Wynn, Charone ( 2014 )

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CAUSE NO.WR-79,795-02
RECE|VEI IN
EX PARTE § IN THE TEXE@URT OF CR|M|NALAPPEALS
, § coURT oF 'EC 302@1&)
cHARoNE wYNN § cRIMINAL APPEALS
Abel Acosta, C|erk
RESPONSE TO COURT'S FINDINGS OF FACT
: : ‘" "" AND CONCLUSIONS OF LAW
The Court has adopted the State's Proposed Eindings of Fact
and Conclusions of Law and Order in this case. The Court has
made findings of fact without a hearing, affidavits or any
other mechanism for_Wynn to develop evidence in support of his
claims.
Even worse, the Court has found facts based on none existent
memory of the events,(he was not the trial judge) putting mat-
erial issues of fact in dispute.
Wynn at the least is entitled to have trial counsel answer
these allegations in a sworn affidavit. Due Process affords
a habeas petitioner the right to a fair opportunity in state
court to discover and present potentially exculpatory evidence
that was not contained in the record or on direct appeal. see
District Attorney's Office v. Osbourne,557 U.S. 52(2009)
The First Court of Appeals and the trial Court's findings
on why Wynn was handcuffed~atwtrialWare¢inlerror'and are un-
supported by sufficient evidence. see Wiggins V, Smith, 539
U.S. 510(2003)
The trial judge in answer to a question by a neniremember
gave his reasoning for shackling Wynn. "Well, he is in custody,
People who are in custody are kept in jail."(R.R.3 at 23) The
Court went on to state, "When he is not in my courtroom he's
locked up in a cell. When he is in my courtroom, he's going to
be handcuffed; That's my decision."(R.R.3 at 24) The trial
court's reasoning placed the the blame squarely on Wynn. By‘
this reasoning if Wynn could have afforded to make bail he
would not have been handcuffed. The venireperson's response
of "I understand why he wanted the jumpsuit.", is even more
telling of the effect this had on the jury.
The reasoning that the court gave for the handcuffing after
these events had taken place is purely deceptive measures by
the court, Wynn did in fact stand mute, which was a nonviolent
protest of his treatment. The court sought to cloak its mis-
conduct from any further judicial scrutiny. The facts are that
the court was going to handcuff Wynn no matter what. That is
in fact what the court told the jury, before he made any just-
ifications on record for his handcuffing of Wynn.
When trial counsel objected to the shackling of Wynn he clearly
stated that he would not be able to communicate with Wynn.
(R.R.3 at 125-26) There is no way Wynn would know exactly what
it is that his attorney would not have been able to communi-
cate to him. Mr Duarte could and would have explained this to
to the court, if he had been ordered to submit a sworn affidavit
answering the allegations of Wynn's habeas application. The
trial court found that applicant has not proven that he could
not communicate with trial counsel.(Findings of Fact #lO)
In fact trial counsel was the one who stated he would not be
able to communicate with Wynn.
-AEDPA's limits on federal fact development, combined with
these practically non-existent fact development procedures on
state habeas amounts to an unconstitutional "suspension of
the writ." see Boumedine v. Bush,553 U.S. 723(2008)[A consti-
tutionally adequate habeas corpus proceeding must at least
include a meaningful opportunity to satisfy the requirements
Of AEDPA~]
CONCLUSlON
Applicant prays that this honorable court will abate this
proceeding and order the trial court to further develop the
facts of this cause for the interest of justice.
Respectfully submitted,
%Mowl O\)Mm//L
CHARONE WYNN, PRO-SE /j
TDCJ-ID# 1318188
Telford Unit
3899 State Hwy 98
New Boston, Tx 75570
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the fore-
going was mailed, postage prepaid, this £!£Y! day of December,
2014 to Carolyn Allen, Harris County District Attorney's Office,
1201 Franklin, suite 6_00l Houston, texas 77002.
wynn rvj\)//][Wl/l
AFFIANT