCR 36). However, it further concludes

Villanueva did not suffer egregious harm from the error in the charge (1st Supp.

WCR 39-40). Villanueva maintains the conclusion is misdirected. His claim is

one of ineffective counsel who should have prevented charge error at trial.

Egregious harm resulting from charge error is alien and irrelevant to a prejudice

determination on a claim of ineffective assistance of counsel. It is improper to use

counsel’s own act of deficient performance to apply a more onerous and irrelevant

standard of review to a claim of ineffective assistance of counsel.


16. Failing to present an expert witness during the punishment phase of trial
who would have shown Villanueva was unlikely to reoffend (4 RR).


      Before trial, counsel for Villanueva sought the appointment of an expert to

determine the existence of factual matters which could be used in mitigation of

punishment (CR 39). The request was granted by the trial court (CR 41). On May

5, 2006, Dr. Daneen A. Milam examined Villanueva. Her report was provided to

counsel for Villanueva. Exhibit A. (WCR 126-127). Testing on the Minnesota
                                     - 22 -
Sex Offender Tool Revised revealed that Villanueva’s future risk levels were quite

low with a low probability of future offending. Exhibit A. Counsel had no interest

in her test results which did not reveal evidence of brain damage or mental

retardation. Exhibit B. (WCR 128).


      Milam did not testify at the punishment phase of trial. Indeed, counsel

presented no evidence at the punishment phase including proving Villanueva’s

eligibility or suitability for community supervision.


      Trial counsel does not respond to this alleged act of deficient performance in

the affidavit filed in the convicting court (2nd Supp. WCR 2-4).


      The record shows that defense counsel not only failed to call witnesses at the

punishment phase, but also did not investigate punishment witnesses to determine

whether they could provide meaningful testimony. Testimony and test results from

Dr. Milam that Villanueva was unlikely to reoffend would have supported his

request for community supervision and undercut the State’s primary argument that

a long sentence was required to protect the children of Pecos County from

Villanueva. Under Wiggin defense counsel's failure to investigate and call any

punishment witnesses amounts to deficient performance.



                                        - 23 -
      The trial court concludes counsel may have had a strategic reason for not

presenting testimony showing he was not likely to reoffend (1st Supp. WCR 48).

Villanueva maintains that if counsel had a reasoned basis for not presenting the

evidence, he would have articulated it in his affidavit. As noted above, counsel did

not respond to this act of deficient performance. The trial court is simply making

up a strategy for counsel when none otherwise exist. It is inappropriate for a

reviewing court to fabricate tactical decisions on behalf of counsel when it appears

on the face of the record that counsel made no strategic decision at all.


17. Failing to investigate and call character witnesses available for Villanueva
during the punishment phase of trial (4 RR).


      Counsel for Villanueva called no character witnesses during the punishment

phase of trial (4 RR 163). Four affidavits are attached from Villanueva’s family

members. Exhibits C-F. (WCR 129-132). Three sisters and Villanueva’s mother

would have testified on behalf of Villanueva at the punishment phase of trial.

Counsel for Villanueva never contacted them or sought to determine whether they

could provide helpful testimony during the punishment proceeding. The affidavits

contain the powerful character evidence the witnesses would have provided had

they been called to testify by counsel for Villanueva. Their testimony would have

strongly supported Villanueva’s effort to secure community supervision from the

                                        - 24 -
jury. Due to counsel’s deficient conduct, the only information the jury had

concerning Villanueva was his confession to the authorities.


       Trial counsel states he did not call character witnesses at trial because no one

told him of their availability and what their testimony would have been (2nd Supp.

WCR 3-4). Counsel makes no explanation of his failure to conduct an

investigation into potential character evidence which could have been offered by

the defense at trial.


       Villanueva submits counsel engaged in deficient performance by failing to

call any punishment witnesses. He did not investigate punishment witnesses to

determine whether they could provide meaningful testimony. Under controlling

case law, defense counsel's failure to investigate and call any punishment witnesses

amounts to deficient performance.


       The trial court concludes counsel’s deficient performance should be excused

because he was unaware of the character witnesses who could have been called on

Villanueva’s behalf at punishment (1st Supp. WCR 49). Villanueva agrees counsel

was unaware of the witnesses. The reason he was unaware of the witnesses was

because he conducted no investigation of possible punishment evidence which

could have mitigated the sentence imposed by the jury. Failing to uncover and

                                        - 25 -
present mitigating evidence cannot be justified as a tactical decision when defense

counsel has not conducted a thorough investigation of the defendant's background.


18. Failing to consult with or call a medical expert or to review or challenge
the medical evidence of penetration.


      Here, defense counsel failed to call as a witness, or even to consult in

preparation for trial and cross-examination of the State’s SANE nurse Abbott any

medical expert on child sexual abuse. Counsel essentially conceded that the

physical evidence was indicative of sexual penetration without conducting any

investigation to determine whether this was the case. Had counsel conducted such

an investigation, counsel would likely have discovered that exceptionally qualified

medical experts could be found who would testify that the prosecution's physical

evidence was not indicative of penile sexual penetration and provided no

corroboration whatsoever of the alleged victim's story.


      Counsel could have presented a strong affirmative case that the charged

crime did not occur and the alleged victim's story was incredible in its entirety. It

is commonly understood among experts that a tear to the hymen in the 9:00 to 3:00

positions is indicative of digital penetration while a tear in the 3:00 to 9:00 position

is indicative of penile penetration. Abbott testified that she observed a single well

healed tear at the 11:00 position. Notably, J.G.’s claim of years of penetrating
                                       - 26 -
abuse is undermined by a single tear. Finally, studies available at the time of trial

undermined Abbott’s assertion that penetrating trauma to the hymen leaves

evidence of scarring or the size of tear she allegedly observed. Exhibit G. (WCR

133-147).


      Such a lack of physical evidence of penile penetration would cast serious

doubt on the alleged victim's story of forcible penetration over a period of years.

Were the trier of fact to credit expert testimony of the type counsel should have

offered at trial, the prosecution's case would arguably amount to the

uncorroborated and demonstrably incredible testimony of the alleged victim.


      The prosecution's case rested centrally on the alleged victim's testimony and

its corroboration by the indirect physical evidence as interpreted by Abbott. The

medical expert testimony was central not only because it constituted the most

extensive corroboration that any crime occurred, but because to undermine it

would undermine the alleged victim's credibility and thus the entire prosecution

case as to all charges. If a medical examination of the alleged victim failed to

reveal any evidence clinically indicative of sexual penetration, that failure would

constitute strong affirmative evidence that forced sexual penetration did not occur-

particularly forced sexual penetration of the frequency alleged by J.G.


                                        - 27 -
        Trial counsel does not respond to this claim of deficient performance in his

affidavit (2nd Supp. WCR 2-4).


        The situation may be different in a case where objective evidence exists

implicating a defendant in a crime, such as bodily fluids identified as the

defendant’s, or where the prosecution offered third party eyewitness testimony.

But in a case where the only direct evidence that any crime occurred or that, if it

did, the defendant committed it, was the testimony of the alleged victim, for

defense counsel to simply concede the medical evidence without any investigation

into whether it could be challenged is performance objectively unreasonable.


        Counsel did not have access to Abbott’s notes until trial (4 RR 79).

Counsel's failure even to request to examine them before trial was a serious

dereliction of his duty to investigate the facts and circumstances of Villanueva’s

case.


        Here, counsel for Villanueva decided not challenge the medical evidence

without having reasonably investigated whether facts of the case, and lacked

sufficient information reasonably to determine that such an investigation was

unnecessary. Thus, this is not a case where counsel made a reasonable decision to

cease further investigation as a result of having discovered evidence to suggest that

                                         - 28 -
challenging the prosecution's medical evidence would have been

counterproductive, or that further investigation would have been fruitless.


       Counsel never discovered any evidence to suggest one way or another

whether such a challenge would be counterproductive or such investigation

fruitless, nor did counsel have any reasonable basis to conclude that such

investigation would be wasteful. Because counsel never investigated that

alternative approach at all, counsel did not have any reasoned basis to conclude

that such an approach would be fruitless-and, in fact, subsequent counsel have

found it quite fruitful.


       Defense counsel may not fail to conduct an investigation and then rely on

the resulting ignorance to excuse his failure to explore a strategy that would likely

have yielded exculpatory evidence. For counsel to forego even an investigation of

the possibility of challenging the physical evidence was not objectively reasonable

performance. There was nothing strategic about a decision to concede the physical

evidence, with no educated basis for doing. Deficient performance is shown.


       The trial court concludes no deficient performance is shown because no

medical evidence was necessary to prove penetration (1st Supp. WCR 52). This

conclusion begs the question presented. The State presented medical evidence in

                                        - 29 -
support of its claim penetration took place. The SANE nurse testified she observed

a single well healed tear of J.G.’s hymen at the 11:00 position. If counsel had

conducted an appropriate and thorough investigation, he would have found medical

evidence which would have undermined the SANE nurse’s testimony.


                                       Prejudice


      In a conclusory manner, the trial court simply concludes Villanueva has not

demonstrated prejudice as a result of counsel’s deficient conduct (1st Supp. WCR

57). Villanueva maintains the conclusion is not supported by the above described

acts of deficient performance. Collectively, those acts resulted in a reasonable

probability that, but for this objectively deficient conduct, the result of the

proceedings would have been different.


      Villanueva maintains he suffered prejudice as a result of counsel’s multiple

acts of deficient performance. Simply put, the cumulative effect of counsel’s

errors caused a breakdown in the adversarial process that our system counts on to

produce just results sufficient to undermine this Court’s confidence in the outcome

of Villanueva’s trial. These events coming together in the same proceeding should

be sufficient to cause the court grave concern as to the fairness of the underlying



                                         - 30 -
proceeding. Villanueva submits that had counsel discharged his duty, there is a

reasonable probability the result of the proceeding would have been different.


                                      Prayer


      Villanueva requests that this court grant habeas corpus relief in the form of a

new trial, new punishment proceeding, or any other relief he is entitled to under the

law and the facts.


                                                Respectfully submitted,


                                                /s/ Richard E. Wetzel
                                                Richard E. Wetzel
                                                State Bar No. 21236300

                                                1411 West Avenue
                                                Suite 100
                                                Austin, TX 78701

                                                (512) 469-7943
                                                (512) 474-5594 – facsimile
                                                Wetzel_law@1411west.com

                                                Attorney for Applicant
                                                Ernest Villanueva




                                       - 31 -
                           Certificate of Compliance


      This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the
pleading contains 6,172 words excluding the items not to be included within the
word count limit.

                                               /s/ Richard E. Wetzel
                                               Richard E. Wetzel
                                               State Bar No. 21236300


                              Certificate of Service


     A true and correct copy of this pleading was mailed to counsel for the State,
Rod Ponton, Criminal District Attorney, 400 S. Nelson St., Fort Stockton, TX,
79735, on this the 25th day of March, 2015.

                                               /s/ Richard E. Wetzel
                                               Richard E. Wetzel
                                               State Bar No. 21236300




                                      - 32 -
