ATTERBURY, CHARLES JOSEPH Jr.
WR-83,575-01
| Tex. App. | Jul 17, 2015Background
- Charles Atterbury pleaded guilty to aggravated sexual assault of a child and indecency with a child and later filed an application for a writ of habeas corpus challenging those pleas.
- Atterbury contends his pleas were not knowing, voluntary, or intelligent because counsel failed to inform him the State had no admissible case absent corroboration of his extra-judicial confession.
- He additionally alleges counsel was ineffective for failing to investigate corroborating evidence and for failing to move to recuse a judge he says was biased at the probation-revocation proceeding.
- The trial/district court recommended denial of relief, finding counsel told Atterbury the State’s case was "weak" and concluding there was no evidence the judge was biased; the court relied largely on counsel’s affidavit and reputation.
- Atterbury objects, arguing that “weak” is materially different from “non‑existent,” that the only evidence was his confession (which requires independent corroboration under Texas law), and that credibility disputes required an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plea was knowing/voluntary because counsel failed to advise that the State lacked a viable case | Atterbury: counsel failed to tell him the State had no case because the confession was uncorroborated | State/district court: counsel advised Atterbury the State’s case was "weak," and Atterbury insisted on pleading | District court recommended denial; Atterbury objects arguing "weak" ≠ "no case," and requests relief |
| Whether counsel was ineffective for failing to investigate potential corroboration | Atterbury: counsel failed to investigate facts that would show absence of corpus delicti and thus would have prevented plea | State/district court: counsel believed there was potential corroborative evidence (e.g., complainant behavior) | District court credited counsel’s affidavit; Atterbury argues factual dispute requires live hearing |
| Whether counsel was ineffective for not moving to recuse an allegedly biased judge | Atterbury: judge demonstrated bias at probation-revocation proceedings, so counsel should have sought recusal | State/district court: no evidence the judge was actually biased | District court found no evidence of bias; Atterbury preserves objection and urges reversal |
Key Cases Cited
- Chambers v. State, 866 S.W.2d 9 (Tex. Crim. App. 1993) (extra‑judicial confession requires independent corroboration)
- Self v. State, 513 S.W.2d 832 (Tex. Crim. App. 1974) (same principle on corroboration of confession)
- Salazar v. State, 86 S.W.3d 640 (Tex. Crim. App. 2002) (corpus delicti rule requires evidence independent of confession that crime occurred)
- Ex parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005) (importance of live testimony and cross‑examination for credibility determinations)
- Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004) (affidavits may define disputed facts but are not always suited to resolve credibility contests)
- Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999) (court may not resolve credibility contests solely on uncorroborated affidavit testimony; remand for evidentiary hearing)
- Perillo v. Johnson, 79 F.3d 441 (5th Cir. 1996) (petitioner entitled to discovery or hearing when factual disputes, if resolved for petitioner, would entitle him to relief)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance of counsel standard)