                                                                                     WR-84,235-01
                                                                       COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                     Transmitted 12/22/2015 4:54:26 PM
                                                                       Accepted 12/22/2015 4:58:23 PM
                                                                                        ABEL ACOSTA
                             No. WR-84,235-01______________                                     CLERK

                                                                          RECEIVED
EX PARTE                                §                        COURT
                                                       In the Court      OF CRIMINAL APPEALS
                                                                    of Criminal
                                                                        12/22/2015
                                                                     ABEL ACOSTA, CLERK
GUY ANDREW INMAN, JR.
                                        §              Appeals of the State of Texas



        PETITIONER’S MOTION TO STAY PROCEEDINGS
 AND TO REMAND APPLICATION TO TRIAL COURT FOR FURTHER
                 FACTUAL DEVELOPMENT

      COMES NOW, Guy Andrew Inman, Jr., Applicant in the above styled and

numbered Application for Writ of Habeas Corpus, by and through his counsel of

record, ASHLEY BURLESON, and files this Motion to Stay Proceedings and to

Remand Application to Trial Court for Further Factual Development, pursuant to

Article 11.07 (3)(d) of the Texas Code of Criminal Procedure, and in support

thereof would show the following:

                                   I.
                           PROCEDURAL HISTORY

    On or about January 13, 2010, Applicant pled guilty in Cause No. 199-81524-

06 to four counts of aggravate sexual assault of a child in the 199TH Judicial

District Court of Collin County, Texas in Cause No.’s 199-81524-06. On or about

April 13, 2015, Applicant filed this Application for Writ of Habeas Corpus. The

State of Texas responded with a proposed finding that applicant’s claims of

ineffective assistance of counsel at trial required a response from trial counsel
through an affidavit. The Court designated those issues that needed to be resolved

and ordered trial counsel to respond to each of those issues. Two weeks beyond

their due date, and after applicant moved the trial court to find trial counsel in

contempt of its order, trial counsel filed a response to each designated issue.

      Due to trial counsel’s lack of cooperation in providing applicant’s counsel

with records and other materials, thereby denying applicant opportunity to

sufficiently develop the facts supporting his claims, applicant requested that the

trial court conduct a live evidentiary hearing. Additionally, because he is confined,

applicant requested that the trial court allow him to participate by way of video

conference. The trial court did not rule on either motion.

      On November 23, 2015, the clerk of the court sent applicant’s Application

for Writ of Habeas Corpus and all related materials to this Court for resolution.



                               II.
              APPLICATION FOR WRIT OF HABEAS CORPUS
                        CLAIMS FOR RELIF

    In his application for Writ of Habeas Corpus, applicant asserted that trial

counsel was ineffective for failing to properly investigate the facts of the case;

failed to interview his alibi witnesses; failed to conduct an adequate investigation;

provided applicant with erroneous advice for purposes of inducing his guilty plea,

and failed to properly pursue a fast and speedy trial.
                            III.
   INSUFFICIENT FACTS TO SUPPORT TRIAL COURT’S FINDINGS
             OF FACT AND CONCLUSIONS OF LAW

     Rule 73.1(c) of the Texas Rules of Appellate procedure states that, in a post-

conviction application for Writ of Habeas Corpus, the applicant must provide all

information required by the form, “specify all grounds for relief,” and “set forth in

summary fashion the facts supporting each ground.” “Requiring an applicant to state

with specificity the grounds for relief, and to include a concise factual recitation in

support of those grounds, provides an opportunity for an applicant to present his case

and permits the judge of the convicting court and this Court to efficiently and fully

address the applicant’s claims.” Ex Parte Blacklock, 191 S.W.3d 718 (Tex. App.

2006). Thus, it is the applicant’s obligation to provide a sufficient record that

supports his factual allegations with proof by a preponderance of evidence. See Ex

Parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995) (“The burden of proof in

a writ of habeas corpus is on the applicant to prove by a preponderance of the

evidence his factual allegations”).       Obviously, if the trial court does not allow

applicant opportunity to fully develop the factual support for his claims, the result is

that the application will be dismissed.
        Without an evidentiary hearing, the trial court entered its findings of fact

and conclusions of law. This Court affords almost total deference to a trial

court’s findings in habeas proceedings, especially when those findings are based

upon credibility and demeanor. Ex Parte Martin, 6. S.W.3d 524, 526 (Tex. 1999).

However, if the trial court’s findings are not supported by the record, then this

Court may reject its findings. Ex Parte White, 160 S.W.3d 46 (Tex. 2004). Here,

the trial court entered findings of fact unsupported by the record and, in fact, in

contradistinction to the record.

Finding of Fact No. 1:

      The trial court found that trial counsel to be credible for no reason other than

Walpole is an officer of that court. If anything, trial counsel is either incompetent

or unreliable, and in either case cannot possibly be considered credible.

     In his representation of applicant in Cause No. 199-81524-06, trial counsel

violated more than one Rule within the Texas Disciplinary Rules of Professional

Conduct (1989). He ignored an order from the trial court allowing him to take

applicant to his home to retrieve exculpatory evidence. That exculpatory evidence

would have provided a very different outcome. Applicant would not have pleaded
guilty. Instead, he would have proceeded to trial or, in the alternative, the State

could have abandoned the charges. Trial counsel entered applicant’s home

without applicant in search of incriminating evidence which he then shared with

the prosecutor. Trial counsel’s conduct violated Rule 1.01(b)(1)(2)(c) (Competent

and Diligent Representation) and Rule 3.04 (Fairness in Adjudicatory Proceedings)

when he neglected to take applicant to his home to retrieve exculpatory evidence.

Trial counsel then violated Rule 1.06(a) (Conflict of Interest: General Rule) and

Rule 1.14 (a)(b)(c)(Safekeeping Property) when he shared materials which he

collected from applicant’s home with the prosecutor instead of discussing what he

found with applicant, his client.

   In his representation of Applicant in Cause No. 199-81524-06 trial counsel

failed to properly investigate applicant’s defense which included his failure to

interview applicant’s alibi witnesses; failed to take applicant to his home to

retrieve exculpatory evidence; failed to provide applicant with proper legal advice

regarding the dates of the offense as alleged in the indictment; withheld evidence

necessary to applicant’s defense; and failed to pursue a fast and speedy trial.

Walpole’s conduct violated Rule 1.01(b)(1)(2)(c) (Competent and Diligent

Representation), Rule 1.06(a) (Conflict of Interest: General Rule), Rule 1.14

(a)(b)(c) (Safekeeping Property), Rule 3.04 (Fairness in Adjudicatory

Proceedings), and Rule 8.04(A)(3)(4)(12)(Misconduct).
    Since applicant’s conviction, and even in the instant habeas proceeding, trial

counsel has violated these Texas Rules of Texas Disciplinary Rules of Professional

Conduct. He destroyed property belonging to applicant, some of which would

have demonstrated applicant’s innocence, and all of which was known to him

during the proceedings in Cause No. 199-81524-06. He refused to provide records

and other materials to applicant’s counsel in these proceedings. Finding of Fact

No. 2:

    As evidence of his lack of professional responsibility, trial counsel was late in

filing his affidavit in these proceedings. In his response to designated issues, trial

counsel masked his refusal to respond truthfully with the redundant, “as I recall, I

spent a great deal of time explaining to the Applicant that the court was not bound

to the specific date in the indictment.” At every turn, trial counsel has sought to

impede applicant’s ability to prove his innocence and to affirm his guilt. This is

not the kind of conduct required of a criminal defense attorney and therefore trial

counsel is not credible.

Finding of Fact No. 4:

   Applicant has no way of knowing with any certainty that the evidence trial

counsel discussed with the prosecutor corroborated the victim’s version of events

since Applicant does not know what that evidence was. Trial counsel did not

reveal this in his affidavit. This fact must be further developed.
Finding of Fact No. 6:

   Unless Applicant knows exactly what trial counsel retrieved from Applicant’s

home, Applicant is not able to develop factual support for this claim. Trial counsel

must be directed by the trial court to reveal what he collected from Applicant’s

home. As stated in Finding of Fact No. 4 above, this fact must be further

developed.

Finding of Fact No. 7:

   Again, the trial court deprived Applicant of any opportunity to develop the

factual support for this claim. Absent any opportunity to develop the factual

support for his claims, Applicant cannot prove his claim. This fact must be further

developed.

Finding of Fact No. 8:

   This finding is incorrect. Applicant identified his alibi witnesses in his

Response to the State’s Answer as those who trial counsel called the day of trial

and who would have confirmed that Applicant was not anywhere near the

complainant when the sexual assaults allegedly occurred. This fact requires further

development.
Finding of Fact No. 9:

   This finding by the trial court would be negated with the testimony of

Applicant’s alibi witnesses. Again, the testimony of these witnesses must be

elicited either through affidavit or an evidentiary hearing. This is a fact that

requires further development.

Finding of Fact No. 10:

  As with Finding of Fact No. 9 above, this finding by the trial court would be

negated with the testimony of Applicant’s alibi witnesses. Again, the testimony of

these witnesses must be elicited either through affidavit or an evidentiary hearing.

This is a fact that requires further development.

Finding of Fact No. 11:

    As with Finding of Fact No. 9 and 10 above, this finding by the trial court

would be negated with the testimony of Applicant’s alibi witnesses. Again, the

testimony of these witnesses must be elicited either through affidavit or an

evidentiary hearing. Of course, were it shown that Applicant was in a different

city (and State) when the sexual assaults allegedly occurred, Applicant would not

have been found guilty. This is a fact that requires further development.

Finding of Fact No. 12:

    Trial counsel has not produced a motion for fast and speedy trial prepared by

him for Applicant, nor has trial counsel provided any notes, memos, or other
written materials which would show that he advised Applicant of his right to a fast

and speedy trial.

Finding of Fact No. 13:

    Trial counsel did not turn his file over to anyone at Applicant’s request several

years ago. Trial counsel gave someone some items belonging to Applicant but did

not give away Applicant’s file. This fact can be further developed.

Finding of Fact No. 15:

    That State has not been prejudiced by Applicant’s delay in this case. The facts

of the case have not been developed to the extent the State could be prejudiced. If

there is an absence of any facts, record or otherwise, it will not be owing to any

delay but rather it will have been trial counsel’s misconduct that produced that

affect.

Finding of Fact No. 16:

    This finding by the trial court is without factual or legal support. The number

of times the case passed prior to trial counsel’s appointment is irrelevant. Trial

counsel is responsible for his own representation once he was appointed.

Immediately upon appointment, trial counsel should have recognized that the case

had been continued for too long and therefore the need for a fast and speedy trial.

Finding of Fact No. 17:
   This finding by the trial court is without factual support. Trial counsel called

Applicant’s alibi witnesses the day of trial and sought a continuance because he

was not prepared for trial. This fact is supported by the record. Obviously, trial

counsel had not used the time he spent wisely.

Finding of Fact No. 18:

  This finding by the trial court is without factual support. Trial counsel sought a

continuance the day of the trial and this is supported by the record.

Finding of Fact No. 19:

   This finding by the trial court merely echoes the response given by trial counsel

in his affidavit. In addition to being false, this finding demonstrates that Applicant

was taken to court and prosecuted by the State with the help of the district

attorney’s office, Applicant’s trial counsel, and the trial court for being a criminal

generally. This finding is without factual and legal support.

Finding of Fact No. 20:

   With further factual development, Applicant would show that, by a

preponderance of evidence, counsel was deficient for failing to advise him of his

right to a fast and speedy trial. This conclusion will follow the factual

development of Applicant’s alibi witnesses. Had trial counsel interviewed

Applicant’s alibi witnesses, the witnesses would have placed Applicant in locations

other than where the sexual assaults allegedly occurred, thereby making it
impossible for Applicant to have committed the assaults. With this evidence, trial

counsel could have moved for a fast and speedy trial and introduced this evidence

exonerating Applicant.

Finding of Fact No. 21:

    See Response to Finding of Fact No. 20 above.

Finding of Fact No. 22:

    This finding by the trial court appends greater credibility to trial counsel than to

Applicant and the reason for this can be found in Findings of Fact No. 19 and 23.

However, as shown, trial counsel is not credible.

Finding of Fact No. 23:

    The trial court cannot enter a finding of fact unsupported by fact and law. The

trial court cannot find any fact predicated upon fantasy; that Applicant pled guilty

because Applicant knew he would be found guilty because of his criminal record.

The trial court cannot possibly know this to be a fact. Furthermore, Applicant did

not languish in Collin County Jail near death just to plead guilty because he was

concerned about his past. The trial court, with the help of the prosecutor and

Applicant’s counsel, tortured Applicant to near death to force his guilty plea and

this is a matter of record.

      All that the trial did was to rubber stamp the State’s proposed findings.
                                  CONCLUSION

       The trial court entered findings of fact and conclusions of law not supported

by the record. The trial court entered findings of fact and conclusions of law

which do not find any support either in fact or in law. Applicant has alleged

sufficient facts to be entitled to further factual development.



     WHEREFORE, Applicant prays this Honorable Court of Criminal Appeals

grants this motion to stay proceedings and remand this application for Writ of

Habeas Corpus back to the trial court for further factual development of his claims.



Respectfully Submitted,


                                 MR. ASHLEY BURLESON, ATTORNEY AT LAW


                                               By:
                                                 Ashley B. Burleson
                                                 Texas State Bar No. 24058633
                                                 1001 Texas Avenue, Suite 1400
                                                 Houston, Texas 77002
                                                 Telephone: (713) 201-7399
                                                 Facsimile: (888) 260-5496
                                                 Email: ashleycando@gmail.com
                                                ATTORNEY FOR APPLICANT
                          CERTIFICATE OF SERVICE

A true and correct copy of the foregoing APPLICANT’S MOTION TO STAY
PROCEEDINGS AND TO REMAND APPLICATION TO TRIAL COURT FOR
FURTHER FACTUAL DEVELOPMENT has been sent to counsel representing
the State by placing the same in the U.S Mail, Certified, and addressed as follows:



Amy Sue Melo Murphy
Assistant Criminal District Attorney
SBT # 24041545
2100 Bloomdale Rd., Ste 200
McKinney, Texas 75071
(972) 548-4323
(214) 491-4860 Fax
asmurphy@co.collins.tx.us


                                   MR. ASHLEY BURLESON, ATTORNEY AT LAW


                                             By:
                                               Ashley B. Burleson
                                               Texas State Bar No. 24058633
                                               1001 Texas Avenue, Suite 1400
                                               Houston, Texas 77002
                                               Telephone: (713) 201-7399
                                               Facsimile: (888) 260-5496
                                               Email: ashleycando@gmail.com
