EX PARTE CHRISTIAN HONEYCUTT, Applicant
NO. WR-96,808-01
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. B22430-1 IN THE 198TH DISTRICT COURT KERR COUNTY
Finley, J., filed a concurring opinion in which Parker, J., joined.
This is an ineffective-assistance-of-counsel claim with two vastly different versions of events. On the one hand, Applicant’s lead trial attorney, James Scott Sullivan, filed affidavits refuting Applicant’s claims of ineffective assistance of counsel. On the other hand, Applicant’s second-chair trial attorney, Ryan Madden, filed affidavits alleging numerous instances of ineffectiveness by
I agree with this Court’s decision to grant Applicant ineffective-assistance-of-counsel relief. I write separately to explain further why the Court is correct to do so.
I. Factual Background
Applicant was charged with and convicted of aggravated assault with a deadly weapon. See
[Applicant] did not testify in his defense, but Sheppard testified that, on May 13, 2022, he was in the bathroom at a Stripes convenience store attempting to use the restroom when [Applicant] attacked him. Sheppard testified that he entered the bathroom and that there were “a pair of legs walking back and forth in the stall.” According to Sheppard, [Applicant] “opened the stall door and . . . had a knife in his hand.” Sheppard said that the knife was “open” and was “pointed” at him. Sheppard testified that [Applicant] said, “Oh,” and backed up, exiting the bathroom. Sheppard testified that he notified the store clerk of a man in the bathroom with a knife. [Applicant] then opened the door to the bathroom with the knife, and Sheppard detained [Applicant] until the police arrived and arrested him.
Q: [Y]ou never previously indicated that he pointed a knife at you at that first instance.
A: I specifically said that he pulled a knife out on me. That’s indicating that he pointed it at me.
* * *
Q: So it’s your testimony here today that you — during your interviews with Officer Virdell, you did allege that he pointed a knife at you when you first went into that rest room. Is that what your testimony is today?
A: Yes. He had a knife out on me.
Sheppard also was insistent that, although [Applicant] made no verbal threats against him, [Applicant]’s conduct was still threatening and not merely reckless. During cross-examination, the exchange between Sheppard and [Applicant]’s counsel was as follows:
Q: One last question. At any time during your investigation did you determine if Mr. Honeycutt had made a verbal threat to anyone?
A: I don’t recall exactly. I don’t know that there is an actual verbal threat, sir.
* * *
Q: Then there you say that as soon as you saw that knife — since you’re a combat vet, as soon as you saw that knife and he is walking towards you without any verbal threats, you just snapped and you choked him out, right?
A: Correct, because he was a threat, dangerous to myself and other people and himself at that time.
Q: Despite him making no verbal threats and just walking towards you?
A: You don’t need to make a verbal threat.
Honeycutt v. State, No. 06-23-00167-CR, 2024 WL 133066, at *1–2 (Tex. App.—Texarkana Jan. 12, 2024, no pet.) (mem. op., not designated for publication).
II. Applicable Law
The standard for ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). An applicant must show that counsel’s performance was deficient and that the deficient performance was prejudicial to the outcome of the proceeding. Id. at 687. The deficiency prong requires a showing that counsel’s performance fell below an objective standard of reasonableness. Id. at 687–88. There is “a strong presumption that counsel’s conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at 689. The prejudice prong requires a
III. Habeas Evidence
i. Madden’s Affidavit
In his first affidavit, Madden averred the following:
I was a brand-new attorney in the Hill Country Regional Public Defender’s Office (hereinafter PDO) at the time of this trial. I had worked at the office since August 2022, but that was while my bar results were pending. I was licensed in October 2022, and at the time of trial, I had been with the office as a licensed attorney for approximately four (4) months. I was assigned to [Applicant]’s case by my superiors the weekend before it was set to go to trial. Mr. Scott Sullivan was lead counsel and had been on the case for months prior to trial. I thought my role would be to assist Mr. Sullivan and be a second face for the jury to see in court. Up to that point, I had primarily handled misdemeanor cases and low-level state jail felonies. [Applicant]’s aggravated assault with deadly weapon trial was my first felony trial experience as second chair.
As lead counsel, Scott Sullivan had the sole strategic authority over this case, I was unfamiliar with the facts when I was assigned. In the weekend before trial, I went to the office and met with Scott, and I tried to get up to speed on the case and I asked him basic questions about the facts of the case and what all had been done so far. Mr. Sullivan could not answer my basic questions about what happened in this case and stumbled over case details. It appeared to me that
there was some sort of impairment with Mr. Sullivan, although I did not know him well enough to ask him personal questions. Perhaps I should have, looking back. Mr. Sullivan was not prepared on case theory, case strategy, and he couldn’t answer my basic questions about what our theme was for this case. He wasn’t able to talk about the case when we did try to work it up the weekend before trial. Mr. Sullivan seemed lost. I was shocked when I found out he had not filed any pretrial motions in this case and had barely spoken to the client or the client’s family, who called our office many, many times trying to reach their son’s attorney and find out what was going on with the case. In fact, many of Mr. Sullivan’s clients would call the PDO to try to reach him because he did not keep them apprised of their case status. I observed that Mr. Sullivan did not know our client’s full name and that despite working with me for at least four months in the PDO, Mr. Sullivan did not know or seem to recall my name at times, despite meeting me many times and hearing my name many times. The one thing that Mr. Sullivan was adamant about was that this case was really a Deadly Conduct case in his estimation and that was the trial strategy, that we could get deadly conduct as a lesser included offense in this trial under the facts.
In my office interactions with Mr. Sullivan prior to being assigned to this case, I noticed some eccentricities about him. He talked to himself a lot and sometimes, I would respond because I thought he was talking to me, and he would quickly correct me that he was talking to himself. I noticed he never kept track of his cases and could not confer or answer intelligently questions from prosecutors about his own cases. He would walk around with his pockets full of different colored markers and different colored crayons, but I never saw him use any in his work on this case or any other. He had no devices to take notes on, he used a legal pad if he used anything at all.
Mr. Sullivan did not do any investigation in this case as defense counsel. I did not observe Mr. Sullivan do anything meaningful for trial preparation in my presence. There was no evidence of his work product in the shared PDO file that we all had access to. There was no evidence he used any defense investigators in his case preparation, and we had some available within the PDO itself. I never once saw Mr. Sullivan review any videos at all from this case, he reviewed none of the surveillance, and we learned how the door opened to the bathroom, a fact needed for trial, by visiting the crime scene. The crime scene was only four (4) minutes away, and we went to the Stripes mere days before trial had already begun to check out the crime scene. Mr. Sullivan only had discovery in the file, there was no work product at all, no notes of interviews, nothing.
In terms of discovery, Kerr County has an open file policy, and they also have a discovery portal. You log in and download what is uploaded, but everything is not always there or uploaded at the same time. Sometimes you had to follow up to get all the discovery. In terms of [Applicant]’s file, I don’t know if this happened. I saw no evidence that Mr. Sullivan ever went to the District Attorney’s office and reviewed their open file. This alarmed me and I tried to learn as much as I could about this case in the weekend before trial. I was not sure how trial would go when it began, because Mr. Sullivan did not have a prepared trial guide or idea of who would be doing what at trial, or handling what at trial. As the lead counsel, I assumed he would be handling the vast majority of this trial and my role would be one of support only.
During trial, at the last minute, Mr. Sullivan dumped a lot of the trial duties into my lap, telling me, “You’re young, you’re nice looking, the jury will like you,” or words to that effect. I had no time to prep. I tried to save the case as best I could, but I did not know what I was doing at the time. During trial, I would learn at the last possible minute that I was taking witnesses, with no time to prepare for this witness I was taking. Because of Mr. Sullivan’s lack of
effective assistance at trial, I worried about this case and how it could go wrong for our client. I believe [Applicant]’s case was harmed by Mr. Sullivan’s handling of his case in this manner. One time before he left the office officially, we met with [Applicant]’s grandmother, Monica Ames, at the PDO post-guilty verdict, to develop potential sentencing evidence. The entire time Mr. Sullivan was with us, he kept calling her by the wrong name and calling her by the wrong relative title. He referred to her as “mother” instead of the correct title of “grandmother.” I could see the concern in Monica’s eyes the more and more he did this, she was getting naturally alarmed at Mr. Sullivan’s mistake in this regard and his overall capabilities. I had to take over this meeting to have it be productive, if possible, and I volunteered to talk to Ms. Ames and Mr. Sullivan agreed and just left the meeting, rather than stay with us, take notes, and perhaps offer insight into areas I should be discussing with a potential sentencing witness, etc. I do not know if Mr. Sullivan ever told [Applicant] of his right to testify or the punishment range in this case, I could find no proof that he did so. I cannot with certainty recall if I ever met with [Applicant] prior to trial, although I did speak to him in court. I do believe I met with [Applicant] the day before trial, but for the sole purpose of ascertaining his sizes to obtain clothes for trial.
* * *
COUNSEL THOUGHT A PSI WOULD BE DONE IF CONVICTED
COUNSEL FAILED TO PREPARE FOR SENTENCING
During the beginning of the trial, Mr. Sullivan announced that [Applicant] was going to the court for punishment. I was not party to any conversation with [Applicant] as to the risks and benefits of choosing Judge or Jury for punishment in this case and I do not believe that Mr. Sullivan ran this decision by [Applicant] at all. [Applicant] was not a lawyer and relied on us to advise him not make these decisions for him. When [Applicant] was convicted by the jury,
Mr. Sullivan approached the Court about having a PSI, looking for a reset. I recall a discussion at the bench where the Judge informed Mr. Sullivan that [Applicant] did not require a PSI because he was not probation eligible under the law and regardless, Mr. Sullivan had chosen the court for punishment. Mr. Sullivan seemed surprised by this statement from the court. It appeared to me he thought our client was probation eligible, even though he was not because of his prior felony conviction. He also could not get probation from the court because the deadly weapon in the case made that impossible by statute. It was during this conversation that Mr. Sullivan revealed on the record, I believe, that he needed a reset so that he could interview potential sentencing witnesses, because he had not interviewed any, and claimed to have family members that would testify, and that he needed to talk to them. I was shocked at this admission that Mr. Sullivan made, admitting on the record he had done no work towards sentencing. I believe the Judge was shocked too, because the Judge questioned Mr. Sullivan on the record, something like, what was your strategy in the event of conviction in this case? or words to that effect. I can attest we had none, because Mr. Sullivan failed to prepare for sentencing or interview any sentencing witnesses at the time of this conversation during the trial and right after the guilty verdict was received. He had done zero pretrial work in this regard.
COUNSEL QUIT THE TRIAL AND PDO BEFORE SENTENCING
Somewhere after getting a brief continuance from the court so that the defense could interview sentencing witnesses and try to prepare, Mr. Sullivan left the employment of the PDO and abandoned [Applicant] completely as a client. There was no goodbye or explanation given to the client by Mr. Sullivan, he just vanished. I was the only person in the office now that knew the case, so I was forced to try to gather and present sentencing evidence for [Applicant], something I had no experience doing. I spoke with Monica Ames and she was the sole family witness I called on [Applicant]’s behalf. I called a couple of private investigators and
tried to elicit their help post-guilty verdict to see if there was anything they could find that might help, but it was a case of “too little, too late.” [Applicant] was sentenced to 25 years in the Texas Dept of Corrections. Nothing the investigators found was admissible at punishment and while I tried later on to present their information at a Motion for New Trial, the court ruled there was no connection made between our new evidence of a previously unknown association among the civilian parties and [Applicant], and the conflict that ensued between our client and the victim, Michael Sheppard.
COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
I believe given what I personally observed, pretrial and during trial, that Mr. Sullivan rendered ineffective assistance of counsel in [Applicant]’s case. His performance was deficient to the point where Mr. Sullivan failed to function as counsel for our client, and that there exists a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. In this case, I believe the harm to our client, [Applicant], was that he was convicted by the jury and sentenced to twenty-five (25) years in the Texas Dept of Corrections by the Court. I believe the cumulative effect of Mr. Sullivan’s errors in this case, even including my own if the court sees it that way, resulted in ineffective assistance of counsel in [Applicant]’s case. I believe [Applicant] deserves a new trial.
ii. Applicant’s Declaration
In his declaration, Applicant averred the following:
I was represented by Scott Sullivan and Ryan Madden of the Hill County Regional Public Defender’s Office in Cause No. B22430 in Kerr County, Texas. I was not well represented by my defense counsel and believe they rendered ineffective assistance of counsel in my case. To my knowledge, my attorneys did not conduct any investigation into my case prior to trial and no investigator working with them or claiming to work with them ever contacted me about my case prior to my trial. I did not know what was going on with my
case and I wanted to discuss the evidence and my case with my attorneys because I did not know the evidence against me and could not make an informed decision about my situation. I do not know if they reviewed all of the discovery in my case prior to trial. I recall that Mr. Sullivan saw me one time and only told me he was working on my case, but offered no details and took no notes from our conversation. He did not show me all of the discovery in my case. I recall that Mr. Madden met with me on two occasions at the jail, but we did not discuss the discovery in my case. I never saw any body cam videos in my case and saw video evidence only at trial for the first time. I was alarmed at how much I didn’t know was in my case, but because trial had already begun, I knew of no way to stop it and figured my attorneys knew what they were doing. Looking back at how things went down, I had no idea that they had no real strategy and that their preparation was last minute. They did not advise me of my trial rights, prepare me to testify if I desired to, nor did they go over trial procedures with me. Mr. Sullivan appeared to be overwhelmed and, while he was a nice man personally, he did not seem in full command of the facts of my case and relied too much on Mr. Madden, who told me he was a brand new lawyer. I do not know if Mr. Madden had much felony trial experience. At trial, it seemed like they were not on the same page with Mr. Sullivan having Mr. Madden take witnesses or do things at what seemed to be the last minute.
* * *
During trial, after I was convicted, Mr. Sullivan asked the court for a later sentencing date because he had not interviewed anyone, not even my family members. He was lead counsel and he was completely unprepared to go forward with sentencing and apparently, had not even considered that I could be convicted. When he left the public defender’s office and quit my case, I was left only with Mr. Madden, who was young and enthusiastic, but clearly inexperienced. He called one family member to testify on my behalf. He had no helpful records about my past, did not call other available
family members to paint a more sympathetic picture of me as a person, and did not enter any documentary evidence to show that during my prior incarceration I tried to better myself by taking classes and getting certifications. I felt this information was important to show the Court that I worked hard during my incarceration and did not take that time for granted.
iii. Gordon Ames’s Affidavit1
Gordon Ames, Applicant’s step-grandfather, averred the following:
- I am [Applicant]’s step-grandfather. I have known [Applicant] since 2005, when I first met his maternal grandmother, Monica Ames. [Applicant] was 10 years old when I first met him.
- I knew [Applicant]’s mother, Natalie, through work. I worked with her and her mother, Monica, at the time. [Applicant] would come to the office with his mother from time to time when she did not have childcare. He seemed like a sweet, respectful child who was looking for positive attention and guidance. It was my impression that he tried hard to fit in, and I saw that even more as he got older. It is my opinion that he felt a desire to belong and be wanted by his friends because he lacked love and attention in his youth. He grew up in a very difficult situation.
- [Applicant]’s mother was in her early twenties and in college when he was born, along with his twin brother, Max. His father left his mother when the babies were infants. She had very little support and had to manage two children on her own. As [Applicant]’s brother Max got older it was apparent he had profound disabilities. To this day he is unable to talk or walk. [Applicant]’s mother had a difficult time caring for both boys.
I believe she tried her best, but [Applicant] lacked the guidance and support he needed throughout childhood. [Applicant] did not have a strong role model to teach him how to behave and to give him discipline when he needed to be corrected. - When [Applicant] went to prison the first time, I was worried about his safety and wellbeing. I believe that prison should be a punishment for bad behavior and can be an effective deterrent to crime. However, I worried about someone who was as inexperienced as [Applicant] being put in general population. I worried that he would not be safe there. My fears were confirmed, as [Applicant] was assaulted while he was in prison.
- When [Applicant] was released from prison, he seemed to be adrift. I believe that being in prison caused him to be institutionalized and to lose some of the necessary skills to survive in the free world. His grandmother and I tried to do our best to provide him with support after he was released, but it was difficult to know how to best help him. He seemed traumatized by the experiences he had there and resisted our attempts to give him structure and guidance.
- Prior to [Applicant]’s trial, I had no interactions with his attorneys or their staff. No one reached out to me to get my perspective on [Applicant]’s life history and character. Had I been asked I would have provided [Applicant]’s attorneys and their staff with the above information prior to trial and would have provided it to the court in my testimony.
- During [Applicant]’s trial I had several troubling interactions with his attorney Scott Sullivan. The first morning of the trial, when I met him, Mr. Sullivan told me that he came out of retirement to work at the [PDO]. He seemed proud when he said this. He told me that his expertise was in business law, not criminal defense. I was left with the impression, both from this
conversation and from witnessing him in the courtroom, that he had little experience in criminal law. - I worried that Mr. Sullivan was intoxicated during [Applicant]’s trial. He appeared unsteady on his feet. His body language seemed incongruent with the situation he was in and the content that was being discussed. He was grinning and smiling during the discussion of serious topics, both on the record and while speaking with me. He did not appear to be following the proceedings in the courtroom. There were very few objections made by Mr. Sullivan throughout the trial, especially when compared with the prosecutor. It did not seem like Mr. Sullivan was able to follow what was going on in court. When we asked him questions, he was not able to provide us with answers that showed an understanding of the case or [Applicant]’s situation.
iv. Monica Ames’s Affidavit
Monica Ames, Applicant’s grandmother, averred the following:
- I am [Applicant]’s maternal grandmother. I have known [Applicant] since his birth.
- When [Applicant] was a child, he was raised alongside his disabled twin brother, Max, by his mother Natalie Steele. [Applicant]’s father left Natalie when [Applicant] was three months old. Natalie struggled to care for two children herself. [Applicant] had a difficult life, and I was able to share some of the challenges he faced with the court when I provided testimony during the sentencing phase of his trial.
- However, there was other information that I would have provided to the court had I been asked this information by [Applicant]’s attorneys.
My interactions with [Applicant]’s attorneys were limited to the period immediately prior to [Applicant]’s trial. The day prior to my testimony, I met with [Applicant]’s attorneys and observed his attorney Scott Sullivan to appear intoxicated. We met at his office to prepare for court, and Mr. Sullivan was slurring his speech and stumbling. He asked me questions that were irrelevant to my testimony (for example, speaking extensively about the boots I was wearing) and seemed confused and disengaged when discussing [Applicant]’s life history and my possible testimony. When we got up to leave this meeting, Mr. Sullivan fell over and caught himself on the wall. I believe he was intoxicated and impaired at the time of this meeting. I left the meeting feeling unprepared to give my testimony the following day. - [Applicant]’s attorney Ryan Madden told me that he was a newly licensed attorney but was doing his best for [Applicant]. Mr. Madden told me that he had hundreds of clients on his case load at the [PDO] at the time of [Applicant]’s trial, and that he was overworked and trying his best to help everyone as best he could. I understood from my conversations with Mr. Madden that the office was short staffed and that attorneys were being asked to work enough cases that they could not effectively help all their clients.
- There were several important events in [Applicant]’s life that I was not asked about by [Applicant]’s attorneys but would have been willing to share with the court during my sentencing testimony.
- When [Applicant] was young, his mother Natalie struggled to care for him and his twin brother, who was severely disabled. Natalie struggled with drug addiction. This impacted [Applicant] negatively. His mother was using drugs and was not always a good caregiver as a result. She would sometimes be absent from [Applicant]’s life. She exposed him to situations due to her drug use that were inappropriate for a
child or adolescent to be around. I believe this had a negative impact on [Applicant]’s development. - When [Applicant] was sentenced to incarceration at the Texas Department of Criminal Justice (TDCJ) on a previous case, he experienced several traumatic attacks that caused him serious bodily injury. He was physically assaulted by other inmates on multiple occasions. He was also sexually assaulted by other inmates. This experience was very traumatic for [Applicant]. He was upset when recounting these events, and it was clear that when he was released from TDCJ he was still traumatized from these experiences.
- Prior to [Applicant]’s trial, I had limited interactions with his attorneys and when I did, they were rushed and appeared disorganized. I provided them with some life history information during one of our meetings and was able to share some of this information with the court during my testimony. I was not aware of the scope of the kinds of life information that would be helpful to share as a part of [Applicant]’s sentencing. Had I been asked I would have provided [Applicant]’s attorneys and their staff with the above information prior to trial and would have provided it to the court in my testimony.
v. Natalie Steele’s Affidavit
Applicant’s mother, Natalie Steele, averred the following:
- I am [Applicant]’s mother. I gave birth to [Applicant] when I was in my early 20s. It was an unplanned pregnancy while I was in college, and I did not feel prepared to have a child. I learned I was having twins and planned to get an abortion. [Applicant]’s father pressured me into carrying the pregnancy to term, promising me that he would support me and the children. We got married and started a life together.
When [Applicant] and his brother, Max, were born, we knew instantly something was wrong. Both of my sons had a cleft lip. [Applicant] required surgery at 6 months of age to repair his cleft lip. His brother Max also had a cleft palate and required multiple surgeries to repair his birth defects. - Around the time of their surgeries, [Applicant]’s father ended his relationship with me and did not assume responsibility for the twins. He was absent for their early childhood and did not provide me with any financial support, despite a court order that required him to pay me child support.
- When [Applicant] and his brother were close to one year of age, I noticed there was something different about his brother Max. While [Applicant] was meeting milestones on time, his brother Max seemed to be delayed. After the differences between them grew, Max was further evaluated and diagnosed with cerebral palsy. His condition is severe, and he has never learned to walk or talk.
- It was very difficult for me to raise twins, and it became even more difficult once Max’s health problems became apparent. He required constant, around the clock care and I did not have anyone to help care for him. [Applicant] was a healthy, able-bodied child, and received less attention from me because of his brother’s needs. I was trying to survive and keep the children safe but can now see that [Applicant] did not get the guidance or attention that he needed. I was not able to provide him with the necessary stability and structure at home, because I was so preoccupied with his brother’s needs.
- When [Applicant] and Max were six years old, his brother required extensive surgeries that caused him to be in the hospital and in a body cast for nine months. During this period, I was overwhelmed by Max’s situation and needs and felt unable to care for [Applicant].
I contacted [Applicant] and Max’s father, with whom I had a poor relationship, and asked him to take primary custody of [Applicant]. By this time, he had remarried and had a new wife who seemed able to help care for [Applicant]. [Applicant] went to live with his father and stepmother in Dallas, and while I had some contact with him, my poor relationship with [Applicant]’s father and the distance from my home in Kerrville prevented me from being as close to [Applicant] as I would have liked. - Unfortunately, [Applicant]’s father abused drugs during the period that [Applicant] lived with him.
- I struggled after Max’s surgery and [Applicant]’s move to his father’s home. I was depressed and overwhelmed and began using drugs to cope with the stressors I was facing. Using amphetamines helped me to feel happier and have more energy for my caregiving responsibilities, but also caused many problems in my life. I was caring for Max full-time and unable to leave home, so the only people I interacted with were those willing to come spend time with me at home. I began to abuse drugs and surrounded myself with people who were also drug users.
- When [Applicant] started high school, he returned to Kerrville to live with me. His father and stepmother had gotten a divorce, and [Applicant] could no longer stay with his father.
- [Applicant] and I had a difficult relationship when he got back to Kerrville. He had been told many untrue things about me by his stepmother, including that he had been removed from my care by CPS and that I had abandoned him. [Applicant] saw that I was abusing drugs and saw the impact that it had on my life—including watching me get arrested and sent to jail on drug charges. During this period, I was treating [Applicant] like he was my friend, not my child, and this caused problems in our relationship. [Applicant] did not have the help that he
needed to grow into an independent adult during this time. He was smart but struggled in school because he did not have support at home. - Throughout [Applicant]’s childhood, I believe that he lacked the support and guidance he needed. When I cared for him as a child, I was preoccupied by his brother’s care and [Applicant]’s needs were on the back-burner. When he went to live with his father, I believe that [Applicant] was neglected due to his father’s drug use. When he returned to live with me, my own drug use prevented me from being the parent that he needed.
- [Applicant] graduated from high school and found himself in an unhealthy relationship with his girlfriend. The conflict in this relationship led to an altercation that caused [Applicant] to be sentenced to 5 years in the Texas Department of Criminal Justice (TDCJ).
- While in TDCJ custody, [Applicant] was exposed to significant trauma and hardship. [Applicant] had little financial or emotional support from our family and had to fend for himself. He experienced abuse and other traumatic events while in TDCJ (he has not shared the details of this abuse with me because he wants to protect me from the pain it will cause me to hear the specifics of the events that occurred).
- When [Applicant] was released from TDCJ, he moved in with his father. His plan was to train to be an electrician under his father and to take a job working at his father’s company. [Applicant] was traumatized from being in prison but was hopeful about his future work and seemed happy to have a closer relationship with his father.
- Unfortunately, three months after [Applicant] was released from jail his father died suddenly from heart disease. We were told his death was the result of his long-term drug abuse.
[Applicant] became very distraught after his father’s death. He felt that he not only lost his father, but also the opportunity to start a new career and the hopefulness that it brought him. [Applicant] became very depressed, and I believe he started using drugs again. He seemed mentally ill and was disconnected from reality. My mother suggested that we have [Applicant] involuntarily committed to a hospital for psychiatric treatment, but I asked her not to because I was worried that he would get worse if we took his freedom away from him again. I regret this decision. - In the months after his father’s death, [Applicant] was homeless. I did not see him much, and when I did, he was not well, appearing mentally ill and addicted to drugs. Eventually, [Applicant] was willing to accept help from my mother and started going to Hill Country MHDD for substance abuse and mental health treatment. He only had a few appointments before his arrest on this case.
- While [Applicant] was in jail and awaiting a trial on this case, I had very limited interactions with his defense team. I knew he was represented by the [PDO], but it was difficult getting in touch with anyone there. [Applicant] changed attorneys multiple times prior to trial. My contact with all these attorneys was minimal, and I would estimate that despite my efforts to communicate with them, over the months they represented my son, I spent less than one hour talking with all of [Applicant]’s attorneys and their staff combined. I was never invited by his attorneys to come to their office and talk with them about the case or potentially mitigating information for use at [Applicant]’s sentencing. They did not discuss matters of substance with me in relation to the case.
- It was so difficult reaching [Applicant]’s attorneys that at one point I started calling any lawyers who were working on his case. At one point, I called the District Attorney’s office in error, thinking that it was [Applicant]’s defense attorney, and
22. Prior to [Applicant]’s trial, I was not approached by his attorneys to discuss [Applicant]’s life history or adverse childhood experiences. I do not recall speaking to any of the attorneys’ support staff or to any investigators from their office. I was not aware that this kind of life information would be helpful to share as a part of [Applicant]’s sentencing. Had I been asked I would have provided [Applicant]’s attorneys and their staff with the above information prior to trial. I thought I would be called to testify in support of my son, but his attorneys never called me.
vi. Stephen Schwarz Affidavit
Stephen Schwarz, the principal of Hill Country High School, averred:
3. [Applicant] was a student at the Hill Country High School while I was the principal there. When contacted by his writ counsel investigator, I remembered him, and have consulted school records to get additional information about [Applicant]’s time at the school.
4. I remember [Applicant] being a student who struggled at school. He did not appear to have support from parents or guardians.
5. [Applicant] was homeless while he was a student at Hill Country High School. For our purposes, this meant that
6. Because he was homeless, [Applicant] was eligible for free meals at school.
7. I believe that [Applicant] was brought up in an environment that lacked guidance and structure, and where it was acceptable to smoke and drink.
8. [Applicant] struck me as a student who was immature and who needed guidance and to feel accepted. I remember that, when he was a 17- and 18-year-old student at the school, I would give him a hug because he seemed to need a hug and an assurance that he was a good person and that things would be alright. Not all students needed this kind of support, but [Applicant] did.
9. [Applicant] was able to graduate with his class, which was a big accomplishment for him, since he had so little support at home.
10. After he graduated, [Applicant] stopped by the school several times to visit with me. On several occasions he came to tell me he was doing well, and on other occasions he came to tell me he was struggling. It is common for students who did not have other support to return to the school to check in with me and other staff members. I recall that [Applicant] stopped by the school prior to his arrest on this case and seemed to be struggling but was trying to put his life back together.
11. I have known [Applicant] to be a kind- and good-hearted person. We have had conversations about our shared Christian faith.
12. I was not approached by his trial attorneys to provide information to them or to the court about [Applicant]’s background and character. I was available. Had I been
vii. Twilah Garrison’s Affidavit
Twilah Garrison, Applicant’s maternal great-grandmother, averred:
3. [Applicant]’s mother, Natalie, was in her early twenties and in college when he was born. She was young and just getting herself established. [Applicant] has a twin brother, Max. [Applicant] and Max were both born with a cleft lip, which required repair when they were still infants.
4. [Applicant]’s father left his mother when the twins were three months old. [Applicant]’s mother struggled to care for the twins on her own had little support in doing so. She had occasional babysitters and other people who helped from time to time, but she was responsible for the children throughout their early childhood.
5. [Applicant]’s father was absent during his early years, and I believe that this negatively impacted him. I saw that he wanted his father to be in his life and struggled because he wasn’t there. My father was absent in my own childhood, and I know how hard this can be for children. I believe it negatively impacted [Applicant].
6. When [Applicant] and his brother approached one year old, it became clear that there was something different about his brother Max. Max was not developing normally and doctors said something was wrong with him; I don’t recall the diagnosis they gave him. Max never learned to walk or talk. He has had many surgeries to try to repair problems with his legs. He is very disabled.
7. From a young age, [Applicant] was very dedicated to his brother Max. He has always been very protective of Max. Max has never been a normal child and [Applicant] has felt responsible for his wellbeing. I believe that this started when [Applicant] was very young, and that this feeling of responsibility kept [Applicant] from having a normal childhood.
8. [Applicant]’s mother was able to finish college, but it was hard for her to do so given her caregiving responsibilities. She would have to bring [Applicant] to school with her sometimes because she did not have childcare.
9. [Applicant] was always a smart boy. I was impressed by his wit and cleverness. He was always thinking ahead in situations and would surprise us by seeing things differently than everyone around him. I do not know what his grades were like or how he did in school, but I observed him to be a very intelligent child, and he is an intelligent person now.
10. [Applicant] was always loving and caring towards myself and my husband. [Applicant] had a very close relationship with my husband, and I remember that they would play together that [Applicant] responded well to having a supportive male presence in his life. Unfortunately, we lived in Missouri and were not able to see [Applicant] on a daily basis. When we did see him, we were struck by his kindness and affection.
11. I know that [Applicant] did go live with his father in Dallas for several years when he was in elementary school. I believe this was because his mother was overwhelmed by her caregiving responsibilities, as Max required many surgeries during this time. I do not know how long he was with his father, but I believe that he returned to Kerrville once his father got divorced, because he was not able to care for [Applicant] without the help of his ex-wife.
12. I believe that, because of the factors listed above, [Applicant] was a good child, but did not ever get to have a normal childhood. He ended up surrounded by drug use and bad behavior from the adults in his life, when he should have had structure and kindness and the love of a cohesive family during his formative years.
13. [Applicant] went to TDCJ, and during that time I had limited contact with him. When he got out of TDCJ, I saw him more often as I was living in Kerrville.
14. [Applicant] moved in with his father after his release. He was planning to go work with his father and seemed hopeful about his future. He was happy to have a closer relationship with his father than he had in the past. Our family was trying to have a good relationship with [Applicant]’s father, because even though he had abandoned [Applicant] and Max when they were young, he was showing up and supporting them now. I started spending time with [Applicant]’s father, along with my daughter Monica, and we felt hopeful about having a closer relationship with him and that he would be more present in [Applicant] and Max’s lives.
15. About three months after [Applicant] got out of TDCJ, his father died suddenly of heart problems. This was shocking to all of us. [Applicant] became very depressed after his father died. He lost his place to live as well as the job opportunity his father planned to provide him. He took this loss very hard. He seemed very sad, and it seemed like he was giving up on his future. He struggled after his father died and found himself in several unhealthy living situations.
16. Prior to [Applicant]’s trial, I had no interactions with his attorneys or their staff. No one reached out to me to get my perspective on [Applicant]’s life history and character. Had I been asked I would have provided [Applicant]’s attorneys and
viii. Sullivan’s Contravening Affidavit
Sullivan filed an affidavit responding to Applicant’s habeas allegations. He averred:
3. Response to Allegations of Unprofessional Behavior
I categorically deny the allegations that my behavior during courtroom proceedings was unprofessional, inappropriate, or prejudicial to [Applicant]’s case. Indeed, these allegations are being made more than two years after the trial. Specifically:
- Courtroom Conduct: At no time did I act in a manner that was disruptive, disrespectful or inconsistent with courtroom decorum. I conducted myself with the professionalism expected of an officer of the Court and acted diligently on behalf of [Applicant].
- Preparation and Diligence: Prior to trial, I met with our client at the jail and had in-court discussions to review evidence, discuss strategy, and explain the legal process. I conducted legal research, visited the crime scene, reviewed discovery materials (including all materials received from the State and independent investigators produced by the five previous defense attorneys the [PDO] assigned to this case), and consulted with necessary witnesses.
- Trial Performance: I exercised reasonable professional judgment in determining when to object, how to cross examine witnesses and what defense strategy to present. As discussed below, my decisions were based on trial strategy developed in light of the facts and applicable
law. I never promised [Applicant] a specific result in this case. - Defense Strategy: Lack of Mens Rea: The State had very strong evidence against [Applicant] for aggravated assault. However, I argued that the State failed to prove beyond a reasonable doubt that [Applicant] had the required mens rea to be guilty of this specific crime. To be guilty of aggravated assault, the law requires [Applicant] to have acted intentionally or knowingly. However, the lesser charge of deadly conduct only requires that [Applicant] acted recklessly, meaning that he was aware of the risk but chose to ignore it. Because recklessness is a lower standard than intentionally or knowingly, I asked the Judge to let the jury consider this lesser charge of deadly conduct, but the Judge refused to give that instruction. (The Appellate Court affirmed this ruling).
Thus, I knew that the jury would not hear an instruction on the lesser included offense of deadly conduct. And, I knew the Judge was strict and would enforce procedural rules rigorously. I therefore knew I had to reframe the mens rea argument within the bounds of the charge actually before the jury—aggravated assault—and focus on mens rea.
My strategy was threefold. I used the charge and noted that the mens rea in this case must be shown to be intentional or knowing beyond a reasonable doubt. I then submitted to the jury that the evidence at most showed recklessness. Finally, I told the jury that, if they found the evidence only showed reckless, they must acquit. I specifically used the Rule of Law and argued to the jury:
[Mr. Sullivan] Intentionally or knowingly. That’s the first element [you] have to direct [your] attention to. Anything less than intentionally and knowingly[:] probably, may have, probably could
have, sure looked like he did, maybe he was just negligent, maybe he was just reckless. [Prosecutor] Objection, Your Honor. He is arguing some things that are not in the charge.
[The Court] Overruled. Mr. Sullivan, you may proceed.
[Mr. Sullivan] Anything less than that, you pick the words, because knowingly and intentionally is the highest level we hold up there. 50-50 is not enough. 80-20, 90-10.
After the above exchange on the record, counsel could take what once was a lesser included argument and persuasively argue for an acquittal. This argument has even more authority considering that the Judge said “Overruled[,] Mr. Sullivan you may proceed.”
- Professional Reputation: I have not received any disciplinary actions or formal complaints related to this case. My conduct was in accordance with the Rules of Professional Conduct and standard practices for criminal defense representation.
4. Conclusion
The allegations of ineffective assistance are unfounded and do not reflect my conduct during representation. I respectfully submit this affidavit to clarify the record that these allegations are being raised years after the trial and my co-counsel on this case, who submitted several claims, remains employed with the [PDO]. My representation of [Applicant] was competent, ethical and consistent with the reasonable duties owed to every client.
a. An initial observation on Madden
The habeas court’s findings state the following regarding Madden: “By his own admission, co-counsel Madden was ‘a brand-new attorney’ and only licensed about 4 months. He does not claim to have any first[-]chair trial experience. The Court is of the opinion that his observations are not conclusive as to the issue of deficient performance. . . .” Finding of Fact No. 5. Yet, the habeas court went on to find that “trial counsels’ performances [at the punishment phase of trial] were not deficient.” Id.
These findings are in tension. In one paragraph, the habeas court states that Madden was too inexperienced to provide any meaningful insight into Sullivan’s performance, yet just experienced enough not to be constitutionally deficient during the punishment phase of Applicant’s trial. One of those conclusions cannot be true. If Madden indeed was too inexperienced to comment on his co-counsel’s performance, it follows that Madden’s solo performance during punishment, which, by his own admission, was “something [he] had no experience doing,” was constitutionally deficient. On the flip side, if Madden was experienced enough to effectively assist Applicant during the punishment phase of trial, it follows that the habeas court’s wholesale rejection of Madden’s habeas evidence was unfounded.
Even if these two findings are not in tension with one another, the habeas court’s determination that Madden’s affidavit was not credible while Sullivan’s was appears to rest on nothing more than their respective years in practice. This finding itself is not supported by the record. Madden’s recitation of facts does not depend on his experience—rather, Madden’s affidavit contains significant detail regarding Applicant’s trial and the preparation therefor, while Sullivan’s responsive affidavit is largely boilerplate. Moreover, the habeas court’s wholesale rejection of Madden’s affidavit ignores that Madden’s affidavit is corroborated by Applicant’s family members’ recollections of Sullivan’s performance, supra, at 12–21, by Applicant’s own recollection of his interactions with Madden and Sullivan, supra, at 11–12, and by the record. These observations weigh heavily in favor of finding Madden’s affidavit more credible than Sullivan’s, and the fact that Madden was less experienced than Sullivan is insufficient to overcome these other factors. Giving credence to Madden’s evidence, the inescapable conclusion is that Sullivan rendered Applicant ineffective assistance of counsel from start to finish.
b. Applicant contends that counsel failed to investigate and put on evidence regarding Applicant being chased into the convenience store
Applicant claims that trial counsel was ineffective for failing to investigate and put on evidence that Sheppard chased Applicant into the store and was
i. Deficiency
“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing
To set the scene, the trial evidence, based on Sheppard’s testimony, established the following:
[O]n May 13, 2022, he was in the bathroom at a Stripes convenience store attempting to use the restroom when [Applicant] attacked him. Sheppard testified that he entered the bathroom and that there were “a pair of legs walking back and forth in the stall.” According to Sheppard, [Applicant] “opened the stall door and . . . had a knife in his hand.” Sheppard said that the knife was “open” and was “pointed” at him. Sheppard testified that he said, “Oh,” and backed up, exiting the bathroom. Sheppard testified that he notified the store clerk of a man in the bathroom with a knife. [Applicant] then opened the door to the bathroom with the knife, and Sheppard detained [Applicant] until the police arrived and arrested him.
Honeycutt, 2024 WL 133066, at *1. At trial, Applicant’s attorneys attempted to attack the mens rea element of the offense. The cross-examination of Sheppard highlighted this effort:
Q: One last question. At any time during your investigation did you determine if Mr. Honeycutt had made a verbal threat to anyone?
A: I don’t recall exactly. I don’t know that there is an actual verbal threat, sir.
* * *
Q: Then there you say that as soon as you saw that knife — since you’re a combat vet, as soon as you saw that knife and he is walking towards you without any verbal threats, you just snapped and you choked him out, right?
A: Correct, because he was a threat, dangerous to myself and other people and himself at that time.
Q: Despite him making no verbal threats and just walking towards you?
A: You don’t need to make a verbal threat.
Id. at *2. In sum, the evidence of aggravated assault was weak, but sufficient.
However, there was another trial strategy that was available to Applicant’s trial attorneys that they failed to adequately investigate: Self-defense. Body camera evidence established that there may have been a relationship between Sheppard and the two individuals that were detained by law enforcement outside of the store, Treybig and Wilson.2 In the video, Treybig first told officers that she did not know Applicant but that she did know he “busted” the window on her house recently and shot through the window of her house on a separate occasion. Wilson confirmed this. Treybig also confirmed that she and Wilson had interacted
The habeas evidence establishes that Applicant’s trial attorneys had some knowledge of this potential fact. Applicant’s Exhibit D is a log maintained by the PDO of all actions by Applicant’s defense attorneys during the pendency of Applicant’s case. Exhibit D contains an entry on February 25, 2023, before Applicant’s trial. There, Madden notated that a Stripes employee had told Officer Virdell that a “guy and girl (elmer and treybig) were chasing [Applicant] down, doesn’t know why.” Another notation on the same date, again written by Madden, states:
Treybig says at 4:40 that she doesn’t know client, but that he busted out her window a couple weeks ago. She says he used to be friends with the last roommate she had, says some shit about ‘he told us if we see him at stripes, and then here he is, and then next thing you know there’s a knife…’ doesn’t make much sense. Komores never follows up.
(Emphasis added). Applicant proceeded to trial three days later, on February 28, 2023, with neither of Applicant’s attorneys following up further on the evidence that Madden had concluded did not “make much sense.”
Madden’s post-conviction investigation to develop a motion for new trial uncovered substantial evidence supporting a chase theory that was not developed or investigated before trial. Applicant’s Exhibit D reflects the following evidence:
- April 10, 2023: “. . . Monica (grandmother) states that Treybig and Wilson have supposedly signed statements indicating that they sent Sheppard in there after him.”
- April 18, 2023: “Turns out Sheppard has a criminal history . . . Was arrested in 2020 for Continuous Family Violence-FS in Harris County . . .”
- April 19, 2023: “Notes from Meeting with Carol Twiss [an investigator hired by Applicant’s family] . . . Treybig told the mom “If you’d have just done what I’d told you, none of this would have happened.” Carol met with Treybig, Treybig said they were chasing him for breaking out the windows in her car, then broke out a window in her house. Said she didn’t call the police because they just wanted to talk to him, they saw him at Stripes and he wouldn’t talk to them so they were chasing him around the pumps trying to get them to talk to them.” Later on [Applicant] came out, they chased him back in, their friend tackles him with the knife. Treybig knew [Sheppard] from Southern Sky, known [Sheppard] for a long time. They met one month before trial and had drinks together. Laura Phelps. Ethan terry says that [Applicant] was living with dopers, they took over the house that [Applicant] was living in.”
There is nothing strategic about not further investigating a potential relationship between Sheppard, Treybig, and Wilson beyond what was notated in Applicant’s Exhibit D. At a minimum, such an investigation would have revealed substantial evidence supporting an alternate defense or even bolstering counsels’
Beyond the lack of investigation supporting the nominated defense, Applicant’s Exhibit D reflects that neither of Applicant’s attorneys even endeavored to learn whether Sheppard, whom they knew would be the State’s primary witness, had a criminal history of his own, until after Applicant had been convicted. Failure to conduct this basic investigation, which would have uncovered impeachment evidence (at a minimum), falls below prevailing professional norms.
ii. Prejudice
To establish prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Admittedly, prejudice is a close call. Given the nature of the case, where the State’s entire evidence hinged on the testimony of Sheppard (since the incident was not captured on any video), a mens rea defense could certainly have been successful. However, Sullivan and Madden called no witnesses at trial, and
[Mr. Sullivan] Intentionally or knowingly. That’s the first element [you] have to direct [your] attention to. Anything less than intentionally and knowingly[:] probably, may have, probably could have, sure looked like he did, maybe he was just negligent, maybe he was just reckless.
[Prosecutor] Objection, Your Honor. He is arguing some things that are not in the charge.
[The Court] Overruled. Mr. Sullivan, you may proceed.
[Mr. Sullivan] Anything less than that, you pick the words, because knowingly and intentionally is the highest level we hold up there. 50-50 is not enough. 80-20, 90-10.
7 RR 110. In his affidavit, Sullivan stated:
After the above exchange on the record, counsel could take what once was a lesser included argument and persuasively argue for an acquittal. This argument has even more authority considering that the Judge said “Overruled[,] Mr. Sullivan you may proceed.”
Supra, at 28. To put it plainly, this assertion has absolutely no support. A trial court’s overruling of an objection during one’s closing argument is not an endorsement to the jury that the argument is successful or has authority. The remainder of Sullivan’s closing meandered for another two pages of trial transcript and never landed any substantial points. See 7 RR 111–12.
Now compare that with a defense that properly investigated the relationship between Sheppard, Treybig, and Wilson. It is hard to imagine that, at a minimum, Applicant’s mens rea defense would not have been much stronger. Furthermore, Sullivan and Madden would have had additional information to impeach Sheppard’s credibility with—primarily his criminal history.
Moreover, Sullivan and Madden may have been able to develop a self-defense theory of the case as an alternate defense for Applicant.
This is not a case where the evidence against Applicant was overwhelming such that any defense would have been fruitless, despite what Sullivan avers in his affidavit. Supra, at 27 (describing the State’s case as “very strong“). Rather, this is a case where Applicant’s trial attorneys simply failed to investigate the body camera evidence, which would have led to the discovery and presentation of additional exculpatory evidence, conceivably costing Applicant an acquittal. Applicant has demonstrated by a preponderance of the evidence that there is a reasonable probability, sufficient to undermine confidence in the outcome of Applicant’s trial, that but for Sullivan’s ineffectiveness, the result of the proceeding would have been different.
c. Applicant contends that counsel failed to adequately prepare for trial
Several other pieces of habeas evidence weigh in favor of finding that Sullivan was ineffective.
These allegations are also supported by Madden’s observations about Sullivan generally. Madden averred that “[i]t appeared to me that there was some sort of impairment with Mr. Sullivan, although I did not know him well enough to ask him personal questions.” Supra, at 6. Madden also described Sullivan’s “eccentricities,” including Sullivan not keeping “track of his cases” and Sullivan’s inability to “confer or answer intelligently questions from prosecutors about his own cases.” Supra, at 7. Moreover, Sullivan “would walk around with his pockets full of different colored markers and different colored crayons, but I
Second, the habeas evidence is replete with examples of Sullivan’s lack of preparation for Applicant’s trial. For example, Madden states that Sullivan “at the last minute . . . dumped a lot of trial duties into my lap,” including last minute cross-examinations where Madden “had no time to prep.” In fact, Madden took a majority of the cross-examinations at trial, including the cross-examination of the complaining witness, Sheppard. Applicant’s family members further averred that Sullivan “did not appear to be following the proceedings in the courtroom.” Supra, at 14. When describing the pre-trial preparation, Madden averred that Sullivan “did not know our client’s full name,” “could not answer my basic questions about what happened in this case and stumbled over case details,” “had not filed any pretrial motions . . . and had barely spoken to the client or the client’s family,” and generally “seemed lost.” Supra, at 6; see also supra, at 21. Applicant’s Exhibit D indicates that Sullivan spent just 12.9 hours working on Applicant’s case by the time of Applicant’s trial.
Even if this case was a close call as to ineffectiveness at the guilt/innocence stage of Applicant’s trial, the additional habeas evidence levied by Madden and Applicant’s family members further supports Applicant’s claims and tends to
V. Conclusion
An independent review of the record shows that Applicant has established, by a preponderance of the evidence, that Sullivan was ineffective at the guilt/innocence stage of Applicant’s trial. I join the Court’s order granting Applicant habeas relief.
Filed: June 25, 2026
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