Allen, Lynwyatt, WR-83,448-01

Allen, Lynwyatt

WR-83,448-01

| Tex. App. | Sep 30, 2015

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Case Information

*0 RECEIVED COURT OF CRIMINAL APPEALS 9/30/2015 ABEL ACOSTA, CLERK

*1 WR-83,448-01,02,03 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/29/2015 5:55:11 PM Accepted 9/30/2015 10:23:29 AM

ABEL ACOSTA CLERK CAUSENO.WR-83-448-01 CAUSE NO. WR—83-448-02 CAUSE NO.WR-83-448-03

IN THE COURT OF CRIMINAL. APPEALS AUSTIN. TEXAS IN THE MATTER OF THE WRITS OF HABEAS CORPUS FILED BY LYNWYATT ALLEN REQUEST FOR LEAVE TO FILE MOTION FOR COURT TO VACATE ITS ORDER DENYING WRIT AND REMAND FOR EVIDENTIARY HEARING

IN THE ALTERNATIVE REQUEST FOR COURT TO VACATE ITS ORDER DENYING APPLICANTS PETITION AND REMAND FOR EVIDENTIARY HEARING ON ITS OWN MOTION.

Cause arising out ofthe I86"‘ District Coun, Bexar County. Texas The Hon. Jefferson Moore, Presiding KENNETH ERIC BAKER SBN #2404543‘) "OfCounseI“ to DiazIakob. Attorneys L.L.C. Alamo Towers North 901 N.E. Loop 410 Suite 900 San Antonio, Texas 78209 (.210) 226-4500 (p) (210) 226-4502 (f)

*2 TO THE HONORABLE COURT:

Relief reguested: Reconsideration or the court’s denial of applicanfs Habeas Petition’s without hearing and remand for an evidentiary hearing.

Procedural statement of the Case On March 18“‘, 2015, Applicant, Lynwyatt Allen, ﬁled an application for a Writ of Habeas Corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. (Exhibit AB &C) alleging ineffective assistance of counsel. On March 23"‘, 2015 the trial court entered an Order 011 Application for Post Conviction Relief (Exhibit D). The court found that there were controveited issues that “create a necessity for a hearing, but that the matter is capable of resolution by affidavit”. The court ordered trial counsel to submit an afﬁdavit conﬁrming or denying the allegations by May 7”‘, 2015 and further directed that trial counsel serve the undersigned post-conviction counsel with a copy of the affidavit (trial counsel’s affidavit attached as exhibit E). Simultaneously the court issued an Designating Issues (Exhibit F) ﬁnding that the issue of ineffective assistance of counsel required resolution. Trial counsel failed to serve the undersigned counsel until March 20"‘, 2015 (trial counsel’s letter to the undersigned is attached as Exhibit G). 10 days later the court issued an QlgI_er_ and Conclusions of Law (Exhibit H) recommending relief be denied based on the statement that trial counsel “sufficiently rebuts all allegations made against him”. This court issued an order denying applicant’s writs “on the findings of the trail court” (Exhibit I,J,K)

Memorandum 1. Motions filed pursuant to art.11.07 or art. 11.071 of the Texas Code of Criminal Procedure and Rule 79.2gdt Counsel is aware of the limitations imposed by this foregoing rule and therefore asks the court to reconsider the denial sua spante based upon the issues and facts presented in this motion or request.

*3 2. Due process requires an evidentiarv hearing to resolve controverted facts where it is the word of the defendant against the word of counsel; cross examination is foundational to get to the truth in matters where is the word of trial counsel against the word of the defendant.

If a trial court ﬁnds there are controverted, previously unresolved facts material to the legality of applicant’s conﬁnement, i.e., whether he received ineffective assistance of counsel, as the court in this matter did, then these issues shall be resolved in a timely manner: Coode of Criminal Procedure 11.07 art 3 (d): If the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant's confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating the issues of fact to be resolved. To resolve those issues the court may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection

While this court gives deference to the manner in which a trial court gathers evidence due to the wide variety of claims made in Habeas applications, matters which can only be resolved by a credibility determination usually require a live hearing where the court can observe the witnesses and where the statements of the witnesses can be subjected to effective cross examination. This court often orders evidentiary hearings where the credibility of a witness in at issue. Ex Parre Brown, 205 SW. 3d 538 (Tex. Crim. App. 2006); Ex Pa/‘te Thompson, 153 S.W. 3d 416 (Tex. Crim. .App. 2005). This is particularly important in claims of ineffective assistance of counsel where trial counsel ﬂatly denies the defendant’s allegations calling him a liar and responding with “not true” to each allegation of the defendant. (see Exhibit E). The 11'“ circuit stated the problem well in Gallego v. United States, 174

1“‘ Cir. 1999) “Where issues come down to the testimony of the defendant against the F.3d 1196 (1 contradictory testimony of counsel, the defendant is going to lose every time” Where there is a dispute between the client and the attorney over what occurred the trial court is required to make a credibility determination that can best be made after a live hearing. In Gallegos, the court pointed out that “magistrate does not even state simply why the defendant’s lawyer is the more credible witness in this case.”

*4 Based upon the foregoing the applicant though counsel respectfully requests this court remand the matter to the trial court for an evidentiary hearing where the completely contradictory statements of the applicant and trial counsel may be tested by cross examination and the trial court can make a credibility determination between the two.

Respectfully submitted, By

Kenneth Eric Baker SBN 24045439 Alamo Towers North 901 N.E. Loop 410, Suite 900 San Antonio, Texas 78209 210.226.4500 (P) 210.226.4502 (F) Keb1aw@gmail.com

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Motion was served upon the attorney for the State and on the Trial Court on September 29"‘. 2015.

‘ Attenﬁey for Applicant *5 Exhibit A

'

*6 F ILEG. . ONNA KAY MEKINNEY’ ' Case N°- msrmcr CLERK _ . . BEXAR COUNTY’ (The Clerk of the convicting court Wlll ﬁll tlns line In.) ‘I A l|= 05 INS MAR I IN THE COURT OF CRIMINAL APPEALS OF TEXAS DEPUTY APPLICATION FOR A WRIT OF HABEAS CORPU§Y———V—-————~——T

SEEKING RELIEF FROM FINAL F ELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 NAME: Lynwyatt Allen DATE OF BIRTH: 01/25/1991 PLACE OF CONFINEMENT: Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX SID NUMBER: 1001292 TDCJ-CID NUMBER: _01935579

This application concerns (check all that apply): (1) N/A parole xx a conviction N/A mandatory supervision xx a sentence

N/A out-of-time appeal or petition for N/A time credit discretionary review What district court entered the judgment of the conviction you want relief from? (2) (Include the court number and county.) 186“ District Court, Bexar County What was the case number in the trial court?

(3) Cause No: 2013CR5726 What was the name of the trial judge?

(4) Teresa Hen" Effective: Januag 1, 2014 ^[1] *7 Were you represented by counsel? If yes, provide the attorney's name: (5) Paul J. Goeke, SBN 08059250 What was the date that the judgment was entered?

(6) 06/06/2013 For what offense were you convicted and what was the sentence?

(7) Intoxication assault 10 yrs If you were sentenced on more than one count of an indictment in the same court at

(8) the same time, what counts were you convicted of and what was the sentence in each count? What was the plea you entered? (Check one.)

(9) guilty-open plea _xx_ guilty-plea bargain not guilty nolo contenders/no contest

If you entered different pleas to counts in a multi—count indictment, please explain: What kind of trial did you have?

(10) NA no jury NA jury for guilt and punishment NA jury for guilt, judge for punishment *8 (11) Did you testify at trial? If yes, at what phase of the trial did you testify?

NA

(12) Did you appeal from the judgment of conviction? _ yes xx no If you did appeal, answer the following questions: (A) What court of appeals did you appeal to? NA (B) What was the case number? NA (C) Were you represented by counsel on appeal? If yes, provide the attorney’s

name:

NA

(D) What was the decision and the date of the decision? NA (13) Did you ﬁle a petition for discretionary review in the Court of Criminal Appeals? NA yes NA no If you did file a petition for discretionary review, answer the following questions: (A) What was the case number? NA (B) What was the decision and the date of the decision? NA

(14) Have you previously filed an application for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure challenging this conviction? _ yes

_xx_ no If you answered yes, answer the following questions: (A) What was the Court of Criminal Appeals’ writ number?

*9 (B) What was the decision and the date of the decision? (C) Please identify the reason that the current claims were not presented and could

not have been presented on your previous application. Do you currently have any petition or appeal pending in any other state or federal (15) court? yes xx no If you answered yes, please provide the name of the court and the case number: If you are presenting a claim for time credit, have you exhausted your administrative (16) remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction, including state jail felonies) xx no

yes If you answered yes, answer the following questions: (A) What date did you present the claim? (B) Did you receive a decision and, if yes, what was the date of the decision? If you answered no, please explain why you have not submitted your claim:

*10 (17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then brieﬂy summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. If you have more than four grounds, use pages 14 and 15 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form. You may include with the form a memorandum of law if you want to present legal authorities, but the Court will not consider grounds for relief set out in a memorandum of law that were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum.

*11 GROUND ONE: Ineffective assistance of counsel FACTS SUPPORTING GROUND ONE: The attorney for Mr. Lynwyatt Allen (Defendant) pressured him into a plea. He was not prepared to go to trial. Just before trial a plea bargain was presented according to the following terms: An Application for deferred adjudication and probation could be made and a 15 year cap. The Attorney for the Defendant represented that no ﬁnding of a deadly weapon would be made and That the Defendant would receive deferred adjudication because he was “eligible”. The Defendant was actively mi-led by his attorney as to his application for probation being Granted as well as in the matter of no deadly weapon ﬁnding being made. If the attorney had properly advised the defendant that he might not receive deferred adjudication he would not have entered a no-contest plea. If the defendant’s attorney had told the defendant that a deadly weapon ﬁnding would be made he would not have entered his plea. I was speciﬁcally told there would be no ﬁnding of a deadly weapon *13 GROUND TWO: FACTS SUPPORTING GROUND TWO:

N Vi *14 A! /4 *15 GROUND THREE: AH/L ‘(\'

FACTS SUPPORTING GROUND THREE: *17 GROUND FOUR: FACTS SUPPORTING GROUND FOUR:

A//(L

*18 13

GROUND:

*19 MA VI

FACTS

SUPPORTING GROUND: MA *20 NW 15 *21 WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be veriﬁed or it will be dismissed for non-compliance. For veriﬁcation purposes, an applicant is a person ﬁling the application on his or her own behalf. A petitioner is a person ﬁling the application on behalf of an applicant, for example, an applicant=s attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the AOath Before a Notary Public@ before a notary public or the AInmate=s Declaration@ without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and then complete APetitioner=s Information. @ A non-inmate applicant must sign the AOath Before a Notaiy Public@ before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the veriﬁcation as petitioner.

A non-inmate non-attorney petitioner must sign the AOath Before a Notary Public@ before a notary public and must also complete APetitioner=s lnformation.@ An inmate petitioner must sign either the AOath Before a Notary Public@ before a notary public or the AInmate=s Declaration@ without a notary public and must also complete the appropriate APetitioner=s Information.@

OATH BEFORE A NOTARY PUBLIC

STATE

OF TEXAS COUNTY OF Ecgg \£g,g_)/d<+‘\ Ea»

, being duly sworn, under oath says: AI am (circle one) in this action and know the contents of the above application the applieant / /A 27 for a writ of habeas corpus and, according to my belief, the facts stated in the application are true.@

Signature of one) SUBSCRIBED AND SWORN T0 BEFORE ME THIS ‘L-“DAY ormdtvelt 20 if .

.»~9/Q

g w my my <\ /’ v» JOAQUIN ALBERYO romzo. JR. Si n /me ~ N tary PubIic,State otlexos ot Pu OMV Commission Expives June 17. 2018 16 *22 PETITIONER=S INFORMATION Petitioner=s printed name: K9 ch» Ea. W State bar number, if applicable: ZELO l 5 ii‘ 3

T-F"J\5

Rd: 7??

Address:

éa ;LJJr~>~tu ‘rk 7.97.‘; ” Lfgod Telephotézf 93 ' 7'26 Fax: INMATE=S DECLARATION

, am the applicant / petitioner (circle one) and

I,

being presently incarcerated in , declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct. Signed on , 20 . Signature of Applicant / Petitioner (circle one) 17 *23 Exhibit B

HLEB

*24 MNNA KAY MSKINNEY

I

Case No. DISTRICT CLERK - BEMR COUNTY (The Clerk of the convicting court will fill this line in: . 1315 MR IT A "=05 IN THE COURT or CRIMINAL APPEALS OF TEXAS BEPUTY i3Y__.____,._______ APPLICATION FOR A WRIT OF HABEAS CORPUS SEEIGNG RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 NAME: Lynwyatt Allen DATE OF BIRTH: 01/25/1991 PLACE OF CONFINEMENT: Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX TDCJ-CID NUMBER: _01935579 SID NUMBER: 1001292

This application concerns (check all that apply): (1) N/A parole xx a conviction xx a sentence N/A mandatory supervision N/A time credit N/A out-of—time appeal or petition for

discretionary review What district court entered the judgment of the conviction you want relief from? (2) (Include the court number and county.) 186"‘ District Court, Bexar County What was the case number in the trial court?

(3) Cause No: 2013CR5727 What was the name of the trial judge?

(4) Teresa Herr Effective: Januagg 1, 2014 ^[1] *25 Were you represented by counsel? If yes, provide the attorney's name: (5) Paul J. Goeke, SBN 08059250 What was the date that the judgment was entered?

(6) 06/06/2013 For what offense were you convicted and what was the sentence?

(7) Intoxication assault 10 yrs If you were sentenced on more than one count of an indictment in the same court at

(3) the same time, what counts were you convicted of and what was the sentence in each count? What was the plea you entered? (Check one.)

(9) guilty-open plea _xx_ guilty—plea bargain not guilty nolo contemlere/no contest

If you entered different pleas to counts in a multi-count indictment, please explain: What kind of trial did you have?

(10) NA no jury NA jury for guilt and punishment NA jury for guilt, judge for punishment *26 Did you testify at trial? If yes, at what phase of the trial did you testify? (11)

NA

Did you appeal from the judgment of conviction?

(12) XX 110 __ yes If you did appeal, answer the following questions: (A) What court of appeals did you appeal to? NA (B) What was the case number? NA (C) Were you represented by counsel on appeal? If yes, provide the attorney's

name:

NA

(D) What was the decision and the date of the decision? NA Did you file a petition for discretionary review in the Court of Criminal Appeals?

(13) NA yes NA no If you did file a petition for discretionary review, answer the following questions: (A) What was the case number? NA (B) What was the decision and the date of the decision? NA Have you previously filed an application for a writ of habeas corpus under Article

(14) 11.07 of the Texas Code of Criminal Procedure challenging this conviction? _xx_ no __ yes If you answered yes, answer the following questions: (A) What was the Court of Criminal Appeals’ writ number? *27 (B) What was the decision and the date of the decision? (C) Please identify the reason that the current claims were not presented and could

not have been presented on your previous application. Do you currently have any petition or appeal pending in any other state or federal (15) court? yes XX___ [10 If you answered yes, please provide the name of the court and the case number: If you are presenting a claim for time credit, have you exhausted your administrative

(16) remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any ﬁnal felony conviction, including state jail felonies) __ yes XX [10 If you answered yes, answer the following questions: (A) What date did you present the claim? (B) Did you receive a decision and, if yes, what was the date of the decision? If you answered no, please explain why you have not submitted your claim:

*28 (17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then brieﬂy summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. If you have more than four grounds, use pages 14 and 15 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form. You may include with the form a memorandum of law if you want to present legal authorities, but the Court will not consider grounds for relief set out in a memorandum of law that were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum.

*29 GROUND ONE: Ineffective assistance of counsel FACTS SUPPORTING GROUND ONE: The attorney for Mr. Lynwyatt Allen (Defendant) pressured him into a plea. He was not prepared to go to trial. Just before trial a plea bargain was presented according to the following terms: An Application for deferred adjudication and probation could be made and a l5 year cap. The Attorney for the Defendant represented that no ﬁnding of a deadly weapon would be made and That the Defendant would receive deferred adjudication because he was “eligible”. The Defendant was actively mi-led by his attorney as to his application for probation being Granted as well as in the matter of no deadly weapon ﬁnding being made. If the attorney had properly advised the defendant that he might not receive deferred adjudication he would not have entered a no—contest plea. If the defenda.nt’s attorney had told the defendant that a deadly weapon ﬁnding would be made he would not have entered his plea. I was speciﬁcally told there would be no ﬁnding of a deadly weapon *31 GROUND TWO: FACTS SUPPORTING GROUND TWO:

N \A *32 M /4 *33 GROUND THREE:

.«H/‘«

^[1] \'

FACTS SUPPORTING GROUND THREE: I\J\A« I [ *35 GROUND FOUR: FACTS SUPPORTING GROUND FOUR:

*36 N1 ? 13 *37 GROUND: MA I

FACTS

SUPPORTING GROUND: MR 14 *38 N UL

I5

*39 WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be veriﬁed or it will be dismissed for non-compliance. For veriﬁcation purposes, an applicant is a person ﬁling the application on his or her own behalf. A petitioner is a person ﬁling the application on behalf of an applicant, for example, an app1icant=s attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the AOath Before a Notary Public@ before a notary public or the Alnmate=s Declaration@ without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and then complete APetitioner=s lnforrnation.@ A non—inmate applicant must sign the AOath Before a Notary Public@ before a notary public unless he is represented by a licensed attorney, in which case the attorney may Sign the verification as petitioner.

A non—inmate non—attomey petitioner must sign the AOath Before a Notary Public@ before a notary public and must also complete APetitioner=s Information.@ An inmate petitioner must sign either the AOath Before a Notary Public@ before a notary public or the AInmate=s Declaration@ without a notary public and must also complete the appropriate APetitioner=s Information.@

OATH BEFORE A NOTARY PUBLIC

STATE

OF TEXAS COUNTY OPE; }_Q_I;K

#45114 (,fL E ,.—. W , being duly sworn, under oath says: AI am ' (circle one) in this action and know the contents of the above application the applicant / u o .-ST.‘ ~ ~ for a writ of habeas corpus and, according to my belief, the facts stated in the plication are true.@

Signatur of one) SUBSCRIBED AND SWORN TO BEFORE ME THIS ^[1] “DAY OF ESQVC/l\ , 20 [ ” ’ ’ ‘ ‘ ~~ ~ moum ALBERIO TORANZO. JR. Slgnature of Otary P Bhc Notary Public, Stove of lexos My Commission Expires June 17. 2018 "'~’.,$’,‘..{\‘-*‘ 16 *40 PETITIONER=S INFORMATION Petitioner=s printed name: My ,J A) L114 EC \¢Q/

‘i 3 6‘ State bar number, if applicable: 4*‘ 3 3 7 i S TFWJ *5 3+

Address:

S»! \>< 79205 Telephongf 1.9’) 226" L7’ 35 0 Fax: (Z//9,) Z26 P #501

INMATE=S

DECLARATION

, am the applicant / petitioner (circle one) and

I,

being presently incarcerated in , declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct.

Signed on , 20 Signature of Applicant / Petitioner (circle one)

17 *41 Exhibit C

«

*42 Ff.l.-AE§t.'=!. . A . (The Clerk ofthe convicting court will ﬁll this line in.) ‘min ceuntrv 'l A ll: 05 INS MAR ‘I IN THE COURT or CRIMINAL APPEALS or TEXAS .

DEPUTY

APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL F ELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 NAME: Lynwyatt Allen DATE OF BIRTH: 01/25/1991 PLACE OF CONFINEMENT: Dominguez State Jail 6535 Cagnon Rd, San Antonio, TX SID NUMBER: 1001292 TDCJ-CID NUMBER: _01935579

This application concerns (check all that apply): (1) N/A parole xx a conviction N/A mandatory supervision xx a sentence N/A time credit N/A out-of-time appeal or petition fo -

discretionary review What district court entered the judgment of the conviction you want relief from? (2) (Include the court number and county.) 186“ District Court, Bexar County What was the case number in the trial court?

(3) Cause No: 20 I BCR5726 What was the name of the trial judge?

(4) Teresa Herr Effective: January 1, 2014 ^[1] *43 Were you represented by counsel? If yes, provide the attorney's name: (5) Pau.l J. Gocke, SBN 08059250 What was the date that the judgment was entered?

(5) 06/06/2013 For what offense were you convicted and what was the sentence?

(7) Intoxication assault 10 yrs If you were sentenced on more than one count of an indictment in the same court at

(8) the same time, what counts were you convicted of and what was the sentence in each count? What was the plea you entered? (Check one.)

(9) __ guilty-open plea _xx__ guilty-plea bargain _ not guilty

nolo contemiere/no contest If you entered different pleas to counts in a multi-count indictment, please explain: What kind of trial did you have?

(10) NA no jury NA jury for guilt and punishment NA jury for guilt, judge for punishment *44 Did you testify at trial? If yes, at what phase of the trial did you testify? (11)

NA

Did you appeal from the judgment of conviction?

(12) _ yes xx no If you did appeal, answer the following questions: (A) What court of appeals did you appeal to? NA (B) What was the case number? NA (C) Were you represented by counsel on appeal? If yes, provide the attorney's

name:

NA

(D) What was the decision and the date of the decision? NA Did you file a petition for discretionary review in the Court of Criminal Appeals?

(13) NA yes NA no If you did ﬁle a petition for discretionary review, answer the following questions: (A) What was the case number? NA (B) What was the decision and the date of the decision? NA Have you previously ﬁled an application for a writ of habeas corpus under Article

(14) 11.07 of the Texas Code of Criminal Procedure challenging this conviction? _ yes

_xx_ no If you answered yes, answer the following questions: (A) What was the Court of Criminal Appeals’ writ number?

*45 (B) What was the decision and the date of the decision? (C) Please identify the reason that the current claims were not presented and could

not have been presented on your previous application. Do you currently have any petition or appeal pending in any other state or federal (15) court? xx_ no yes If you answered yes, please provide the name of the court and the case number: If you are presenting a claim for time credit, have you exhausted your administrative (16) remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction, including state jail felonies) xx no

*46 (17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then brieﬂy summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. If you have more than four grounds, use pages 14 and 15 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form. You may include with the form a memorandum of law if you want to present legal authorities, but the Court will not consider grounds for relief set out in a memorandum of law that were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum.

*47 GROUND ONE: Ineffective assistance of counsel FACTS SUPPORTING GROUND ONE: The attorney for Mr. Lynwyatt Allen (Defendant) pressured him into a plea. He was not prepared to go to trial. Just before trial a plea bargain was presented according to the following terms: An Application for deferred adjudication and probation could be made and a 15 year cap. The Attorney for the Defendant represented that no ﬁnding of a deadly weapon would be made and That the Defendant would receive deferred adjudication because he was “eligible”. The Defendant was actively mi—led by his attorney as to his application for probation being Granted as well as in the matter of no deadly weapon ﬁnding being made. If the attorney had properly advised the defendant that he might not receive deferred adjudication he would not have entered a no-contest plea. If the defendant’s attorney had told the defendant that a deadly weapon ﬁnding would be made he would not have entered his plea. I was speciﬁcally told there would be no ﬁnding of a deadly weapon *49 GROUND TWO: FACTS SUPPORTING GROUND TWO:

W Vi *51 GROUND THREE:

M/‘«

FACTS SUPPORTING GROUND THREE: *52 N //L *53 GROUND FOUR: FACTS SUPPORTING GROUND FOUR:

*54 N: P 13 *55 GROUND: MA ^[4]

FACTS

SUPPORTING GROUND: M/x *56 15 *57 WHEREF ORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDIN G.

VERIFICATION

This application must be veriﬁed or it will be dismissed for non—compliance. For verification purposes, an applicant is a person ﬁling the application on his or her own behalf. A petitioner is a person ﬁling the application on behalf of an applicant, for example, an applicant=s attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the AOath Before a Notary Public@ before a nota.ry public or the AInmate=s Declaratione without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the AOath Before a Notary Public@ as petitioner and then complete APetitioner=s Information. @ A non~inmate applicant must sign the AOath Before a Notary Public@ before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the veriﬁcation as petitioner.

A non-inmate non-attorney petitioner must sign the AOath Before a Notary Public@ before a notary public and must also complete APetitioner=s Information.@ An inmate petitioner must sign either the AOath Before a Notary Public@ before a notary public or the Alnmate=s Declaratione without a notary public and must also complete the appropriate APetitioner=s Information.@

OATH BEFORE A NOTARY PUBLIC

STATE

OF TEXAS COUNTY OF ECEC

iéq Al/d -4 E Q Q , being duly sworn, under oath says: Al am (circle one) in this action and know the contents of the above application the app]-ieant / for a writ of habeas corpus and, according to my belief, the facts stated in the application are true.@

- Sigzéﬁe of one) SUBSCRIBED AND SWORN TO BEFORE ME THIS I é-1(I\DAY OF/Y\I»‘{V’&j‘\ 20 {ST . g W my @

....

' 415"’: JOAQUIN ALBERTO IORANZO. JR. «

~~ otorv Public. 5*°"~’~‘ °' 79°‘ Si n ure ot Pu My Commission Expires June I 7. 201 ^[8] *58 PETITIONER=S INFORMATION Petitioner=s printed name: Kﬂ Cf!" E4 KC/ State bar number, if applicable: -ZE-‘:0 i S ^[1] 3

E ‘T.{~"’J\$ 7* 7?:

Address:

éw Mme, “TX 7327 " [+300 TeIepho£7/ ”\) 126 ~ Fax: INMATE=S DECLARATION , am the applicant / petitioner (circle one) and I ^[9]

being presently incarcerated in , declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct. Signed on , 20 Signature of Applicant / Petitioner (circle one) 17 *59 Exhibit D *60 NO. 20l3CR5726-W1 2013CR5727—W1 20] 3CR2728-W]

EX

PARTE IN THE DISTRICT COURT

§

186” JUDICIAL DISTRICT § LYNWYATT ALLEN BEXAR COUNTY, TEXAS

§

ORDER ON APPLICATION FOR POST CONVICTION WRIT The Court having concluded that the allegations of ineffective assistance of counsel contained in an application for a post-conviction writ of habeas corpus create a necessity for a hearing, but that the matter is capable ofresolution by means of affidavits, it is ORDERED, as follows: That the Clerk forward a copy ofthe writ application and its attachments to Paul Joseph Goeke, 115 E. Travis St., Suite 1145, San Antonio, Texas 78205.

l. That, on or before May 07, 2015, Paul Goekc file with this court his written afiidavit conﬁrming or denying the allegations of ineffective assistance. a. Please respond to Applicanfs allegations regarding the claims of ineffective

assistance of counsel, including, but not limited to, the following: (I) Counsel pressured Applicant into taking a plea because he was not prepared to go

to trial. (2) Applicant was misled by Counsel as to his application for probation being granted as well as in the matter of no deadly weapon ﬁnding being made. (3) Had Counsel properly advised the Applicant that he might not receive deferred adjudication he would not have entered a no—c0ntest plea. (4) Counsel speciﬁcally told Applicant that there would be no ﬁnding of deadly weapon. After you have reviewed the Ap_plicant’s writ application, please address any other issues raised by Applicant not speciﬁcally listed above and of which you have knowledge or information. ^[7] If there is any additional information not present before the court at this time that is relevant to the court’s understanding of this matter, please include any such information to clarify this issue.

Simultaneously, Paul Goeke shall deliver the affidavit and summation to Attorney for *61 Applicant Kenneth Eric Baker, 115 E. Travis, Suite 333, San Antonio, Texas 78205. After these matters have occurred, this Court will forward its Order including its ﬁndings to the Court of Criminal Appeals for its disposition of the matter. information contained in an affidavit ﬁled pursuant to this order does not represent a violation of the attorney—client privilege. See TEX. R. EVID. 503(cl)(3)(stati.ng that communications relevant to issues concerning breach of counsel’s duty to his client represents an exception to the rule governing attorney~client privilege). Failure to abide by this order is subject to a charge of contempt.

~ ;’;f/1'1/<5‘ ‘,1 ^[5] /‘ ~ \ day of '-/M!” '5 SIGNED and ENTERED this“ , 20:1 ~ ’JE’F:;FE}iSON MOORE g,r ~ W Judge 186"‘ Judicial District Court exar County, Texas cc: Attorney for Applicant Kenneth Eric Baker 115 E. Travis, Suite 333 San Antonio, Texas 78205.

*62 Exhibit E *63 THE STATE OF TEXAS

¢»O'3€03€O7

COUNTY OF BEXAR BEFORE ME, the undersigned authority, on this day personally Paul J. Goeke, who, being duly sworn, deposed as follows: Undersigned counsel has been directed by the District Court to provide an affidavit in response to a Pro Se Writ of Habeas Corpus filed by Lynwyatt Allen. In response to this Honorable Court's order of 23rd day of Mag 2015 please ﬁnd the following: [ Objection: This Honorable Court’s order violates the attorney-client privilege. In anticipation of this objection, the Court observes in the order that this Writ of Habeas Corpus alleges a breach of an attomey’s duty to a client and an exception to the privilege is created by Texas Rules of Evidence 503(§) (3). With the objection anticipatorily overruled, please ﬁnd the following:

In the following affidavit, undersigned counsel does not use the more formal construct of describing the afﬁant as “undersigned counsel”, but adopts the less awkward colloquial use of the first person. 1(a)(1): The Applicant alleges that “Counsel pressured Applicant into taking a plea because he was not prepared to go to trial”. Response to 1(a)(1): Not True.

Applicant was in no way pressured into taking a plea. The original plea bargain offer to Applicant had been a ﬂat ﬁfteen (15) year

sentence on the intoxication manslaughter indictment, and a ten (10) year sentence on each of the intoxication assault indictments with an affirmative finding of the use of a

*64 deadly weapon, all to run concurrently. This offer did not change until immediately before trial. The prosecutor had changed from Assistant District Attorney (Mr.) David Henderson to Assistant District Attorney (Mr.) Eric Fuchs. It was Mr. Fuchs who relented on the day of trial by offering a 15 year "cap" without requiring the Court to make a ﬁnding of the use of a deadly weapon, thus allowing Applicant to apply for adjudicated (regular) community supervision. This offer made possible a sentence of less than ﬁfteen years without an affirmative ﬁnding leading to earlier parole eligibility. The likelihood of adjudicated community supervision being granted was described to Applicant as being extremely remote.

I was completely prepared ‘to go to jury trial. I had retained Dr. Michael Arambula, a highly qualiﬁed forensic psychiatrist, who

subsequently testified at Applicant's sentencing hearing in much the same manner as he

A

would have testified in a jury trial. In addition to being a forensic psychiatrist, Dr. Arambula has an advanced post doctorate in Pharmacy (referred to as a Pharm D.) This unique combination makes Dr. Ararnbula among the most highly qualiﬁed to testify with regard to psychopharmacology, the study of effects of alcohol and other chemicals on the

A

mind and body. The assertion that I was not prepared for trial is demonstrably ludicrous, as evidenced by the testimony of this expert witness and several character witnesses from out of town during the sentencing hearing that resulted from his voluntary plea. These are

_ the very witnesses who would have testified to a jury. Based upon the unraveling of the initial defense and the changing of the plea offer to a “cap” with the option of the court *65 not entering an affirmative 3(g) ﬁnding, Applicant made an intelligent and fully informed decision to waive a jury and enter a plea bargain agreement.

Each of the very witnesses that I would have used in his jury trial testified in his sentencing hearing. They would not have done so were I not prepared for trial. He simply wisely decided to limit his exposure, as the truth of his behavior became unavoidable. 1(a)(2): Applicant alleges that “Applicant was misled by Counsel as to his application for probation being granted as well as in the matter of no deadly weapon ﬁnding being made”. Response to 1(a)(2): Not True.

This is a complete and utter falsehood. The Applicant was always informed that the possibility of probation from the court was extremely remote. Applicant was advised that the main beneﬁt of this plea bargain was that the sentences were certain to run concurrently and that there was a possibility that the Hon. Judge Herr would be somewhat solomonic with regard to the “cap” of ﬁfteen (15) years and the full range of punishment, each offense having a minimum sentence of two (2) years. Unfortunately for Applicant, the prosecution successfully countered this possibility by literally "packing the courtroom" with ﬁiends and family of the decedent and complainants.

One complainant had been extremely disﬁgured in the collision, a fact which the prosecution underlined by displaying a “before” photo showing that he had previously been “movie star” handsome. His live testimony then made his unfortunate disﬁgurement obvious.

*66 This case was unique in my experience in that the head-on collision leading to the death and injuries was actually captured on the dashboard camera of a patrol car. The police officer was responding to reports of Applicant’s vehicle traveling on the wrong side of the highway for a long distance, almost striking other drivers who then phoned 911.

The ofﬁcer testiﬁed that he was rushing to the scene to intercept Applicant by "bumping" him off the road before such a tragedy as this could occur. This unique situation led to the actual capture of the violent head—on collision between the victims’ and Applicant’s trucks on that officer's "dash cam".

I relate this event in order to explain the environment in which Judge Herr was required to pronounce sentence. When the video of the collision was played in open court, a relative of one of the victims ran from the courtroom, loudly retching; a dramatic occurrence which dominated the subsequent news coverage. This, combined with Applicant's poor testimonial performance and other aspects of this case led to the growing inevitability of the maximum sentence being pronounced in open court in the presence of the many friends and family of the dead and disﬁgured victims. 1(a)(3): Applicant alleges that “had Counsel properly advised the Applicant that he might not receive deferred adjudication he would not have entered a no-contest plea”. Response to 1(a)(3): Not True.

Again, a complete and utter falsehood. Since my licensure in 1983, deferred adjudication has not been available even for simple DWI and with the subsequent creation of the Penal Code offenses of Intoxication Assault and Intoxication *67 Manslaughter in the 73"’ legislature (effective September 1, 1994), deferred adjudication has never been available for these offenses as well. These matters were explained to Applicant and his family at length and in detail in response to their initial inquiries regarding the potential for plea bargaining and sentencing from the beginning of my

representation.

Applicant was initially (and throughout my representation) completely and clearly informed of the sentencing realities pursuant to Texas Law and that he could not receive deferred adjudication for these offenses under any circumstance and that with the use of a deadly weapon being formally alleged, he could only receive probation (adjudicated community supervision) from a jury after a trial. The topic of deferred adjudication never arose in conjunction with the discussion of the plea bargain offer. 1(a)(4): Applicant alleges “Counsel speciﬁcally told Applicant that there would be no ﬁnding of deadly weapon”. Response to 1(a)(4): Not True. Applicant had always been told that the trial court could not grant probation in the presence of an affirmative ﬁnding of the use of a deadly weapon.

Again, a complete and utter falsehood. The Applicant was advised that there was a possibility that Judge Herr might not enter a deadly weapon ﬁnding in a judgment sentencing him to prison. He was advised that, under the right circumstances, Judge Herr might reward him for having waived a jury and entering a plea by "splitting the baby", with a sentence less than the maximum and/or by possibly not entering a deadly weapon ﬁnding in the judgment.

*68 It should be noted that up until the time of impending jury selection, the offer had been a ﬂat 15 years to do, (not a cap) with an affirmative ﬁnding of the use of a deadly weapon. In a jury trial, Applicant was faced with the possibility of being denied probation by the jury and then facing with the possibility of Judge Herr ordering any jury sentences to be run consecutively. It is because the plea changed to a "cap" of 15 years concurrent without the requirement that the court enter a deadly weapon ﬁnding and the resulting possibility of a sentence under the cap and/or without a deadly weapon ﬁnding, that Applicant elected to enter into a plea bargain agreement. Again, the possibility of community supervision from the court was always described to Applicant as being extremely remote. Pursuant to this Honorable Court's Order at 1(b) please find the following: After you have reviewed Applicant’s writ application, please address any other issues raised by Applicant not speciﬁcally listed above and of which you have knowledge or information: Response to 1(b): Not Applicable Pursuant to this Honorable Court's Order at 1(c) please find the following: This Honorable Court instructs that if there is any additional information not present before the court at this time that is relevant to the courts understanding of this matter, please include any such information to clarify this matter, Pursuant to this order, please find the following:

Placing this case in full context will help the court to understand the unique

A

dynamics involved leading up to Applicant’s plea. *69 I was a zealous and committed advocate for Applicant from the moment his father Bob Allen first appeared in my office until the time that I was unforrned that Applicant had filed a gm s_e__ writ of habeas corpus challenging my effectiveness.

Mr. Allen came to me concerned that his son (Applicant) would be irrevocably injured were he to be moved to general population in the Bexar County Jail. Applicant had received a cervical fracture in the collision which led to his arrest. This fracture placed him at risk for spinal cord injury in the violent atmosphere of Bexar County Jail general population.

Despite the fact that Mr. Allen could not pay me, I put aside other work and sought Applicant’s release from custody on personal recognizance. I was successful in this regard.

I told Mr. Allen at the time that Applicant’s only hope for probation was ﬁ'om a jury, given the death and severity of injuries he had caused. The plan from the outset was trial by jury.

Mr. Allen described his son as young and inexperienced, not given to drinking alcohol and the type of drinker who would not even ﬁnish a beer. Mr. Allen described how his son had become romantically involved with an older woman and that this involvement lead to an episode of drinking with her friends during which he had become

' intoxicated. When he was left behind by the group, he had drunkenly found his way to his truck, driven off and caused the fatal accident.

I determined to present the mitigating aspects of this scenario to a jury hoping for probation under the circumstances. In this regard, I hired Dr. Michael Arambula, a forensic psychiatrist and Pharm D, making him authoritative in psychopharmacology (the *70 effect of drugs and alcohol on the mind). I also planned to present individuals who knew Applicant as an inexperienced non-drinker-whose naiveté would be viewed as mitigating by the jury.

As the case progressed however, it became apparent that Mr. Allen’s version of the event was a complete ﬁction. A picture emerged that Applicant had in fact started drinking heavily in this new relationship and had probably embarrassed his girlfriend with his drunken behavior on the night in question. When she sought to have him stay behind to “sleep it off’, he experienced this as an humiliating abandonment by his “first love”, became suicidal and tried to “end it all” by intentionally driving down the wrong side of the highway without regard to the innocent lives he might effect thereby.

The initial medical records brought to me by Applicant’s father were consistent with the false story he gave me about Applicant’s naiveté with alcohol. As trial approached, I obtained more complete records in discovery that revealed Applicant’s growing history of alcohol abuse, records in which he admitted periodic binge drinking leading up to the offense in question and a developing alcoholism consistent with his family history and one which he had been desperate to conceal from them.

Applica.nt’s mother is Native American. Her brother's alcohol addiction led to multiple DWI arrests, imprisonment and eventual death from acute alcohol poisoning. I expressed my concerns that (1) this had been withheld from me (2) with the well-known genetic basis for alcoholism and (3) how incompatible this was with his defense of na‘1’vete'. As trial approached and l inquired about the witnesses with whom he was

*71 drinking on the night of the accident, it became clear that their presence would further undermine his claims of inexperience and seal his fate.

I was forced to adapt my trial strategy to conceal these truths from the prosecution. As it was, Applicant and I were careful to structure his testimony to avoid any mention of his former girlfriend's name, a commercial photographer with a webpage who could easily be found on the Internet by a quick thinking prosecutor. It was evident that had the prosecution made contact, it would have led to disastrous results.

The Sentencing Hearing While I was prepared to present mitigation to Judge Hen‘ in the sentencing hearing, I had not anticipated how effectively the prosecution would counter this by literally packing the courtroom with the friends and family of the victims. This seemed to place sociopolitical pressure on the sentencing judgesl informed Applicant that I might be able counter this during the 30-day period of continuing jurisdiction.

It is true that I did not expect or predict that Judge Herr would give Applicant no leniency at all under the terms of the plea bargain agreement, sentencing him to the maximum allowed under the "cap". This likelihood only developed during the sentencing hearing. I believe that the Honorable Judge Herr may have experienced some political

' "pressure" from the packed courtroom and the above-described events. Subsequent developments lend credence to this theory: Judge Herr later did manifest signiﬁcant leniency (when not in open court) by actually granting Applicant signiﬁcant credit for time served while on electronic monitoring, as though Applicant had served that time in the county jail when in fact he had not, credit to which he was simply not entitled under the law.

*72 Such a grant of leniency was speciﬁcally addressed and found to be unauthorized in Tagorda vs. State 977 SW2d 632 (Ct. App.— Ft. Worth) (1998). This leniency was thus quietly expressed in a subsequent amended judgment modifying (in private) the original judgment entered by Judge Herr and thus was not announced in open court and not readily apparent to the aforementioned crowd of family and friends. I had hoped that Judge Herr would also elect to refrain from making an affirmative 3(g) ﬁnding in the judgment. The latter was not to be, however.

I believe the resulting amended judgment legitimizes my belief that the Hon. Judge Herr was uncharacteristically harsh in her open court actions, something that I could not have reasonably predicted prior to the actual hearing. I advised Applicant of my growing concerns at counsel table during the hearing. I also advised him of the trial court’s continuing jurisdiction and control over the contents of the actual judgment as opposed to her pronouncements in open court. Her maximum sentence of 15,10, and l0 years respectively with an affirmative ﬁnding of the use of a deadly weapon were all pronounced in open court. Her leniency was expressed privately in an amended judgment. I had approached Judge Herr in open court several days after the sentencing hearing and asked her to consider these alternatives. The prosecutor in attendance at the time did not comment on the request.

In this afﬁdavit, I have expressly described each of Applicant's assertions as complete and utter falsehoods for a reason: it is because they are complete and utter falsehoods and because he knows that they are.

I was a zealous advocate for Applicant before, during and after his trial zmd I am therefore somewhat mystiﬁed by the completely baseless claim of Ineffective Assistance 10 *73 of Counsel, particularly because Applicant was advised of a legitimate avenue for seeking a new trial.

After his sentencing, Applicant and his family were repeatedly informed of the thirty (30) day motion for new trial jurisdiction and were urged by me to contact experienced Board Certiﬁed Criminal Law Specialists in order to attempt to set aside the resulting sentence. I received a number of calls from qualiﬁed lawyers and spoke with several experienced criminal defense lawyers about areas of possible post-conviction relief and my willingness to assist in this regard.

For example, this case was extensively litigated in a pretrial motion to suppress regarding the validity of the warrantless blood draw. That motion was overruled by the court. It is highly likely that the trial court was in error in that regard. The prosecutor at the time (Mr. Fuchs) conﬁded in me his concern that my suppression argument was valid and his fear that the judgment could be overturned on appeal whenl structured the plea in such a way as to preserve Applicant's right to appeal rulings on pretrial motions. In response to my having structured the plea to appeal the motion to suppress, the prosecutor supplemented the stipulations in a way he believed would defeat such an appeal.‘ That avenue was not pursued then, due to the pendency of the above described credit for time served. However, it should have been raised in this writ of Habeas Corpus by seeking an out of time appeal in that regard, as that issue would in my opinion have a high likelihood of success, certainly higher than that of a patently absurd claim of ^[1]

in addition to the forensic blood draw, the state had hospital records with plasma alcohol concentrations based on clinical laboratory analysis. The prosecutor supplemented the stipulations with these hospital records, erroneously believing such supplementation would defeat the appeal of the pretrial motion. It would not. The case law establishes that, if Applicant's decision to enter a plea bargain agreement was in any way inﬂuenced by the court's erroneous ruling on the motion to suppress, relief should be forthcoming. My original trial plan was to challenge the hospital blood draw pursuant to the holding of Bullcoming v.

' New Mexico, 131 S.Ct. 2705 (201 1) and the absence of the hospital technician. ll *74 ineffective assistance of counsel. The Applicant's post-conviction pursuits would have been better placed in that regard and why that has been abandoned is beyond me except fO1‘AppliCant'S acting 2r_o _s_§ and without competent legal advice in this regard.

I had previously advised Applicant and his family of the post-conviction strategy of seeking an out of time appeal challenging the denial of the motion to suppress. I had explained that Applicant could file a motion for new trial and/or give notice of appeal regarding the motion to suppress ruling. I also explained that doing so might draw attention to the unauthorized credit for time served and cause an interested prosecutor to challenge this credit.2

There also remained the possibility of the trial court reconsidering the deadly weapon ﬁnding by removing or omitting it in the judgment. As it developed, the trial court amended the judgment by awarding credit for time served. Judge Herr actually did this after her jurisdiction had expired in a manner which could now (and then) be challenged as invalid. Unfortunately, the affirmative ﬁnding of the use of a deadly weapon remained. The better strategy for Applicant would have been to employ experienced counsel and seek an out of time appeal of the motion to suppress through a post conviction writ of habeas corpus, a strategy which is probably now foreclosed by the “one writ rule”. By acting gm _s§ and not following my advice, he has (1) lost a legitimate challenge to his conviction and (2) threatened the continuing viability of his unauthorized credit for time served. If the prosecution now challenges that credit for time sewed, he will probably lose it. Additionally, he will not be able to challenge the trial court’s ^[2]

I had discussed this dilemma with Applicant during the period of continuingjurisdiction by the trial court. Because the attorney client relationship became contentious, I reduced part of this advice to writing and delivered it to Applicant in jail. See Attached Exhibit A.

12 *75 erroneous denial of his motion to suppress the warrantless blood draw, thus ruling out any further challenge to his sentence.

Undersigned counsel will respond further as directed by the court. I declare the foregoing to be true and correct under penalty of perjury.” "Further afﬁant sayeth not."

R)

Paul J’. Goeke 5)» SWORN AND SUBSCRIBED to before me this 1 day of 2015, to certify which witness my hand and seal of office. Notary Public, State of Texasﬂ County of Bexar

13 *76 Exhibit F

NO.

*77 2013CR5726-W1 20]3CR572’7~W.l

2013CR5728-‘W1

EX PART IN THE DISTRICT COURT

§

186” JUDICIAL DISTRICT § ‘ L-YNWYATT ALLEN BEXAR COUNTY, TEXAS

§

ORDER DESIGNATING ISSUES The Court having concluded that controverted, previously unresolved facts which are material to the legality of Applicant's conﬁnement exist and need to be resolved, there is a necessity for the suspension of the time limitations enunciated in Article ^[1] l.O7 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(d) (West 2012).

Applicant has alleged the following issue which the court ﬁnds requires resolution: 21. lneffeetive Assistance of Counsel Findings will be forwarded to the Court of Criminal Appeals for its disposition of the matter. iii- /£17. SIGNED and ENTERED on ON MOORE Judfgef’.l'86"‘ Judicial District Court County, Texas *78 Exhibit G *79 PAUL J. GOEKE ATTORNEY AT LAW MILAM BUILDING, SUITE H45 I I5 E. TRAVIS STREET SAN Ax-roxro, Texas 73205-1755 (2 IO) 222-2959 acme cermruzo "W ‘2 '°’ 333'°°53 MEMBER COLLEGE OF THE CRIMINAL LAW SPECIALIST TEXAS BDARD or LEGAL s9:ciAI.IzA\'IoN RES: (2 IO) 495-SI44 STATE BAR OF TEXAS May 20, 2015 VIA HAND DELIVERY

Kenneth Baker

115 E. Travis, Ste. 333 San Antonio, Texas 78205 RE: State of Texas v. LynwyattAIlen,' Cause Nos. 201 3~CR—5 726, 20] 3-CR—5 72 7,

201 3-CR-5 728 Dear Sir: Enclosed please find one (1) copy of the Affidavit in Response to the pr_o se writ of Habeas Corpus to be ﬁled in the above referenced matter. Please excuse the delay in sending your copy.

Should you have any questions please do not hesitate to contact this office. Sincerely, Paul J. Goeke Attorney at Law

Eric.

OF

COUNSEL 1\<[m:E MCCOLLUM BENNIE E. RAY J. GARY TRICHTER 7Io w, mm smear, sun‘: c an is N. CENTRAL EXPRESSWAY. SUITE 304 2000 smm-4 smear HOUSTON, TEXAS 77002 DALLAS, TEXAS 75206 Ausrm, TEXAS 78701 I-BODDWI-IOIO - (EM) 69!-3975

I-500-DWI-IDIO ~ (5:2) 479-7775 I-eooowl-iolo ﬁARV@l’EXASD\NILAW.COM <www.1':xAsuwn.Aw.I:aM *80 Exhibit H

.lllHillllllllllllllllllllA

*81 ‘NO. 2013C R5726-W1 20l3CR5727-W1 20l3CR5728-W1

EX PARTE IN THE DISTRICT COURT

§

1ss“‘ JUDICIAL DISTRICT §

LYNWYATT

ALLEN BEXAR COUNTY, TEXAS §

ORDER

Applicant, Lynwyatt Allen, has ﬁled a pro se application for a post-conviction writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure, collaterally attacking his conviction in cause number 20l3CR5726; 20l3CR5727; 20l3CR5728. TEX. CODE CRIM. PROC. art. ^[1] 1.07 (West 2012).

HISTORY

OF THE CASE On or about June 6, 2013, Applicant plead guilty to the offense of intoxication assault. Applicant was sentenced to ten (10) years conﬁnement in the Texas Department of Corrections - lnstitutional Division. Applicant did not ﬁle a direct appeal. This application for writ of habeas corpus was ﬁled on March l7, 2015. The District Attorney received a copy of this application on March 18, 2015.

ALLEGATIONS

OF APPLICANT 1. In App|icant’s sole ground for relief, Applicant alleges ineffective assistance of counsel. 0 Speciﬁcally, Applicant alleges that Trial Counsel and ~ represented that no finding of a deadly weapon would be made and that Applicant would receive deferred adjudication because he was “eligible." Also, Trial Counsel misled Applicant to believe that his application for probation was being granted and had Trial Counsel informed Applicant that he would not receive probation and that a

t-I fitiiili

*82 deadly weapon ﬁnding would be made, he would not have entered a no-contest plea. FINDINGS OF FACT l. On or about June 6, 2013, Applicant plead guilty to the offense of intoxication assault. Applicant was sentenced to ten (10) years conﬁnement in the Texas Department of Corrections — Institutional Division.

2. Applicant did not ﬁle a direct appeal. 3. The trial court requested and received an affidavit from Applicant’s Trial Counsel, Paul J.

Goeke (Attachment: Affidavit). Although the court ﬁnds the affidavit credible, the court takes issue with portions of the affidavit in which the affiant speculates as to the court’s

ems. ~$____,-_._..___...., ,. ... \_ ____‘m , decisions for ce_rt_ain rulings. 3. “The original plea bargain offer to Applicant had been a ﬂat ﬁfteen (15) year sentence on the intoxication manslaughter indictment, and a ten (l0) year sentence on each of the intoxication assault indictments with an affirmative ﬁnding of the use of a deadly weapon, all to run concurrently. This offer did not change until immediately before trial. The prosecutor had changed from Assistant District Attorney (Mr.) David Henderson to Assistant District Attorney (Mr. ) Eric Fuchs. It was Mr. Fuchs who relented on the day of trial by offering a 15 year “cap” without requiring the Court to make ﬁnding of the use of a deadly weapon, thus allowing Applicant to apply for adjudicated (regular) community supervision. This offer made possible a sentence of less than fifteen years without an afﬁnnative ﬁnding leading to earlier parole eligibility. The likelihood of adjudicated community supervision being granted was described to Applicant as being extremely remote. I had retained Dr. Michael Arambula, a highly qualiﬁed forensic psychiatrist, who subsequently testiﬁed at App1icant’s sentencing hearing in much the same manner as he would have testiﬁed in ajury trial. In addition to being a forensic psychiatrist, Dr. Arambula has an advanced post doctorate in Pharmacy (referred to as a Pharm D.) This unique combination makes Dr. Arambula among the most highly qualified to testify with regard to psychopharmacology, the study of effects of alcohol and other chemicals on the

\f131|3P1S7S mind and body. The assertion that I was not prepared for trial is demonstrably ludicrous, as evidenced by the testimony of this expert witness and several character witnesses from out of town during the sentencing hearing that resulted from his voluntary plea. These are the very witnesses who would have testiﬁed to ajury. Based upon the unraveling of the initial defense and the changing of the plea offer to a “cap” with the option of the court not entering an affirmative 3(g) ^[06112015] *83 ﬁnding, Applicant made an intelligent and fully informed decision to waive ajury and enter a plea bargain agreement. Each of the very witnesses that would have used in his jury trial testiﬁed in his sentencing hearing. They would not have done so were I not prepared for trial. He simply wisely decided to limit his exposure, as

” the truth of his behavior became unavoidable. . “This is a complete and utter falsehood. The Applicant was always informed that the ossibili of pro Eatron from the court was extremely remote. Applicant was run concurrently and that there was a possibility that the Hon. Judge Herr would be somewhat solomonic with regard to the “cap” of ﬁfteen (15) years and the full range of punishment, each offense having a minimum sentence of two (2) years. Unfortunately for Applicant, the prosecution successfully counters this possibility by literally “packing the courtroom” with friends and family of the decedent and complainants. One complainant had been extremely disﬁgured in the collision, a fact which the prosecution underlined by displaying a “before” photo showing that he had previously been “movie star” handsome. His live testimony then made his unfortunate disﬁgurement obvious. This case was unique in my experience in that the head-on collision leading to the death and injuries was actually captured on the dashboard camera of a patrol car. The police officer was responding to reports of Applicant’s vehicle traveling on the wrong side of the highway for a long distance, almost striking other drivers who them phoned 911. The oﬁicer testiﬁed that he was rushing to the scene to intercept Applicant by “bumping" him off the road before such a tragedy as this could occur. This unique situation led to the actual capture of the violent head-on collision between the victims’ and Applicant's trucks on that ofﬁcer’s “dash cam". I relate this event in order to explain the environment in which Judge Herr was required to pronounce sentence. When the video of the collision was played in open court , a relative of one of the victims ran from the courtroom, loudly retching; a dramatic occurrence which dominated the subsequent news coverage. This, combined with Applicant's poor testimonial performance and other aspects of this case led to the growing inevitability of the maximum sentence being pronounced in open court in the presence of the many friends and family of the dead and disﬁgured victims." a Judication has not ‘been available even or stm e an W1 su se uent Ma"ﬁslaTIghter'iFthé 73'“ legislature (effective September 1, 1994), deferred adjudication has never been available for these offenses as well. TheTﬁ’atters were explained to Applicant and his family at length and in detail in response to their initial inquires regarding the potential for plea bargaining and sentencing

V1310-PXS7

from the beginning of my representation. Applicant was initially (and throughout my representation) completelﬂnd clearly infonned of the sentencing realities pursuant to Texas Law and that he could not receive deferred adjudication for

circumstance and that with the use of a deadly weapon being fonnally alleged, he could only receive probation (adjudication community supervision) from a jury after atrial. The topic of deferred adjudication never

@6i12@1S

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*84 arose in conjunction with the discussion of the plea bargain offer.” . “Not true. Applicant had always been told that the trial court could not grant Again, a complete and utter fal§hood. The Ap licant was adviseTcF weapon that right circumstances, Judge I-lerr might reward him for having waived ajury and entering a plea by “splitting the baby” with a sentence less than the maximum

!_.rLSIcl0I£II\ and/or by possibly not entering a deadly weapon ﬁnding judgment. It should be noted that up until the time of impending jury selection, the offer had been a ﬁat l5 years to do (not a cap) with an afﬁnnative ﬁnding of use of a deadly weapon. In a jury trial, Applicant was faced with the possibility of being denied probation by thejury and then facing with the possibility of Judge Herr ordering any jury sentences to be run consecutively. It is because the plea changed to a “cap” of 15 years concurrent without the requirement that the court enter a deadly weapon ﬁnding and the resulting possibility of a sentence under the cap and/or without a deadly weapon ﬁnding, that Applicant elected to enter into a plea bargain agreement. Again, the possibility of community supervision from the court was always described to Applicant as being extremely remote.”

. “Placing this case in full context will help the court understand the unique dynamics involved leading up to Applicant’s plea. I was a zealous and committed advocate for Applicant from the moment his father Bob Allen ﬁrst appeared in my office until the time that I was unforrned (sic) that Applicant had ﬁled a pro se writ of habeas corpus challenging my effectiveness. Mr. Allen came to me concerned that his son (Applicant) would be irrevocably injured were he to be moved to general population in the Bexar County Jail. Applicant had received a cervical fracture in the collision which led to his arrest. This fracture placed him at risk for spinal cord injury in the violent atmosphere of Bexar County Jail general population. Despite the fact that Mr. Allen could not pay me, I put aside other work and sought Applicant’s release from custody on person recognizance. I was successful in this regard. I told Mr. Allen at that time that Applicant’s only hope for probation was from a jury, given the death and severity of injures he had caused. The plan from the outset was trial byjury. Mr. Allen described his son as young and inexperienced, not given to drinking alcohol and the type of drinker who would not even ﬁnish a beer. Mr. Allen described how his son had become romantically involved with an older woman and that this involvement lead to an episode of drinking with her friends during which he had become intoxicated. When he was leﬁ behind by the group, he had drunkenly found his way to his truck, driven off and caused the fatal accident. I determined to present the mitigating aspects of this scenario to a jury hoping for probation under the circumstances. In this regard, I hired Dr. Michael Arambula, a forensic psychiatrist and Pharm D. making him authoritative in psychopharmacology (the effect of drugs and alcohol on the mind). I also planned to present individuals who knew Applicant as an inexperienced non-drinker whose naivete would be viewed as mitigating by thejury. As the case progressed however, it became apparent that ^[51031190] *85 Mr. Allen’s version of the event was complete fiction. A picture emerged that Applicant had in fact started drinking heavily in this new relationship and had probably embarrassed his girlfriend with his drunken behavior on the night in question. When she sought to have him stay behind to “sleep it off’, he experienced this as an humiliating abandonment by his “first love”, became suicidal and tried to “end it all” by intentionally driving down the wrong side of the highway without regard to the innocent lives he might effect thereby. The initial medical records brought to me by Applicant’s father were consistent with ‘3£SlclFJ'E€I!\ the false story he gave me about Applicant’s naivete with alcohol. As trial approached, I obtained more complete records in discovery that revealed Applicant’s growing history of alcohol abuse, records in which he admitted periodic binge drinking leading up to the offense in question and a developing alcoholism consistent with his family history and one which he had been desperate to conceal from them. Applicant’s mother is Native American. Her brother’s alcohol addiction led to multiple DWI arrests, imprisonment and eventual death from acute alcohol poisoning. I expressed my concerns that (1) this had been withheld from me (2) with the well-known genetic basis for alcoholism and (3) how incompatible this was with his defense of naivete. As trial approached and l inquired about witnesses with whom he was drinking on the night of the accident, it became clear that their presence would further undennine his claims of inexperience and seal his fate. I was forced to adapt my trial strategy to conceal these truths from t.he prosecution. As it was, Applicant and I were careful to structure his testimony to avoid any mention of his former girlfriend’s _name, a commercial photographer with a webpage who could easily be found on the lntemet by a quick thinking prosecutor. lt was evident that had the prosecution made contact, it would have led to disastrous results.” “While I was prepared to present mitigation to Judge Herr in the sentencing hearing, I had not anticipated how effectively the prosecution would counter this by literally packing the courtroom with the friends and family of the victims. This seemed to place sociopolitical pressure on the sentencing judge. I infonned Applicant that I might be able to counter this during the 30-day period of continuingjurisdiction. It is true that I did not expect or predict that Judge Herr would give Applicant no leniency at all under the tenns of the plea bargain agreement, sentencing him to the maximum allowed under the “cap”. The likelihood only developed during the sentencing hearing.

. In this afﬂdavit, l have ex ressl described each if Applicantfs aslsertions as complete and utter falsehoods for a reason: it is becﬁisﬁhey are co—rn;)Ttea‘nd utter falsehoods and because he knows that they are. for applicant before, during and after his trial and ^[1] am therefore somewhat mystiﬁed by the completely baseless claim of Ineffective Assistance of Counsel, particularly because Applicant was advised of a legitimate avenue for seeking a new trial. After his sentencing, Applicant and his family were repeatedly informed of the thirty (30) day motion for new trial jurisdiction and were urged by me to contact experienced Board Certiﬁed Criminal Law Specialist in order to attempt to set aside the resulting sentence. I received a number of calls from qualiﬁed lawyers

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*86 and spoke with several experienced criminal defense lawyers about areas of possible post-conviction relief and my willingness to assist in this regard. For example, this case was extensively litigated in a pretrial motion to suppress regarding the validity of the warrantless blood draw. That motion was overruled by the court. It is highly likely that the trial court was in error in that regard. The prosecutor at the time (Mr. Fuchs) conﬁded in me his concerns that my suppression argument was valid and his fear that the judgment could be overturned on appeal when l structured the plea in such a way as to preserve

E>£S'ld0'[£11\ Applicant’s right to appeal rulings on pretrial motions. In response to have structured the plea to appeal the motion to suppress, the prosecutor supplemented the stipulations in a way he believed would defeat such an appeal. That avenue was not pursued then, due to the pendency of the above described credit for time sewed. However, it should have been raised in this writ of Habeas Corpus by seeking an out of time appeal in that regard, as that issue would in my opinion have a high likelihood of success, certainly higher than that of patently absurd claim of ineffective assistance of counsel. The Applicant’s post-conviction pursuits would have been better placed in that regard and why that has been abandoned is beyond me except for Applicant’s acting pro se and without competent legal advice in this regard. I had previously advised Applicant and his family of the post-conviction strategy of seeking an out of time appeal challenging the denial of the motion to suppress. I had explained that Applicant could ﬁle a motion for a new trial and/or give notice of appeal regarding the motion to suppress the ruling. i also explained that doing so might draw attention to the unauthorized credit for time served and caused an interested prosecutor to challenge this credit. There also remained the possibility of the trial court reconsidering the deadly weapon finding by removing or omitting it in the judgment. As it developed, the trial court amended the judgment by awarding credit for time served. Judge Herr actually did this after herjurisdiction had expired in a manner which could now (and then) be challenged as invalid. Unfortunately, the afﬁmtative ﬁnding of the use of a deadly weapon remained. The better strategy for Applicant would have been to employ experienced counsel and seek an out of time appeal of motion to suppress through a post-conviction writ of habeas corpus, a strategy which is probably now foreclosed by the “one writ rule”. By acting pro se and not following my advice, he has (I) lost legitimate challenge to his conviction and (2) threatened the continuing viability for his unauthorized credit for time served. If the prosecution now challenges that credit for time served, he will probably lose it. Additionally, he will not be able to challenge the trial court’s erroneous denial of his motion to suppress the warrantless blood draw, thus ruling out any further challenge to his sentence.”

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*87 CONCLUSIONE OF LAW Under the two-prong standard for reviewing ineffective assistance of counsel claims, 1. Applicant must show that (1) counsel’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s deﬁcient

09S'[d-@T£I;r’\ performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); See also McFarland v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992). Trial counsel sufﬁciently rebuts all allegations made against him and provided a detailed account of his work on the case, the court concludes that his representation of Applicant did not below an objective standard of reasonableness. Therefore, this court

,1’ r—— recornrnends that Applicant’s second, third and fourth grounds for relief pertaining to ineffective assistance of counsel be DENIED. See Strickland v. Washinglon, 466 U.S. 668 (1984). Based on the foregoing ﬁndings of fact and conclusions of law, it is hereby recommended that this application be DENIED.

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*88 0 R D E R S

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The District Clerk of Bexar County, Texas, is hereby ordered to prepare a copy of this 15 document, together with any attachments and forward the same to the following persons by mail or the most practical means:

T9SId‘E) a. The Court of Criminal Appeals Austin, Texas 78711 b. Nicholas “Nico” LaHood Criminal District Attorney Cadena - Reeves Justice Center Bexar County, Texas 78205

c. Lynwyatt Allen TDCJ ID: 01935579 Dominguez Unit 6535 Cagnon Road San Antonio, Texas 78252

SIGNED, ORDERED and DECREED on / U //45% Z 0/5 F i1soN MOORE e l86TH Judicial District Court exar County, Texas *89 Exhibit I

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