                                                                           WR-84,239-01
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 12/7/2015 3:43:45 PM
                                                              Accepted 12/7/2015 3:53:36 PM
                                                                              ABEL ACOSTA
                       WRIT NO. WR-84,239-01                                          CLERK

EX PARTE                             §        IN THE TEXAS RECEIVED
                                                         COURT OF CRIMINAL APPEALS
                                     §                          12/7/2015
                                                           ABEL ACOSTA, CLERK
                                     §        COURT OF
JAMES CHRISTOPHER                    §
NORTH                                §        CRIMINAL APPEALS


                      TRIAL COURT NO. 9790-D

EX PARTE                             §        IN THE 350TH DISTRICT
                                     §
                                     §        COURT OF
JAMES CHRISTOPHER                    §
NORTH                                §        TAYLOR COUNTY, TX


      OBJECTIONS TO TRIAL COURT’S “RESPONSE” ON
       APPLICATION FOR A WRIT OF HABEAS CORPUS

     On November 6, 2015, James Christopher North filed in Taylor

County’s 350th District Court an Application for a Writ of Habeas Corpus.

He raised four grounds of ineffective assistance of his trial counsel, sup-

porting those grounds with a detailed 41-page memorandum. Addition-

ally, linked with his third ground, North filed a motion for forensic test-

ing of the complainant’s clothing.

     15 days later, without the benefit of any response from North’s trial

counsel or the State—let alone a hearing on the application—the district

court filed its own “response.” Cf. TEX. CODE CRIM. PROC. art. 11.07 § 3(c)


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(directing State to file answer within 15 days of filing). In two pages—

and with every bit as little analysis as that indicates—the court con-

cluded that each of North’s claims was facially meritless and thus re-

quired no development of unresolved facts. Or the first three claims, an-

yway. The court did not bother to “respond” to North’s fourth ground.

      The court was wrong. And if it would actually consider North’s ap-

plication, it would recognize that. Accordingly, North objects to the trial

court’s summary rejection of his application for a writ of habeas corpus.

 I.   Trial counsel was ineffective in failing to present North’s
      most viable defense

      In North’s first ground, he argued his trial attorneys performed ob-

jectively unreasonably in failing to present at the guilt phase of trial crit-

ical evidence of North’s diminished mental capacity. That diminished ca-

pacity caused North to be incapable of forming a culpable mental state.

Because his attorneys were consequently unable and unprepared to chal-

lenge North’s guilt, North respectfully urged the court that, because he

was prejudiced by his attorneys’ failure, their performance was ineffec-

tive and he is entitled to a new trial.

      In response, the court rejected North’s claim because it found that

counsel had no “reason to question [North’s] mental state.” (Resp. at 1).


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This reflects a remarkable ignorance of the trial record. The defensive

presentation at punishment clearly shows that counsel were aware of

North’s diminished mental capacity. Indeed, the defense called a neuro-

psychologist at the punishment phase, Dr. Brinkman, who testified that

North’s brain injury “affects things like judgments, making decisions, be-

havioral control, emotional control.” (RR20: 84, 89). The defense just

failed to do so at the guilt phase of trial, thus foregoing the only viable

defense to the indictment. Moreover, North’s family repeatedly made his

counsel aware of his mental limitations. See, e.g., Attachment 1.

     Perhaps, then, that’s why, seemingly paradoxically, the court fur-

ther rejected North’s first ground on the additional basis that North’s

mental state was placed before the jury. (Resp. at 2). But, again, North

complained of counsel’s failure to enter such evidence at the guilt phase,

not punishment.

     The court’s rejection of North’s first ground on these bases is en-

tirely unreasonable. If nothing else, the writ application requires some

response from North’s trial counsel. Unfortunately, the court’s summary

dismissal of this ground is indicative of the remainder of the court’s re-

sponses. North thus objects to the court’s findings and conclusion as to



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ground one.

II.   Trial counsel was ineffective in failing to object to the trial
      court’s instruction to the alternate juror to be present dur-
      ing the jury’s deliberation

      In North’s second ground, he complained of his counsel’s failure to

to object to the trial court’s instruction to the alternate juror to be in the

jury room during deliberations. In response, the court contended the

“presence of the alternate juror in the jury room during jury deliberations

was not subject to lawful objection in 2011,” and that, regardless, there

is no evidence the alternate juror “had any material effect on the jury’s

decision.” (Resp. at 2).

      As explained in detail in North’s original memorandum, however,

the San Antonio Court of Appeals in 2008 twice held that permitting al-

ternate jurors to be present during deliberations violates article 36.22 of

the Code of Criminal Procedure’s prohibition against outside influence.

See Adams v. State, 275 S.W.3d 61 (Tex. App.--San Antonio 2008), rev’d

on other grounds, 312 S.W.3d 23 (Tex. Crim. App. 2010); Trinidad v.

State, 275 S.W.3d 52 (Tex. App.-San Antonio 2008), rev’d on other

grounds, 312 S.W.3d 23 (Tex. Crim. App. 2010). And as made clear in the

affidavit attached to North’s original memorandum, the alternate juror



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explicitly expressed during deliberations her opinion that North was

guilty. The court’s summary rejection of North’s second ground, then, is

every bit as inappropriate as its first. Accordingly, North again objects.

III.   Trial counsel was ineffective in failing to investigate and
       present crucial evidence in support of the alternative de-
       fense advanced

       In North’s third ground, he complained of his trial counsel’s failure

to adequately investigate the case before trial. Indeed, there was evi-

dence that supported North’s claim of self-defense. But defense counsel

failed to submit for forensic testing for gunshot residue what might have

been the most powerful evidence of all: the complainant’s clothing. This

evidence would have furthered North’s defense by establishing that the

complainant fired his gun at North and may have made the difference

between a non-defense and a defense. Concurrent with this ground,

North filed a motion to allow for forensic testing now.

       The court rejected this ground first because North cannot show

what the testing would reveal. But the court’s principal concern in decid-

ing whether North’s attorneys exercised “reasonable professional judg-

ment” in this instance is whether the investigation supporting their deci-

sion not to introduce such evidence was itself reasonable. Wiggins v.



                                                                             5
Smith, 539 U.S. 510, 514, 522-23 (2003). And as to that question, “Strick-

land does not establish that a cursory investigation automatically justi-

fies a tactical decision with respect to sentencing strategy. Rather, a re-

viewing court must consider the reasonableness of the investigation said

to support that strategy.” Id. at 527 (citing Strickland, 466 U.S. at 691).

In this case, where North’s trial attorneys already chose to assert a de-

fense of self-defense rather than the more promising mental-state de-

fense, their failure to then investigate self-defense was unreasonable.

      The court further rejected this ground because several witnesses

provided evidence relating to whether the complainant fired his weapon.

But “[n]one testified that [the complainant] fired his handgun.” North v.

State, No. 11-11-00338-CR, 2014 WL 272455, *3 (Tex. App.—Eastland

2014, pet. ref’d). Were the trial court rejecting this ground on the theory

that any evidence revealed by testing would be cumulative, then—the

court does not explain itself, so this is North’s best guess—the court is

again woefully incorrect. Thus, the entirety of the court’s summary re-

sponses to ground three being absurd, North again objects.

IV.   Trial counsel was ineffective in failing to prepare witnesses
      to testify




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     As noted above, as to this final ground—which itself included three

sub-allegations—the court lodged no response at all. Accordingly, North,

of course, objects to the trial court’s rejection of his writ without even

considering its grounds.

V.   Conclusion

     The trial court’s disregard for North’s right to pursue a writ of ha-

beas is shocking. That a supposedly neutral arbiter would reject an ap-

plication via a bare-bones “response” without consulting either North’s

counsel or the State is entirely egregious. North pleads with this Court

to recognize as much and to return this case to the trial court to carry out

its constitutional and statutory duty.

                                   Respectfully submitted,

                                        /s/ Robert N. Udashen
                                   ROBERT N. UDASHEN, P.C.
                                   Bar Card No. 20369600
                                   rnu@sualaw.com


                                        /s/ Brett Ordiway
                                   BRETT ORDIWAY
                                   State Bar No. 24079086
                                   bordiway@sualaw.com

                                   SORRELS, UDASHEN & ANTON
                                   2311 Cedar Springs Road, Suite 250
                                   Dallas, Texas 75201


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(214)-468-8100 (office)
(214)-468-8104 (fax)

Counsel for Applicant




                          8
                         Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of the
foregoing Objections to Trial Court’s “Response” on Application for a Writ
of Habeas Corpus was mailed to the Taylor County District Attorney’s
Office and the 350th Judicial District Court of Taylor County on December
7, 2015.

                                       /s/ Robert N. Udashen
                                   ROBERT N. UDASHEN, P.C.




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EXHIBIT




          10
Robyn M. North
Jackson Walker L.L.P.
777 Main Street
Suite 2100
Fort Worth, Texas 76102
direct: 817-334-7241
fax: 817-870-5141
http://www.jw.com/rnorth

The information contained in this message may be protected by the attorney-client privilege. Please reply
to the sender of this e-mail if you have received it in error and then delete it. This communication does
not reflect an intention by the sender or the sender's client to conduct a transaction or make any
agreement by electronic means or to constitute an electronic signature. As required by United States
Treasury Regulations, this communication is not intended or written to be used, and cannot be used, by
any person for the purpose of avoiding penalties that may be imposed under United States federal tax
laws.




______________________________________________
From: North, Robyn
Sent: Thursday, March 17, 2011 10:12 AM
To: 'sammoorelaw@sbcglobal.net'
Subject:    Medical records/mitigation

Athena,

This is a great article, I haven't read it all yet.

http://www.texasappleseed.net/pdf/hbook_MH_attorney_MentalIllness.pdf

Robyn M. North
Jackson Walker L.L.P.
777 Main Street
Suite 2100
Fort Worth, Texas 76102
direct: 817-334-7241
fax: 817-870-5141
http://www.jw.com/rnorth

The information contained in this message may be protected by the attorney-client privilege. Please reply
to the sender of this e-mail if you have received it in error and then delete it. This communication does
not reflect an intention by the sender or the sender's client to conduct a transaction or make any
agreement by electronic means or to constitute an electronic signature. As required by United States
Treasury Regulations, this communication is not intended or written to be used, and cannot be used, by
any person for the purpose of avoiding penalties that may be imposed under United States federal tax
laws.
