Buckner, Bobby Joe
WR-82,832-01
| Tex. App. | Mar 16, 2015Background
- Applicant Bobby J. Buckner (TDCJ #01740805) was convicted by a jury on July 15, 2011 of aggravated sexual assault of a child (alleged April 2000) and sentenced to 50 years; direct appeal affirmed and PDR refused.
- The alleged victim (A.L.) reported an incident when she was seven; she later disclosed to family and ultimately to police in 2008; trial testimony described touching and alleged penile-vaginal penetration, though some testimony was inconsistent about recall of penetration.
- The State presented outcry witnesses (mother, grandmother) and a treating psychologist; no forensic or direct physical evidence was produced by the investigating detective.
- Applicant filed a habeas application (post-conviction) raising multiple grounds: actual innocence, ineffective assistance of trial and appellate counsel, trial-court abuse of discretion, fatal variance in indictment, remoteness/sealing of enhancement conviction, improper visiting judge assignment, and prosecutor misconduct.
- Trial and appellate counsel submitted affidavits (Donahue and Bennett). Applicant also submitted character affidavits (employers) and contends trial counsel failed to investigate/allege numerous trial deficiencies he claims prejudiced the defense.
Issues
| Issue | Plaintiff's Argument (Buckner) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Actual innocence (Schlup/Herrera) | Conviction resulted from constitutional errors (notably ineffective assistance) and lack of physical evidence; requests relief on actual-innocence grounds. | State answered the writ (document references State answer but no full response included here). | Raised in habeas application; court designated issues and received affidavits (no final ruling in this filing). |
| Ineffective assistance of trial counsel (Strickland) | Trial counsel failed to object to arraignment defects, remoteness/availability of enhancement, prosecutorial voir dire comments, multiple outcry witnesses, admission of prejudicial photos, failure to retain/rebut experts, failure to investigate school pickup records, and failure to call available character witnesses. | Trial counsel (Donahue) filed an affidavit explaining some strategic choices and acknowledging juror issue and other trial circumstances. | Allegation preserved for habeas review; record includes counsel affidavit; no adjudication in this traverse. |
| Ineffective assistance of appellate counsel | Appellate counsel failed to request oral argument and omitted non-frivolous issues (failure to challenge sufficiency on penetration element; use of multiple outcry witnesses). | Appellate counsel (Bennett) filed an affidavit explaining his professional judgment about oral argument and issue selection. | Presented as part of habeas claims; court received counsel affidavit—no final disposition here. |
| Trial-court abuse of discretion / juror nondisclosure | Trial court abused discretion by allowing a juror (Honea) who concealed his own sexual-abuse history to serve; court also allegedly erred on lesser-included instruction, outcry-notice rulings, and admitting certain testimony/documents. | Trial court record contains the events (voir dire, in-chambers disclosure); Donahue indicates he would have sought cause/peremptory strike had full facts been known. | Applicant asks for new trial/in relief; matter set for habeas resolution; no final ruling recorded in this document. |
| Fatal variance / charging instrument | Indictment alleged elements under an amended Penal Code rather than the statute in effect when the offense occurred; Buckner claims variance fatal to conviction. | State did not address in detail in this traverse excerpt. | Raised in habeas; no disposition in this traverse. |
| Remoteness and sealing of enhancement | Applicant says plea of "true" was induced by counsel's erroneous advice re: remoteness/sealed juvenile conviction used for enhancement; argues unconstitutional use. | Applicant concedes that by pleading "true" he waived error as to enhancement. | Waiver acknowledged by Applicant; claim preserved but diminished by plea. |
| Visiting-judge assignment | Judge George Allen allegedly presided without proper assignment; all his actions should be nullities. | No assignment record in case file per Applicant; State response not presented here. | Raised as habeas ground; no ruling reflected in this filing. |
| Prosecutorial misconduct | Prosecutor allegedly offered improper voir dire commentary about how fast female anatomy heals and otherwise bolstered case; claims due-process violation. | State response not included in this traverse excerpt. | Allegation preserved for habeas review; no adjudication in this document. |
Key Cases Cited
- Schlup v. Delo, 513 U.S. 298 (1995) (standard for actual-innocence gateway to overcome procedural default)
- Murray v. Carrier, 477 U.S. 478 (1986) (probable-constitutional-error standard in miscarriage-of-justice analysis)
- Sawyer v. Whitley, 505 U.S. 333 (1992) (death-penalty actual-innocence review context referenced by Schlup)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective-assistance-of-counsel claims)
- McMann v. Richardson, 397 U.S. 759 (1970) (recognition that right to counsel includes effective assistance)
- Kimmelman v. Morrison, 477 U.S. 365 (1986) (ineffective-assistance claims at evidentiary stage; standards for counsel's failure to investigate)