Case Information
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Texas Court of Criminal Appeal
On Application for Unit of Daseus Corpus Tn 2010-11 DISMIDATED 2441 District Court forms Rows CONDONS: 10-20-15 No. W2-83, 165-01
Exearte Matthew Scott MEGraMONDYRESCREENHOL APPEALS OCT 222015 "Motion For Evidentiacly heuring"
Come Now Applicant Matthew W. Groth to.se Requeating the Court to grant "evidentiary hearing" at the earliest convenience as to Support as Silows?
District Court Duties
The State had 15 days after service of Application July 22,2015 to the Answer. due August 6,2015. 11.07, Sec 3(b). "Within 20 days of expiration of time for state to answer, it shall be duty of the convicting court to decide whether there are contraverted, previously unresolved facts material to the legality of Applicants confinement" due May 26,2015. 11.07, Sec 3(c) "If convicting court decides there are contraverted, previously unresolved fuets which are material to the legality of the Applicants confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state to Reply, due Sept 15,2015 designating the issues to be resolved" 11.07, Sec 3(d). Once this order is issued entered, the trial court should resolve the issue. MECree V. Hamplon. 824 S.w. 2d 578 (Tex Crim. App 1910). The designation of issues suspends the time limits set out in 11.07. MECree, Supra. There is w Particular Firm for this order. It is sufficient of the Court simply states "The court finds there are contraverted previously, unresolved fuets material to the legality of Applicants, ie, whether he reciaved ineffective assistance of counsel.
*2 These issues shall be resolved by officials and on evidentiary hearing." If us issues exist frommital is required, along with application, any answers filed, certificate reciting the date upon which first finding was made. MoD3(C). District Court 'soues findings of fact and conclusion of law which are transmitted to the Court of Criminal Appeal II.Ol. Sec 3(C). If inetfective assistance of counsel raised and reflected on direct because record isn't adequately developed, it may be rehihigated on habeas Corpus, Exparte Torres, 943 S.W, 2d 464 (Tek. Crim. Ap. 1992).
Decision by trial Court to deny will -3est-conviction depict from Applicant prior to filing II.Ol, should be, supplemented to the Record of Conviction; for the Court to Make Appropriate determination of Surs diction properly obtained and showed up 85y "Admanishments" of Applicants Open-pley, by the correct States Altemey office, See. Matiors submitted tost-conviction see MÉrath v. State Repy brief' 12-16-00129-CR 19.3.7.
Decision whether Live Evidentiary Hearing is Necessary. The II. 69 gives the trial Court leenay on how evidence is gathered on a writ Application; on some issues, officials may be sufficient, Hower, on issues that involve a judgement concerning credibility; which Applicant raises, a live evidentiary hearing is preferable. On some occasions, the Cunt of Criminal Appeals will order the trial court to conduct a live hearing, See Exparte Brown, 205 S.W. 3d 539 (Te, Crim.Ap)(C.C.A. Remended for Rehearing).
*3 Claims of ineffective assistance of counsel frequently require an evidentiary hearing where there's a dispute between the client and attorney over what occurred, the trial court is required to make a credibility determination that can best be made after a line hearing.
Gallego v. United States, 141 F. 3d 1146 (11th Cir 1944) is particularly instructive on the question of judging credibility when counsel and the client disagree on practical questions. The issue in Gallego whether the defendant's counsel rendered (E.M.C.). In Gallego, the court stated "It is perfectly legitimate for the district court, to fine based on all the evidence in the record, that a defendant's testimony about his participation in a crug scheme is not credible. The magistrate judge here, however, based the decision on the fact that the defendant's allegations were unsubstantiated and incorrectly found as a mortem of law, the defendant could not carry his burden without presenting some evidence in addition to his own words, which is contrary to that of counsel's. The magistrate says nothing about internal consistency of the defendant's testimony, or his candor or defen- ator on the stand. Indeed the magistrate does not even state simply why the defendant's lawyer is the more credible witness in this case. There is nothing in the report to indicate the Hagistrate weighed defendant's credibility. Coupon U.S. 1. Camarino, 49 F. 3d 349 (11th Cir. 1944) Court made specific findings of facts after a evidentiary hearing
*4 regarding defendants credibility) cert. denied, 514 U.S. 1090 115 S.C. (1995) The fact that the defendants testimony is uncorroborated is not enough standing alone to support a creditably fund- ing. Counsel's testimony was also unsubstantiated by other evidence. While we appreciate the concerns enunciated in understand, we cannot adopt a per-se" credit counsel in case of conflict rule" which allows that in any case where the issues come down to the "liked" testimony!" of the defendant against the contradictory testimony of counsel, defendant is going to lose every time. We therefore remind for a New evidentiary hearing. The right to counsel is by far the most important of a defendant's constitutional rights because it affects the ability of a defendant to assert a myriad of other rights. As Justice Sutherland explained in Powellv. Hlabim 9, 237 U.S. 45, 53 S.C. (1932) "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated laymen has small and some time no skill in the science of law. If changed with a crime, he is incapable generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence."
*5 Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible, the backs both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the dangers of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much were true is it of the ignorant and illiterate, or those feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reassombly may not be doubted that such a refusal would be a denial of a hearing, and therefore, of due process in the constitutional sense. It at 68-69,533 ct at 63-64.
Prayer Wh Before premises Applicant Pays this court grant Evidentiary hearing, due to infor mating and allow presence to be honored, and Appoint-Not-Conve Counsel Consent Respect Fully Submitted Mi- f 1952772 Beto Unit 1391 Fm 3328 Fem. Colony Pg 5 Menthen 5 M 2040
*6 Certificate of Service This is to certify a true and correct copy of this eridentary hearing was mailed to the District Court Cleer, or hand delived, on October 20, 2015, and was shared a copy with Texas Court of Criminal Appouls. Clerk.
Repetfully Submitted Matthews H. Grath 1852772 Beto Unit 1341 Fm 3328 Tenn Cotany Tr 15860 Matthews H. Grath
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1804 Woodbridge Dr Subjlue Springs, TX. 75482-3637 (Tfls ar (603) 335-8412 (wt.5033358412) L Call (wit.9033358412)
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Status Acquired Updated TX Eligible To Practice in Toxics 1993 05/10/2015
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