Colvin, Billy Gordon
WR-51,885-04
| Tex. App. | Dec 28, 2015Background
- Applicant Billy G. Colvin (TDCJ #760687) filed a pro se reply to the State and trial court opposing denial of his Art. 11.07 habeas application seeking relief from a sexual-offense conviction and asking for an out‑of‑time appeal or remand for conviction reduction.
- Applicant argues his 2008 writ did not challenge the underlying conviction but sought an out‑of‑time appeal, so the present application is not a "subsequent writ" barred by Art. 11.07 § 4.
- Applicant asserts the trial court erred by refusing to instruct the jury on a lesser‑included offense (indecency with a child under Tex. Penal Code § 21.11) and that evidence (victim testimony) generated at least a scintilla supporting that charge.
- Applicant challenges the admission/corroboration of the victim’s testimony (outcry and lack of corroboration and hearsay concerns under Art. 38.072) and contends the trial charge improperly presented only aggravated sexual assault theories.
- Applicant accuses the State of filing a frivolous and deceptive opposition and asks this Court to strike the State’s pleading and impose sanctions; he requests remand for reduction to the lesser‑included offense.
Issues
| Issue | Plaintiff's Argument (Colvin) | Defendant's Argument (State / Trial Court) | Held (in provided document) |
|---|---|---|---|
| Whether the current application is a "subsequent writ" barred by Art. 11.07 § 4 | 2008 writ sought only an out‑of‑time appeal, not a challenge to conviction, so § 4 does not bar relief | The State contends the 2008 writ should have raised the instant grounds; thus current writ is subsequent | Not decided in this filing — applicant renews request that § 4 exception applies and asks court to consider precedent to exempt his filing |
| Whether the trial court erred by refusing a lesser‑included‑offense instruction (indecency with a child) | Evidence (victim testimony that defendant lay down and molested; willingness/interaction) produces at least scintilla supporting lesser charge; jury should have had the option | State maintains the aggravated sexual‑assault charge was proper and the lesser included was not required | Not decided in this filing — applicant requests remand for reduction to lesser offense |
| Admissibility/corroboration of victim outcry and hearsay under Art. 38.072 | Victim’s statements lacked outcry corroboration; admission was prejudicial and could not be cured; convictions rest on uncorroborated statements | State relies on victim testimony and jury credibility findings | Not decided in this filing — applicant argues admission error and prejudice |
| Whether State’s opposition is frivolous/deceptive and subject to sanctions | State offered no legal authority, mischaracterized prior pleadings, and acted in bad faith; court should strike filing and impose sanctions | State filed an opposition asserting bars to relief and factual conclusions | Not decided in this filing — applicant asks court to strike and sanction the State |
Key Cases Cited
- Ex Parte Santana, 227 S.W.3d 700 (Tex. Crim. App. 2007) (initial application that sought only collateral relief distinct from a direct attack on conviction may not qualify as a § 4 application challenging the conviction)
- Ex Parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998) (distinguishing collateral claims that do not challenge the validity of the underlying conviction)
- Ex Parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000) (out‑of‑time appeal claim in initial application did not constitute a challenge to the conviction for § 4 purposes)
- Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (standard for appellate review of sufficiency and related fact‑finding principles cited for judicial notice argument)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (cognate‑pleading test and requirement to charge lesser included offenses when factually supported)
- Ex Parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (applying Hall and the cognate‑pleading test to lesser‑included‑offense questions)
- Murray v. State, 302 S.W.3d 874 (Tex. Crim. App. 2009) (discussion of lesser‑included offense standards)
- Arevalo v. State, 970 S.W.2d 547 (Tex. Crim. App. 1998) (reversal required unless evidence refutes each theory of aggravation alleged by the State)
(Note: the provided document is the applicant's pro se reply; no final disposition or ruling by the Court of Criminal Appeals is contained in the text supplied.)