West, Damon ( 2015 )

WR-78,439-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
May 15, 2015 Transmitted 5/15/2015 1:52:06 PM
No. WR-78,439-02 Accepted 5/15/2015 2:01:25 PM
ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
_______________________________________
EX PARTE
DAMON WEST,
Applicant
________________________________________________________
On Application for a Writ of Habeas Corpus
In Cause Number W09-00248-Y(B)
In the District Court of Dallas County, Texas
Hon. Jeannine Howard, Judge Presiding
_________________________________________________________
APPLICANT’S BRIEF
___________________________________________
CHIP B. LEWIS
SBN. 00791107
ALICIA DEVOY ONEILL
SBN. 24040801
1207 South Shepherd Drive
Houston, Texas 77018
(713) 523-7878
(713) 523-7887 (FAX)
ATTORNEYS FOR APPLICANT
ORAL ARGUMENT REQUESTED
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 52.3(a), a complete list of the names of all
interested parties is provided below.
Applicant: Damon West
TDCJ # 01585689
Mark W. Stiles Unit
3060 FM 3514
Beaumont, Texas
Prosecutors at Trial: Jennifer Morse
Felicia Oliphant
Assistant District Attorneys
133 North Riverfront Boulevard
Dallas County, Texas
Prosecutor for Writ Proceedings: Jaclyn O’Connor Lambert
(In Trial Court and in this Court) Assistant District Attorney
133 North Riverfront Boulevard
Dallas County, Texas
Defense Counsel at Trial: Ed Sigel
Attorney at Law
15950 Dallas Pkwy Ste 400
Dallas, TX 75248
Defense Counsel for Writ Proceedings: Chip B. Lewis
(In Trial Court and in this Court) Alicia Devoy O’Neill
Attorney at Law
1207 S. Shepherd Dr.
Houston, Texas 77019
Presiding Judge: Honorable Jeannine Howard
Criminal District Court No. 6
Frank Crowley Courts Building
133 N Riverfront Blvd # 4
Dallas, Texas 75207
i
TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
TRIAL COURT’S FINDINGS .................................................................................. 4
STATEMENT OF FACTS ........................................................................................ 6
SUMMARY OF THE ARGUMENT......................................................................10
SOLE ISSUE:
DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE?...................10
ARGUMENT ........................................................................................................... 11
PRAYER .................................................................................................................. 62
CERTIFICATE OF SERVICE ................................................................................ 63
CERTIFICATE OF COMPLIANCE ....................................................................... 64
APPENDIX .............................................................................................................. 65
Order Appointing April Smith .................................................................................. A
Motion to Recuse, Order of Recusal, and Order of Assignment .............................. B
Trial Court’s Proposed Findings of Fact and Conculsion of Law ............................ C
ii
INDEX OF AUTHORITIES
Cases
Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981) .................................... 19
Catalan v. Cockrell, 315 F.3d 491 (5th Cir.2002) .................................................... 20
Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997) ............................................... 19
Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008) .................................................. 12
Ex parte Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974) ................................. 19
Ex parte Cash, 178 S.W. 3d 816,818...........................................................................
............................................... 20, 23, 24, 29, 32, 34, 37, 39, 44,46, 48,50, 53, 57, 60
Ex parte Cavett, 521 S.W.2d 619 (Tex. Crim. App. 1975) ..................................... 19
Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980) ...................................
.............................................................................................18, 19, 23, 32, 36, 42, 50
Ex parte Ewing, 570 S.W.2d 941, 945 (Tex.Crim. App. 1978) .................................
.......................................................................................20, 23, 32, 37, 42, 46, 50, 57
Ex parte Harris, 596 S.W.2d 893 (Tex. Crim. App. 1980) .................................... 19
Ex parte Howard, 591 S.W.2d 906 (Tex. Crim. App. 1980)................................... 19
Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983) ....................................... 19
Ex parte Marez, 505 S.W.2d 930 (Tex. Crim. App. 1974) ..................................... 19
Ex parte Raborn,658 S.W.2d 602 (Tex. Crim. App. 1983) .........................................
.............................................................................................18, 19, 23, 32, 36, 42, 50
Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App.200) ...................................... 6
Ex Parte Walker, 777 S.W.2d 427 (Tex. Crim. App. 1989) ............................41, 42
iii
Ex parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) .....................................
...................................................................................................18, 23, 32, 36, 42, 49
Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App. 1982) .......................................
.............................................................................................18, 19, 23, 32, 36, 24, 50
Glover v. United States, 531 U.S. 198, 203, 121 S. Ct. 696, 700, 148 L. Ed. 2d 604
(2001) ...........................................................................................................13, 60, 62
Haynes v. State, 790 S.W.2d 824 (Tex. App.—Austin 1990, no pet.) .................... 20
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) ...............................
.................................20, 23, 24, 28, 30, 32, 34, 37, 39, 44, 46, 48, 50, 53, 57, 60, 61
Hutchinson v. State, 663. S.W. 2d 610 (Tex. App.—Houston [1st Dist.] 1983, pet.
ref’d) ........................................................................................... .......................19, 41
Jackson v. State, 857 S.W.2d 678 (Tex. App.—Houston [14th Dist.] 1993, pet.
ref’d) ......................................................................................................................... 20
Milburn v. State, 15 S.W.3d 267 (Tex. App. –Houston [14th Dist.] 2000, pet.
ref’d). ........................................................................................................................57
Mitchell v. State, 762 S.W.2d 916 (Tex. App.—San Antonio 1988, pet. ref’d) .... 20
Montez v. State, 824 S.W.2d 308 (Tex. App. —San Antonio 1992, no pet.).........42
Murphy v. State,663 S.W.2d 604(Tex.App.—Houston [1st Dist.] 1983, no pet.) ... 19
Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) ................................
.............................................20, 24, 28, 30, 33, 34, 37, 39, 44, 46, 48, 50, 53, 58, 61
Picken v. Lockhart, 714 F.2d 1455, 1467 (8th Cir. 1983) ....................................... 57
Sanders v. State, 715 S.W.2d 771 (Tex. App.—Tyler 1986, no pet.) ..................... 19
Strickland v. State, 747 S.W.2d 59 (Tex. App.—Texarkana 1988, no pet.) .......... 19
iv
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984) ............................................................................................................... .....
.........11, 12, 13, 20, 23, 24, 28, 30, 32, 34, 37, 39, 44, 46, 48, 50, 53, 57, 60, 61, 62
Strickland v. Washington, 466 U.S. 694, 104 S. Ct. 2068 ..................................11, 12
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) ... 23
United States v. Rusmisel, 716 F2d 301 (5th Cir.1983)......................................12, 28
West v. State, No. 05-09-00577-CR WL 783616 (Tex.App.-Dallas, March 8, 2011,
pet.ref’d) ..................................................................................................................... 2
Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) .....11, 57
American Bar Association Materials
ABA Standards for Criminal Justice: The Defense Function,Standard 4-4.1 (2d ed.
1986).......................................................................................................................11
Constitutional Provisions, Statutes
Tex. Crim. Pro. §38.21, 38.22, & 38.23 ...........................................................31, 32
Tex. R. Evid. §402, 403, 404, 602, 701 .............................................................35, 36
v
ISSUES PRESENTED
SOLE ISSUE
DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE?
STATEMENT OF THE CASE
Applicant is currently in custody and being restrained of his liberty in the
Texas Department of Criminal Justice – Institutional Division pursuant to
conviction and judgment of the Criminal District Court #7 of Dallas County, Texas
in cause number F09-00248.
Applicant entered a plea of not guilty to the first-degree felony charge of
Engaging in Organized Criminal Activity (EOCA), in which the underlying felony
was burglary of a habitation, in the Criminal District Court #7 of Dallas County,
Texas on May 11, 2009. See Reporter’s Record of Proceedings Applicant’s Jury
Trial (Applicant’s trial R.R.) Applicant’s trial X R.R. at 8-9. A jury convicted
Applicant and then sentenced him to sixty-five (65) years in prison on May 18,
2009. See Applicant’s trial XIII R.R. at 76; XIV R.R. at 127-129.
Applicant was represented during the pretrial and trial stage of cause number
F09-00248 by retained lead counsel Edwin Sigel, as detailed below. Applicant
was also represented at trial by second chair counsel Karen Lambert, as detailed
below.
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The Fifth Court of Appeals affirmed Applicant’s conviction on March 8,
2011, and the Court of Criminal Appeals refused to grant discretionary review on
September 14, 2011. West v. State, No. 05-09-00577-CR, 2011 WL 783616
(Tex.App.-Dallas March 8, 2011, pet.ref'd.)(not designated for publication). See
Applicant’s Writ Exhibit 4, Opinion of the 5th Court of Appeals in State v. Damon
West. Applicant was represented during his direct appeal by retained counsel,
Allan Fishburn. See Applicant’s Writ Exhibit 4.
Applicant filed a pro se application for writ of habeas corpus in cause
number W09-00248-Y(A). Counsel Sigel filed a sworn affidavit dated August 10,
2012 responding, in part, to ineffective assistance of counsel claims in Applicant’s
pro se application. See Applicant’s Writ Exhibit 1, Affidavit of Edwin Sigel. Writ
Counsel, Chip B. Lewis, filed a motion to dismiss the pro se application for writ
without prejudice, which the Court of Criminal Appeals granted on April 3, 2013.
The instant cause is an application for writ of habeas corpus filed by writ counsel
on March 19, 2013, in W09-002480Y(B) and alleges in its sole ground for relief
that Applicant was denied the effective assistance of counsel at the punishment
stage of his trial.
Karen Lambert provided writ counsel with a credible sworn affidavit in
relation to her involvement in Applicant’s trial on February 27, 2013. See
Applicant’s Writ Exhibit 3, Affidavit of Karen Lambert. Writ counsel conducted a
2
recorded interview with Counsel Sigel on May 3, 2013. See Transcript of
Interview with Counsel Sigel (Writ Hearing R.R., Exhibit 91). The Original Trial
Court appointed Special Master, April Smith, to conduct a hearing if necessary and
enter findings of fact and conclusions of law in Applicant’s writ. See Order
Appointing April Smith, attached as Appendix A. The Special Master ordered and
held a live evidentiary hearing in this case on September 5, 2013. Applicant’s lead
trial counsel, Edwin Sigel, and second chair counsel, Karen Lambert, were called
by Applicant and provided live, sworn, transcribed testimony and were cross-
examined by the State of Texas. See Reporter’s Record of proceedings of 11.07
Writ Hearing (Writ Hearing R.R.). At the conclusion of the hearing, the Special
Master informed both parties that she would prepare findings of fact and
conclusions of law recommending that relief be GRANTED to Applicant in the
form of a new punishment hearing.
The Original Trial Court judge in this case, Michael Snipes, voluntarily
recused himself, after he prematurely and improperly signed the State’s proposed
findings: without allowing the Special Master to comply with his own order that
she prepare and present her findings; before the court reporter provided him with
the record of the writ hearing; and before the parties could present argument. See
Motion to Recuse and Order of Recusal attached as Appendix B. After the
Original Trial Court’s recusal, this Court remanded this writ to Dallas County, and
3
the case was reassigned to Dallas County Criminal District Court #7 (hereafter, the
Trial Court) and Judge Jeannine Howard of that court instructed the Special Master
to file her findings. In July of 2014, the Special Master issued findings
recommending that the Trial Court and this Court grant the Applicant relief in the
form of a new punishment trial due to harmful ineffective assistance of counsel.
The Trial Court then properly reviewed all of the information from the writ and
writ hearing and adopted the findings prepared by the Special Master and
recommended to this Court that the Applicant be granted a new punishment trial
due to ineffective assistance of counsel.
On March 18, 2015, this Court ordered that this case be filed and set for
submission, and that the parties address the issue of ineffective assistance of
counsel examined in this brief.
TRIAL COURT’S FINDINGS
The Trial Court in this case entered findings based on credibility
determinations and evidentiary findings made by the Special Master who presided
over the live hearing in, and reviewed all material germane to, this writ. See Trial
Court’s Proposed Findings of Fact and Conclusions of Law attached as Appendix
C.
The Trial Court’s findings state, among other things, that in the Applicant’s
trial in this case: “Sigel was flying by the seat of his pants in this case due to his
4
failure to prepare,”; “Sigel failed to properly investigate the case and fully
understand the charge against Applicant,”; “Sigel did not have a firm command of
the facts or the law regarding EOC (Engaging in Organized Crime) or voluntary
intoxication,”; “Sigel incorrectly informed Applicant that the State could not prove
the EOC part of the indictment,”; “Sigel’s cross examination clearly showed his
lack of preparation and investigation or knowledge of the State’s evidence. Sigel
elicited damaging testimony during his cross-examination,”; “Sigel advanced
numerous unreasonable trial strategies due to his unpreparedness,”; “Sigel…
questioned many witnesses and presented witnesses that advanced the State’s
theory that Applicant was a privileged athlete who did not deserve leniency,” and;
Sigel failed to investigate or call available punishment witnesses that “would have
contributed to the mitigation evidence. Failing to call these witnesses allowed the
State to argue that the defense witnesses were worthless because they were
politicians who had not interacted with the Applicant for more than five years. It
also allowed for the State to argue that the jury should begin by considering a life
sentence and take off five for every good thing they heard about Applicant at trial.”
The Trial Court went on to specifically find, “Applicant has proven each of
the allegations regarding ineffective assistance of counsel raised in his
application,” and “Applicant has proven that he received ineffective assistance of
counsel. Applicant proved that counsel’s representation fell below an objective
5
standard of reasonableness. And he proved that that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Applicant proved that his attorney’s
representation was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy. Applicant has been denied the rights
guaranteed to him by the United States Constitution or the Texas Constitution.
This Court recommends that this writ of habeas corpus be granted.”
The Court of Criminal Appeals will ordinarily defer to trial court's findings
and conclusions that are supported by the record. See Ex parte Reed, 271 S.W.3d
698, 727 (Tex.Crim.App.2008). The Trial Court’s findings recommending that
Applicant be granted relief in the form of a new punishment trial are supported by
the record, as discussed below, and as such this Court should defer to those
supported findings.
STATEMENT OF FACTS: COUNSEL SIGEL’S
REPRESENTATION
Applicant was represented during the pretrial and trial stage of his case by
lead counsel Edwin Sigel (Counsel Sigel). See Applicant’s Trial IV- XIV R.R.;
Applicant’s Writ Exhibit 1, 3. Applicant’s family hired Counsel Sigel sometime
before the pretrial hearing held on October 16, 2008 – an exact date cannot be
confirmed due to Counsel Sigel’s failure to maintain Applicant’s file. See IV R.R.
of Applicant’s trial; Applicant’s Writ Exhibit 1, 3. Counsel Sigel failed to preserve
6
any part of his file in Applicant’s case, erroneously believed it was in a storage unit
that contained only his personal belongings, and is unable to offer any explanation
for what happened to Applicant’s file. See Writ Hearing R.R. at 7-8.
Counsel Sigel conducted pretrial hearings, set Applicant’s case for trial, and
acted as sole counsel until approximately sixty (60) days before the second
“special set” trial setting in Applicant’s case on May 11, 2009. See Applicant’s
Jury Trial IV-VI R.R.; Applicant’s Writ Exhibit 3. Counsel Sigel had also
previously announced ready for a “special set” February 2009 trial date but was
unable to go to trial in Applicant’s case on that date due to a personal medical
event. See Applicant’s Writ Exhibit 3. In Dallas County District Court Number 7
when a case is “special set” it means that everyone involved in the trial is on notice
and agrees that the trial is definitely going to be tried by the court on that date. See
Applicant’s Writ Exhibit 3.
Second-Chair Counsel Karen Lambert
The facts asserted in Karen Lambert’s (Ms. Lambert) sworn affidavit and
writ hearing testimony are credible and reliable. See Applicant’s Writ Exhibit 3;
Trial Court’s Findings of Fact and Conclusions of Law. Applicant’s family hired
Ms. Lambert on March 12, 2009, after Counsel Sigel’s personal medical event, for
the purpose of assisting Counsel Sigel at Applicant’s upcoming trial. See
Applicant’s Writ Exhibit 3. Ms. Lambert has practiced criminal law in the Dallas
7
County area for over twenty-five (25) years, has tried over three hundred criminal
cases to verdict, enjoys a positive professional reputation in the legal community,
and is familiar with the objective standard of reasonableness for effective
assistance of criminal defense counsel under the current prevailing norms. See
Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 102-104; Trial Court’s Findings
of Fact and Conclusions of Law.
All important decisions regarding relaying the State’s evidence to Applicant,
advising Applicant regarding his rights and plea, whether or not to set the case for
trial, trial strategy, and identifying and designating lay witnesses for trial were
made by Counsel Sigel before Ms. Lambert was hired to assist with the trial;
Counsel Sigel never consulted Ms. Lambert regarding any of the lay witnesses, and
none of them changed once she was hired. See Applicant’s Writ Exhibit 3; Writ
Hearing R.R. at 104-120. Ms. Lambert’s participation in Applicant’s trial came
from her volunteering to take on tasks – that she could attempt to complete in the
limited time before trial – that she believed should have already been done by
Counsel Sigel or needed to be done to protect Applicant’s rights. See Applicant’s
Writ Exhibit 3; Writ Hearing R.R. at 104-120. Ms. Lambert focused her
involvement in Applicant’s case on conducting discovery, properly filing motions
to contest the search warrants, and preparing the defense experts to testify. See
Writ Hearing R.R. at 104-120.
8
Ms. Lambert was made to feel unwelcome and like her help was not needed
by Counsel Sigel during her involvement in Applicant’s case. See Writ Hearing
R.R. at 115-116, 147. Ms. Lambert repeatedly tried to meet with Counsel Sigel,
including the weekend before trial, to help prepare for trial and so that he could
inform her of what her exact role in trial was going to be, but was unable to get
Counsel Sigel to agree to meet with her. See Writ Hearing R.R. at 109-110. Ms.
Lambert became concerned during Counsel Sigel’s voir dire because it was
confusing to the jurors and didn’t address the mitigation issues specific to their
case. See Writ Hearing R.R. at 111. Counsel Sigel called Ms. Lambert’s
involvement in the trial a “betrayal” by the Applicant’s family, stated that she was
only hired on to deal with the mental health experts, and that his overall experience
with her during trial was that, “she’s an idiot.” See Writ Hearing Exhibit 25 at 26,
29-30, 39-40, and 91. Counsel Sigel’s writ hearing testimony that Ms. Lambert
served as an equal participant in the trial and that he actively involved her in the
strategic decisions made before and during Applicant’s trial is not credible or
reliable. See Writ Hearing R.R. at 6-7; Trial Court’s Findings of Fact and
Conclusions of Law.
The State’s Apparent Theory of Punishment Aggravation
The State’s apparent theory of punishment aggravation was that Applicant
was a dangerous, unremorseful, privileged athlete from a good family who had
9
every advantage, was so poorly regarded that he didn’t have anyone who recently
had contact with him who was willing to testify to anything good about his
character, and didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5.
The State explicitly challenged the jury to start their punishment deliberations at a
life sentence, the top of the range of punishment, and “take off five” from the life
sentence for every good thing they had heard about Applicant from the evidence
introduced by Applicant at trial. See Applicant’s Writ Exhibit 5.
SUMMARY OF THE ARGUMENT
In his sole issue, the Applicant complains that his trial counsel was
ineffective for failing to properly prepare, investigate, and represent the Applicant
in his trial and that he was prejudiced at the punishment stage of his trial by
counsel’s ineffective assistance.
SOLE ISSUE
DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE?
A. APPLICANT’S CLAIM
In his sole ground in his writ application, the Applicant maintains that trial
counsel rendered ineffective assistance.
10
B. ARGUMENT AND AUTHORITIES
1. DEFICIENT PERFORMANCE
Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984), an ineffective assistance of counsel claim is subjected to a
two-step analysis whereby the applicant must show that: (1) counsel’s performance
fell below an objective standard of reasonableness, and (2) but for counsel’s
unprofessional errors, there is a reasonable probability that the result of the
proceedings would have been different. Strickland defines reasonable probability
as a “probability sufficient to undermine confidence in the outcome.” 466 U.S. at
694, 104 S.Ct. at 2068. The United States Supreme Court has explained that
“strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.”
Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). Trial
counsel has an absolute duty “to conduct a prompt investigation of the
circumstances of the case and to explore all avenues likely to lead to facts relevant
to the merits of the case.” ABA Standards for Criminal Justice: The Defense
Function, Standard 4-4.1 (2d ed. 1986).
11
An attorney’s strategy can be so ill-chosen as to render a trial fundamentally
unfair. See, United States v. Rusmisel, 716 F2d 301 310 (5th Cir.1983). As the
Supreme Court explained in Strickland, strategy decisions should be judged by an
objective standard of reasonableness. Strickland v. Washington, supra, 46 U.S.
687-88; 104 S.Ct. at 2064.
2. PREJUDICE
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984), also requires that the applicant must show that “but for
counsel’s unprofessional errors, there is a reasonable probability that the result of
the proceedings would have been different.” Strickland defines reasonable
probability as a “probability sufficient to undermine confidence in the outcome.”
466 U.S. at 694, 104 S.Ct. at 2068.
To establish that trial counsel’s deficient performance prejudiced Applicant,
it is not necessary to show that counsel’s conduct “more likely than not altered the
outcome in the case.” Rather, in determining whether a defendant was prejudiced
by counsel’s inadequate representation, this Court should examine the evidence
that could have been presented to the jury had counsel performed competently, and
compare that to the evidence that the jury actually heard. Duncan v. Ornoski, 528
F.3d 1222 (9th Cir. 2008). If the difference between the evidence that could have
been presented and that which actually was presented is sufficient to “undermine
12
confidence in the outcome” of the proceeding, the prejudice prong is satisfied.
Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2052.
While a convicted defendant must establish actual prejudice from his
attorney’s conduct, the State cannot avoid the consequences of a finding of
ineffective assistance by arguing that the prejudice is de minimus. For example,
any amount of additional time in prison constitutes prejudice. Glover v. United
States, 531 U.S. 198, 203, 121 S. Ct. 696, 700, 148 L. Ed. 2d 604 (2001)(emphasis
added).
C. THE EVIDENCE REGARDING THE INEFFECTIVE
ASSISTANCE CLAIM
1. Specific Claims, Supporting law, and Factual Support from the Record
(a). Counsel Sigel Failed to Properly Investigate and Inform Applicant of the
Law of Engaging in Organized Criminal Activity (EOCA) and the
Overwhelming Evidence of Applicant’s Guilt in the State’s Possession
Counsel Sigel failed to sufficiently investigate, gain a firm command of,
consult with, and inform Applicant regarding the EOCA law and the
overwhelming evidence of Applicant’s guilt of EOCA in the State’s possession.
See Applicant’s Writ Exhibit 2; See Writ Hearing Exhibit 25 at 17-20, 68; See Writ
Hearing R.R. at 8-20, 23, 30-31, 35-36, 39, 68, 72. The State had overwhelming
13
and voluminous evidence of guilt in the case against Applicant, including video,
fingerprints, eyewitness identification, co-actor testimony, and DNA. See
Applicant’s Jury Trial R.R.; Applicant’s Writ Exhibit 1, 3. Counsel Sigel’s
assertions that he did, or may have, personally thoroughly investigated,
understood, and explained the EOCA law to Applicant are not credible or reliable.
See Writ Hearing R.R. at 8-20, 23, 30-31, 35-36, 39, 68, 72; Trial Court’s
Findings of Fact and Conclusions of Law. Counsel Sigel’s assertions that he did,
or may have, personally thoroughly investigated, understood, and explained the
EOCA law to Applicant are directly contradicted by the fact that he admitted that
he informed Applicant, who was confined to the Dallas County Jail, that Applicant
should take it upon himself to look up anything that he did not understand about
the EOCA charge in his case on the internet. See Writ Hearing R.R. at 92. Counsel
Sigel’s assertions that he did, or may have, personally thoroughly reviewed all of
the evidence in the State’s possession are not credible or reliable. See Writ Hearing
R.R. at 35-36, 79; Trial Court’s Findings of Fact and Conclusions of Law.
Counsel Sigel stated that he relied on Applicant’s original version of facts
alone to form the opinion that Applicant was not guilty of EOCA. See Writ
Hearing R.R. at 79-80. Counsel Sigel misinformed Applicant that the State could
not prove the EOCA charge against Applicant. See Applicant’s Writ Exhibit 2;
Writ Hearing R.R. at 23, 30-31, 68, 121, 128-129, 150-151; Trial Court’s Findings
14
of Fact and Conclusions of Law. Counsel Sigel’s assertions that he personally
thoroughly reviewed all of the evidence in the State’s possession are directly
contradicted by the Reporter’s Record from Applicant’s trial and his own assertion
that Ms. Lambert did discovery, prepared for trial, and likely knew information
about the State’s case that he did not know and that this led to the admission of
damaging evidence. See Applicant’s Jury Trial R.R.; Writ Hearing Exhibits 6, 7, 8,
9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 25 at 91; Trial Court’s Findings of
Fact and Conclusions of Law.
Counsel Sigel admitted that he only informed Applicant of some pieces of
evidence against him and then let Applicant learn other pieces of evidence by
listening to the witnesses testify about them at trial. See Writ Hearing R.R. at 35-
36. Counsel Sigel stated that he “wasn’t able to discuss a lot of things with Damon
West prior to trial” and that he let Applicant learn some of the incriminating
evidence against him by listening to the witnesses testify at trial because Applicant
was in jail and it was “a big job to go through everything with Damon.” See Writ
Hearing R.R. at 35-36, 39.
Ms. Lambert stated that there was nothing about Applicant’s status of being
in jail that made it impossible to properly communicate with Applicant. See Writ
Hearing R.R. at 118. Ms. Lambert stated that no reasonable attorney would rely
on a client’s version of the facts of a case alone and that she would only form her
15
belief of the strength of a case based on conducting a thorough discovery process.
See Writ Hearing R.R. at 149-150. Ms. Lambert stated that no reasonable attorney
would have informed Applicant that the State could not prove the EOCA charge
against Applicant in this case and that doing so would have tremendous sway with
any client. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 121, 150. Ms.
Lambert stated that any reasonable criminal attorney would have fully consulted
with Applicant, confronted him with all of the State’s evidence of guilt of EOCA,
and urged Applicant to enter a plea of guilty to the jury. See Applicant’s Writ
Exhibit 3; Writ Hearing R.R. at 139-141, 144-145.
Counsel Sigel’s assertion that he fully investigated and knew all of the
evidence against Applicant and intentionally chose to only inform Applicant of
some pieces of evidence against him and let Applicant learn others by listening to
the witnesses testify at trial because he was in jail and is not credible or reliable.
See Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel’s
failure to inform Applicant of all of the evidence against him in the State’s
possession was due to the fact that he had not properly investigated and reasonably
prepared for the trial in Applicant’s case and was himself not aware of the
evidence in the possession of the State, until it was admitted in front of the jury, at
trial. Id. Assuming arguendo that Counsel Sigel did intentionally only inform
Applicant of some pieces of evidence against him and let Applicant learn others by
16
listening to the witnesses testify at trial because Applicant was in jail and it was “a
big job to go through everything with Damon,” his actions were not reasonable or
effective trial strategy in Applicant’s case and constituted deficient performance.
See Trial Court’s Findings of Fact and Conclusions of Law. There is absolutely no
plausible basis for the strategy or tactic of Counsel Sigel’s failure to properly
investigate, gain a firm command of, consult with and inform Applicant of EOCA
law and the overwhelming evidence of Applicant’s guilt of EOCA in the State’s
possession. Counsel Sigel’s failure to properly investigate, gain a firm command
of, consult with and inform Applicant of the EOCA law and the overwhelming
evidence of Applicant’s guilt in the State’s possession constituted deficient
performance. Id.
Counsel Sigel lost credibility with the jury and wholly failed to advance his
apparent trial strategy of mitigation by failing to properly investigate, gain a firm
command of, consult with and inform Applicant of the EOCA law and the
overwhelming evidence of Applicant’s guilt in the State’s possession. Counsel
Sigel’s failure to properly investigate, gain a firm command of, consult with and
inform Applicant of the EOCA law and the overwhelming evidence of Applicant’s
guilt in the State’s possession resulted in Applicant taking Counsel Sigel’s advice
and pleading not guilty and requesting a jury trial which invited the State’s theory
that Applicant was unremorseful, privileged athlete from a good family who had
17
every advantage, and didn’t deserve leniency from the jury. See Applicant’s Writ
Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law.
Applicant was unable to make an informed decision to enter a plea or to
request a jury trial because Counsel Sigel failed to properly inform Applicant of
the EOCA law and of the overwhelming evidence of Applicant’s guilt in the
State’s possession. See Trial Court’s Findings of Fact and Conclusions of Law.
Applicant did not make an informed personal decision to enter his plea in the
primary case. Id.
Counsel Sigel never conducted the necessary legal and factual investigation
into Applicant’s case, which would have enabled him to make an informed rational
decision to pursue any given course of conduct within the realm of trial strategy.
Ex Parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980). Counsel Sigel
failed to fulfill his duty to make an independent investigation of the facts in
Applicant’s case. See Ex Parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990);
Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App. 1982); Ex parte Raborn, 658
S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim.
App. 1980). Counsel Sigel’s stated reliance on Applicant’s original recounting of
the facts of the case did not fulfill his duty to make an independent investigation of
the facts in Applicant’s case. See Ex Parte Wellborn, 785 S.W.2d 391 (Tex. Crim.
App. 1990); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). Counsel
18
Sigel failed to gain a firm command of the facts of Applicant’s case and of the law
governing Applicant’s case before Applicant’s trial. See Ex Parte Ybarra, 629
S.W.2d 943, 946 (Tex.Cr.App.1982); Ex Parte Duffy, 607 S.W.2d 507, 526
(Tex.Cr.App.1980).
Counsel Sigel failed to fulfill his duty “to advise the defendant of the
available options and possible consequences” of the different pleas that may be
entered to a criminal charge. Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir.
1981)(citation omitted). Counsel Sigel failed to properly advise Applicant
concerning determining how to plead and whether he should enter a guilty plea.
Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997). Counsel Sigel failed to
confer with Applicant sufficiently to prepare a defense. See Ex parte Marez, 505
S.W.2d 930 (Tex. Crim. App. 1974); Ex parte Bratchett, 513 S.W.2d 851 (Tex.
Crim. App. 1974); Ex parte Cavett, 521 S.W.2d 619 (Tex. Crim. App. 1975); Ex
parte Howard, 591 S.W.2d 906 (Tex. Crim. App. 1980); Ex parte Harris, 596
S.W.2d 893 (Tex. Crim. App. 1980); Ex parte Ybarra, 629 S.W.2d 943 (Tex.
Crim. App. 1982); Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983); Ex
parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Murphy v. State, 663
S.W.2d 604 (Tex. App.— Houston [1st Dist.] 1983, no pet.); Hutchinson v. State,
663 S.W.2d 610 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d); Sanders v.
State, 715 S.W.2d 771 (Tex. App.—Tyler 1986, no pet.); Strickland v. State, 747
19
S.W.2d 59 (Tex. App.—Texarkana 1988, no pet.); Mitchell v. State, 762 S.W.2d
916 (Tex. App.—San Antonio 1988, pet. ref’d); Haynes v. State, 790 S.W.2d 824
(Tex. App.—Austin 1990, no pet.); Jackson v. State, 857 S.W.2d 678 (Tex. App.—
Houston [14thDist.] 1993, pet. ref’d); Catalan v. Cockrell, 315 F.3d 491 (5th Cir.
2002). There is absolutely no plausible basis in the strategy or tactics for Counsel
Sigel’s actions of failing to properly investigate and inform Applicant of the law of
engaging in organized criminal activity and the overwhelming evidence of guilt in
the State’s possession. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App.
1978).
Applicant has shown that, but for trial counsel’s failure to properly
investigate and inform Applicant of the law of EOCA and the overwhelming
evidence of guilt in the State’s possession, the result of the punishment proceeding
would have been different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v.
Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57
(Tex. Crim. App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v.
State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part
Strickland standard).
(b) Counsel Sigel Failed to Properly Investigate and Inform Applicant of the
Option and Advantages of Pleading Guilty to the Jury
20
Counsel Sigel never informed Applicant that he could plead guilty to the
jury and ask the jury to assess his punishment. See Applicant’s Writ Exhibits 2, 3;
Writ Hearing Exhibit 25 at 12-14; Trial Court’s Findings of Fact and Conclusions
of Law. Counsel Sigel never advised Applicant that a plea of guilty to the jury
would be a good way to try to mitigate his punishment. See Applicant’s Writ
Exhibits 2, 3; Writ Hearing Exhibit 25 at 12-14; Writ Hearing R.R. at 18-20, 39,
72, 81, 88; Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel
advised Applicant that the best way to mitigate his punishment would be to plead
not guilty to the jury and then let the jury assess his punishment. See Applicant’s
Writ Exhibit 2; Writ Hearing Record at 14-16, 83. Counsel Sigel stated that he
never informed Applicant that he could plead guilty to the jury and ask them to
assess his punishment or that a guilty plea would be a good way to try to mitigate
his punishment because he doesn’t “particularly care for” pleas of guilty to the jury
and does not “do them.” See Writ Hearing Exhibit 25 at 13-14.
Ms. Lambert stated that she believes strongly that a plea of guilty to the jury
in this case would have been the superior way to try to mitigate Applicant’s
punishment. See Applicant’s Writ Exhibit 3. Ms. Lambert stated that she believes
any reasonable criminal attorney would have fully explained to Applicant the
option of pleading guilty to the jury, confronted him with all of the State’s
evidence, and strongly encouraged him to plead guilty. See Applicant’s Writ
21
Exhibit 3. Ms. Lambert stated that she never witnessed Counsel Sigel do any of
these things and that Counsel Sigel’s choice to not do so did not advance counsel’s
apparent trial strategy of mitigation. See Applicant’s Writ Exhibit 3.
Counsel Sigel’s decision to not inform and admonish Applicant of the option
and full strategic advantage of a plea of guilty to the same jury that would assess
punishment after hearing the State’s overwhelming evidence of guilt because
Counsel Sigel doesn’t “particularly care for” pleas of guilty to the jury and does
not “do them” was not reasonable or effective trial strategy in Applicant’s case.
See Trial Court’s Findings of Fact and Conclusions of Law. There is absolutely no
plausible basis for the strategy or tactics of Counsel Sigel’s failure to inform
Applicant of the option and advantages of pleading guilty to the jury. Counsel
Sigel’s failure to inform Applicant that he could plead guilty to the jury and ask
them to assess his punishment constituted deficient performance. See Trial Court’s
Findings of Fact and Conclusions of Law. Counsel Sigel’s failure to inform
Applicant that a plea of guilty to the jury would be a good way to try to mitigate
his punishment constituted deficient performance. Id. Counsel lost credibility with
the jury and wholly failed to advance his apparent trial strategy of mitigation by
failing to explain to Applicant the option and advantages of pleading guilty to the
jury. Id. Counsel Sigel’s failure to explain to Applicant the option and advantages
of pleading guilty to the jury resulted in Applicant pleading not guilty and
22
requesting a jury trial which invited the State’s theory that Applicant was
unremorseful, privileged athlete from a good family who had every advantage, and
didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5; Id.
Applicant was unable to make the personal decisions to enter a plea and to
request a jury trial because Counsel Sigel never made him aware of the possible
risks and benefits of entering a plea of not guilty and requesting a jury trial. United
States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Counsel
did not and could not make a sound strategic decision to not inform Applicant of
the option and advantages of pleading guilty to the jury because he failed to
properly investigate and prepare for trial. See Ex Parte Wellborn, 785 S.W.2d 391
(Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App.
1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy,
607 S.W.2d 507 (Tex. Crim. App. 1980). There is absolutely no plausible basis in
the strategy or tactic of Counsel Sigel’s failure to properly investigate and inform
Applicant of the option and advantages of pleading guilty to the jury. Ex parte
Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant has shown that,
but for trial counsel’s failure to properly investigate and inform Applicant of the
option and advantages of pleading guilty to the jury, the result of the punishment
proceeding would have been different. See Ex Parte Cash, 178 S.W.3d 816, 818;
Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726
23
S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland standard in Texas);
and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the
two-part Strickland standard).
Applicant was unable to make an informed decision to enter a plea of not
guilty and to request a jury trial because he was not made aware of the possible
risks and benefits of entering a plea of not guilty and of requesting a jury trial. See
Trial Court’s Findings of Fact and Conclusions of Law. Applicant did not make an
informed personal decision to enter a plea of not guilty in the primary case. Id.
Applicant has shown that, but for trial counsel’s failure to properly investigate and
inform Applicant of the option and advantages of pleading guilty to the jury, the
result of the punishment proceeding would have been different. See Ex Parte Cash,
178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the
Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.
Crim. App. 1992) (defining the two-part Strickland standard).
(c) Counsel Sigel’s Stated Strategy and Employment of the “Nickel Defense”
and/or the “Truth Defense”
Counsel Sigel stated that he does not believe in ever advising a client to
plead guilty to the jury and instead believes in something he has created and named
the “nickel defense” and/or the “truth defense.” See Writ Hearing R.R. at 14-16.
24
Counsel Sigel’s “nickel defense” involved him attempting to mitigate Applicant’s
punishment by advising Applicant to enter a plea of not guilty and then Counsel
Sigel making the unilateral decision to present the entire truth by letting every
single piece of evidence in – whether the evidence was admissible or not, harmful
to Applicant or not, and offered by the State or not – during the guilt/innocence
phase of Applicant’s trial. See Writ Hearing Exhibit 25 at 9-14; Writ Hearing R.R.
at 14-16, 44, 48-49. Counsel Sigel never consulted with or informed Applicant or
Ms. Lambert regarding his stated strategy to let the jury know the truth through the
use of the “nickel defense,” never explained the “nickel defense” to either, and
never got Applicant’s consent before pursuing the “nickel defense” in Applicant’s
trial. See Writ Hearing Exhibit 25 at 9-14, 66, 68; Writ Hearing R.R. at 71-72,
110-112, 131-132, 140; Trial Court’s Findings of Fact and Conclusions of Law.
Counsel Sigel’s assertions that he did, or possibly did, try to explain the
“nickel defense” to Applicant are not credible or reliable and are directly
contradicted by his admission that, “(n)o. I never explained the nickel,” to
Applicant. See Writ Hearing R.R. at 71-72; Writ Hearing Exhibit 25 at 66; Trial
Court’s Findings of Fact and Conclusions of Law. Counsel Sigel stated that
pursuing the whole truth by having Applicant plead not guilty and then letting
every piece of possible evidence in whether it helped or harmed Applicant during
guilt/innocence was done to help mitigation and make the jury see Counsel Sigel as
25
an honest lawyer. See Writ Hearing R.R. at 86. Counsel Sigel’s assertions that he
intentionally pursued the truth by having Applicant plead not guilty and then let
every piece of possible evidence in during guilt/innocence to help mitigation and
make the jury trust Counsel Sigel are not credible or reliable and are directly
contradicted by the fact that he indeed objected to some pieces of evidence and
attempted to keep them out, and not to others, throughout Applicant’s trial. See
Applicant’s Jury Trial R.R.
Ms. Lambert stated that Counsel Sigel never informed her of the existence of
or his intent to use the “nickel defense” or the “truth defense.” See Applicant’s Writ
Exhibit 3; Writ Hearing R.R. at 110-112, 131-132, 140. Ms. Lambert stated that
Counsel Sigel should have fully informed and gotten the consent of Applicant
before advancing the novel “nickel defense” and that it was a violation of his duty
to Applicant and not reasonable to have not done so. See Writ Hearing R.R. at 139-
141. Ms. Lambert stated that it is not reasonable or effective trial strategy for a
defense attorney to pursue the whole truth by letting every single piece of evidence
in – whether the evidence was admissible or not, harmful or not, and offered by the
State or not – during the guilt/innocence phase of Applicant’s trial. See Writ
Hearing R.R. at 110-112, 131-132. Ms. Lambert stated that the evidence that came
in at trial as a result of Counsel Sigel’s implementation of the “nickel defense” or
26
“truth defense” harmed Counsel Sigel’s apparent strategy of punishment
mitigation. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 110-112, 132.
Counsel Sigel’s decision to advise Applicant to plead not guilty and then his
action of letting many damaging pieces of evidence in during guilt/innocence was
due to the fact that he had not properly investigated and reasonably prepared for
the trial in Applicant’s case and was not aware of the damaging evidence in the
State’s possession before it was elicited from witnesses, and admitted in front of
the jury, at trial. See Trial Court’s Findings of Fact and Conclusions of Law.
Assuming arguendo that Counsel Sigel did intentionally decide to pursue the
whole truth by having Applicant plead not guilty and then let every piece of
possible evidence in during guilt/innocence to somehow help mitigation and make
the jury trust Counsel Sigel was not a reasonable or effective trial strategy in
Applicant’s case and constituted deficient performance. Id. Counsel Sigel failed to
sufficiently admonished Applicant of the possible negative consequences and
strategic downfalls of his stated strategy to pursue the whole truth through the use
of the “nickel defense.” Id. Counsel Sigel’s failure to inform Applicant of, explain,
admonish, and get Applicant’s consent to use his stated strategy to pursue the
whole truth through the use of the “nickel defense” in order to make the jury trust
Counsel Sigel was not reasonable or effective trial strategy in Applicant’s case. Id.
Counsel Sigel’s actions in advising Applicant to enter a plea of not guilty and then
27
Counsel Sigel making the unilateral decision to advance his stated strategy to
“pursue the truth” by letting every single piece of evidence in – admissible or not,
harmful or not, and offered by the State or not, during the guilt/innocence phase of
trial was not reasonable or effective trial strategy in Applicant’s case. Id.
When judged by an objective standard of reasonableness, Counsel Sigel’s
stated strategy to purse the truth by letting every single piece of evidence in –
admissible or not, harmful or not, and offered by the State or not, during the
guilt/innocence phase of trial, through the use of his “nickel defense” was so ill-
chosen that it rendered Applicant’s trial fundamentally unfair. See United States v.
Rusmisel, 716 F.2d 301, 310 (5th Cir. 1983); Strickland v. Washington, supra, 466
U.S. 687-88; 104 S. Ct. at 2064. Applicant has shown that, but for trial counsel’s
unreasonable unilateral decision to advance his stated strategy to “pursue the truth”
by letting every single piece of evidence in – admissible or not, harmful or not, and
offered by the State or not, during the guilt innocence phase of trial through the use
of his “nickel defense,” the result of the punishment proceeding would have been
different. See Ex Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S.
668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)
(adopting the Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415,
434 (Tex. Crim. App. 1992) (defining the two-part Strickland standard).
28
There is absolutely no plausible basis for the stated strategy or tactics of
Counsel Sigel’s decision to “purse the truth” through the use of the “nickel
defense” in Applicant’s trial. See Trial Court’s Findings of Fact and Conclusions
of Law. Counsel Sigel’s decision to advance his stated strategy to “purse the truth”
through the use of the “nickel defense” in Applicant’s trial constituted deficient
performance. Id. Counsel Sigel lost credibility with the jury and wholly failed to
advance his apparent trial strategy of mitigation by failing to explain to Applicant
the option and advantages of pleading guilty to the jury. Id. Counsel Sigel’s stated
strategy to pursue the truth resulted in many pieces of evidence that were damaging
to Applicant be admitted in front of the jury. Id. Applicant was unable to make an
informed decision to enter a plea of not guilty and to request a jury trial after
consultation with Counsel Sigel because Counsel Sigel did not make him aware of
the existence of or possible risks of entering a plea of not guilty and pursuing
Counsel Sigel’s plan to pursue the whole truth through the use of the “nickel
defense” during a jury trial. Id. Applicant did not make an informed personal
decision to enter a plea of not guilty and pursue the “nickel defense” in the primary
case. Id.
Applicant has shown that, but for trial counsel’s stated strategy and
employment of the “Nickel Defense” and/or the “Truth Defense” in this case, the
result of the punishment proceeding would have been different. See Ex Parte Cash,
29
178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the
Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.
Crim. App. 1992) (defining the two-part Strickland standard).
(d) Counsel Sigel Failed to Object to Detective Gilbert Travis’ Testimony
Regarding Applicant’s Inadmissible Unrecorded Oral Statement Taken
During Custodial Interrogation
Counsel Sigel failed to timely object when the State called Detective Gilbert
Travis (Detective Travis) to testify about the unrecorded oral statement he took
from Applicant during a custodial interrogation after Applicant’s arrest in this case.
See Applicant’s Writ Exhibit 6. Detective Travis testified that according to his
memory of this unrecorded custodial interrogation, Applicant made many false
denials of responsibility in the burglaries, wanted to blame unknown other people
for the crimes, and claimed to not know how the stolen items got in the car he was
driving. See Applicant’s Writ Exhibit 6. Applicant did not testify at his trial and
this denial of responsibility, recounted from the memory of an adverse witness,
served as the only statement that the jury ever heard Applicant make when directly
questioned about the offense. See Applicant’s Jury Trial R.R. Counsel Sigel never
timely objected to the admission of the unrecorded custodial interrogation and only
objected when the court sua sponte noted its glaring inadmissibility by stating,
30
“(i)t’s clearly not admissible,” and asked for an objection outside of the presence
of the jury after the jury had already heard the testimony in its entirety. See
Applicant’s Writ Exhibit 6. When asked by the trial court to articulate its theory of
admissibility for the offered unrecorded custodial interrogation in Applicant’s trial
the State stood silent on the record and did not offer any possible theory of
admissibility. See Applicant’s Writ Exhibit 6. Detective Travis’ testimony
regarding Applicant’s denial of responsibility during the unrecorded custodial
interrogation this case was an inadmissible unrecorded statement under Texas law.
See T.C.C.P. § 38.21, 38.22, & 38.23.
Counsel Sigel’s assertion at the writ hearing that he may have known about
the statement’s inadmissible nature before the trial began is not credible or reliable.
See Writ Hearing R.R. at 31-38; Trial Court’s Findings of Fact and Conclusions of
Law. Counsel Sigel’s assertions that he intentionally let the unrecorded custodial
interrogation evidence in to pursue the whole truth and to let every single piece of
evidence in as part of his “nickel defense,” are not credible or reliable and are
directly contradicted by the fact that, once prompted by the trial court, he objected,
asked that the jury be instructed to disregard the evidence, and moved for a
mistrial. See Writ Hearing R.R. at 31-38.
Ms. Lambert stated that she would have objected to the testimony in an
attempt to protect Applicant’s rights based on the inadmissible nature of this
31
statement. See Writ Hearing R.R. at 126-127. Ms. Lambert stated that Counsel
Sigel failed to object to this testimony and that failing to object to this testimony
did not advance Counsel Sigel’s sworn trial strategy of mitigation. See Applicant’s
Exhibit 3; Writ Hearing R.R. at 127.
Counsel Sigel did not and could not make a sound strategic decision to not
timely object to the admission of the unrecorded custodial interrogation because he
failed to properly investigate and prepare for trial. See Ex Parte Wellborn, 785
S.W.2d 391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943 (Tex.
Crim. App. 1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Ex
Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). Detective Travis’ testimony
regarding Applicant’s denial of responsibility during the unrecorded custodial
interrogation this case was an inadmissible unrecorded statement under Texas law.
See T.C.C.P. § 38.21, 38.22, & 38.23. There is absolutely no plausible basis in the
strategy or tactic of Counsel Sigel’s failure to timely object to the admission of the
unrecorded custodial interrogation. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex.
Crim. App. 1978). Applicant has shown that, but for trial counsel’s failure to
timely object to the admission of the unrecorded custodial interrogation, the result
of the punishment proceeding would have been different. See Ex Parte Cash, 178
S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez
v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland
32
standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App.
1992) (defining the two-part Strickland standard).
Counsel Sigel’s failure to timely object to the inadmissible statement was
due to the fact that he had not properly investigated and reasonably prepared for
the trial in Applicant’s case and was not aware of the issues with the statement
before the evidence was ever elicited by the State, and admitted in front of the jury,
at trial. See Trial Court’s Findings of Fact and Conclusions of Law. Assuming
arguendo that Counsel Sigel did intentionally let the unrecorded custodial
interrogation evidence in to pursue the whole truth and to let every single piece of
evidence in as part of his “nickel defense,” that was not a reasonable or effective
trial strategy in Applicant’s case. Id. There is absolutely no plausible basis for the
stated strategy or tactics of Counsel Sigel’s failure to timely object to the
admission of the unrecorded custodial interrogation. Id. Counsel Sigel’s failure to
timely object to the unrecorded custodial interrogation constituted deficient
performance. Id. Counsel Sigel’s failure to timely object to the unrecorded
custodial interrogation was not consistent with and did not advance Applicant’s
defensive strategy of mitigation. Id. The admission of the unrecorded custodial
interrogation reinforced the State’s theory and argument that Applicant was a
dangerous, unremorseful, privileged athlete from a good family who had every
advantage, was so poorly regarded that he didn’t have anyone who recently had
33
contact with him who was willing to testify to anything good about his character,
and didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5; Trial
Court’s Findings of Fact and Conclusions of Law.
Applicant has shown that, but for trial counsel’s failure to object to
testimony regarding Applicant’s inadmissible unrecorded oral statement taken
during custodial interrogation, the result of the punishment proceeding would have
been different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington,
466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.
App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840
S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland
standard).
(e) Counsel Sigel Failed to Object to Detective Travis’ Speculative Testimony
that Applicant Was in Possession of the Identification of a Police Officer
Because He Was Planning to Use It to Commit Crimes While Impersonating a
Police Officer
Counsel Sigel failed to object when the State elicited speculative testimony
from Detective Travis that Applicant was in possession of items of identification
from a police officer because Applicant was going to use them to commit
extraneous future crimes while impersonating a police officer. See Applicant’s Writ
Exhibit 7. The State elicited inadmissible speculative extraneous testimony from
34
Detective Travis regarding his guess as to what crimes Applicant might commit
with the police identification that was in his possession as a result of a burglary.
See Applicant’s Writ Exhibit 7. Detective Travis was allowed to speculate that he
was concerned that Applicant was going to use the identification to commit further
scarier crimes while impersonating a police officer. See Applicant’s Writ Exhibit 7.
The State never had in its possession, or offered any evidence at trial, that
Applicant targeted the homes of police officers, ever impersonated a police officer
for any purpose, or planned to commit extraneous crimes while impersonating a
police officer. See Applicant’s Jury Trial R.R.; Writ Hearing R.R. at 127-128.
Detective Travis’ testimony regarding his guess as to what crimes Applicant would
commit with the police identification that was in his possession as a result of a
burglary was inadmissible speculation and extraneous evidence under Texas law.
See T.R.E. §402, 403, 404, 602, 701; Trial Court’s Findings of Fact and
Conclusions of Law.
Counsel Sigel’s assertion at the writ hearing that he may have known about
the statement’s inadmissible nature before the trial began is not credible or reliable.
See Writ Hearing R.R. at 39-41; Trial Court’s Findings of Fact and Conclusions of
Law. Counsel Sigel’s assertions that he intentionally let the speculative extraneous
testimony in to pursue the whole truth and to let every single piece of evidence in
as part of his “nickel defense,” are not credible or reliable. See Writ Hearing R.R.
35
at 14-16; Trial Court’s Findings of Fact and Conclusions of Law.
Ms. Lambert stated that a review of discovery showed that there was no
allegation that Applicant had impersonated a police officer and that she would not
have asked any such open-ended question that would allow an adverse witness to
speculate on issues that would harm Applicant. See Writ Hearing R.R. at 127-128.
Ms. Lambert stated that Counsel Sigel failed to object to this testimony and that
failing to object to this testimony did not advance Counsel Sigel’s sworn trial
strategy of mitigation. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 128.
Detective Travis’ testimony regarding his guess as to what crimes Applicant
would commit with the police identification that was in his possession as a result
of a burglary was inadmissible speculation and extraneous evidence under Texas
law. See T.R.E. §402, 403, 404, 602, 701. Counsel did not and could not make a
sound strategic decision to not object to the inadmissible speculative extraneous
testimony from Detective Travis regarding his guess as to what crimes Applicant
might commit with the police identification that was in his possession as a result of
a burglary because he failed to properly investigate and prepare for trial. See Ex
Parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629
S.W.2d 943 (Tex. Crim. App. 1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim.
App. 1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). There is
absolutely no plausible basis in the strategy or tactic of Counsel Sigel’s failure to
36
object to the inadmissible speculative extraneous testimony from Detective Travis
regarding his guess as to what crimes Applicant might commit with the police
identification that was in his possession as a result of a burglary. Ex parte Ewing,
570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant has shown that, but for
trial counsel’s failure to object to the inadmissible speculative extraneous
testimony from Detective Travis regarding his guess as to what crimes Applicant
might commit with the police identification that was in his possession as a result of
a burglary, the result of the punishment proceeding would have been different. See
Ex Parte Cash, 178 S.W.3d at 818; Strickland v. Washington, 466 U.S. 668, 686
(1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting
the Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.
Crim. App. 1992) (defining the two-part Strickland standard).
Counsel Sigel’s failure to timely object to the speculative extraneous
testimony was due to the fact that he had not properly investigated and reasonably
prepared for trial in Applicant’s case and was not aware of the issues with the
statement before the evidence was elicited by the State, and admitted in front of the
jury, at trial. See Trial Court’s Findings of Fact and Conclusions of Law. Assuming
arguendo that Counsel Sigel did intentionally let the speculative extraneous
testimony in to pursue the whole truth and to let every single piece of evidence in
as part of his “nickel defense,” that was not a reasonable or effective trial strategy
37
in Applicant’s case. Id. There is absolutely no plausible basis for the stated strategy
or tactics of Counsel Sigel’s failure to timely object to the admission of the
speculative extraneous testimony. Id. Counsel Sigel’s failure to timely object to the
admission of the speculative extraneous testimony constituted deficient
performance. Counsel Sigel’s failure to timely object to the speculative extraneous
testimony was not consistent with and did not advance Applicant’s defensive
strategy of mitigation. Id.
The admission of the speculative extraneous testimony invited the State to
argue that the jury should fear Applicant and that he was more dangerous because
he was going to commit future crimes while dressed as a police officer making him
even harder to recognize as a criminal. See Applicant’s Writ Exhibit 5; Id. The
admission of the speculative extraneous testimony reinforced the State’s theory
that Applicant was a dangerous, unremorseful, privileged athlete from a good
family who had every advantage, was so poorly regarded that he didn’t have
anyone who recently had contact with him who was willing to testify to anything
good about his character, and didn’t deserve leniency from the jury. See Applicant’s
Writ Exhibit 5; Id.
Applicant has shown that, but for trial counsel’s failure to properly object to
speculative testimony that Applicant was in possession of the identification of a
police officer because he was planning to use it to commit other crimes while
38
impersonating a police officer, the result of the punishment proceeding would have
been different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington,
466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.
App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840
S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland
standard).
(f) Counsel Sigel Elicited Harmful and Aggravating Testimony from
Witnesses that the State Did Not Elicit and Therefore Would Not Have
Otherwise Been Presented to the Jury
Counsel Sigel elicited the following harmful and aggravating testimony on
cross-examination of State’s witnesses, Counsel Sigel: (a) repeatedly led witness
Chatham to tell the jury that Applicant could not have known that Chatham was
out of town at the time of the burglary – in spite of the fact that all the burglaries
were committed intentionally when no one was home and no one was harmed was
strongly mitigating for Applicant; (b) elicited testimony from Detective Travis
showing that Applicant’s paperwork from a previous probation was found mixed in
amongst the stolen items in the car he was arrested in – due to counsel’s utter lack
of investigation and erroneous belief that there was no actual link between
Applicant and the stolen items inside of the car; (c) elicited testimony from Officer
Johnson regarding Applicant’s possession of Viagra, a drug known to be
39
synonymous with increased sexual performance, in addition to methamphetamine
when Applicant was arrested sweaty and running through an apartment complex –
when there had been no implication of crimes of a sexual nature in these offenses
before this testimony; (d) asked open-ended questions to Detective Solis, the lead
investigator for the case, inviting him to speculate that the reason Applicant stole
women’s underwear was to intimidate witnesses; that the reason Applicant would
stay at the crime scenes and eat and drink was that he was not scared of the small
female victims coming home early and that, had they come home, Applicant surely
would have harmed them; and that the reason there were no fingerprints in any of
the homes burglarized was because of the stockpile of gloves officers found in the
possession of Applicant; (e) identified Applicant as person who committed
burglary – even though witness Scialo previously testified she could not identify
applicant in a line-up as the burglar in the crime she witnessed; and (f) elicited
testimony that the vehicle Applicant was arrested in, full of stolen items, belonged
to Applicant’s brother Grayson – inviting the State to further advance theory that
Grayson, who counsel did not investigate or call the testify, was the victim of
Applicant’s most egregious crime. See Applicant’s Writ Exhibits 8, 9, 10, 11, 12,
13.
Counsel Sigel’s assertion at the writ hearing that he may have known about
this harmful and aggravating testimony that he was eliciting on cross-examination
40
of State’s witnesses before the trial began is not credible or reliable. See Writ
Hearing R.R. at 41-52; Trial Court’s Findings of Fact and Conclusions of Law.
Counsel Sigel’s assertions that he intentionally elicited this harmful and
aggravating testimony on cross-examination of State’s witnesses to pursue the
whole truth and to let every single piece of evidence in as part of his “nickel
defense,” are not credible or reliable. See Writ Hearing R.R. at 49; Id.
Ms. Lambert stated that she thoroughly reviewed all of the discovery
materials in Applicant’s case and would not have elicited the harmful and
aggravating nature of this elicited testimony. See Applicant’s Writ Exhibit 3; Writ
Hearing R.R. at 148. Ms. Lambert stated that Counsel Sigel elicited this testimony
and that eliciting this testimony did not advance Counsel Sigel’s sworn trial
strategy of mitigation. See Applicant’s Writ Exhibit 3.
Counsel Sigel conducted ineffective cross-examination of State’s witnesses
when he bolstered, rather than challenged, the prosecution witnesses by eliciting
and emphasizing harmful and aggravating evidence against Applicant. See
Hutchinson v. State, 663 S.W.2d 610 (Tex. App.—Houston [1st Dist.] 1983, pet.
ref’d); Ex Parte Walker, 777 S.W.2d 427 (Tex. Crim. App. 1989). Counsel Sigel
conducted ineffective cross-examination of State’s witnesses when he elicited
harmful and aggravating testimony including extraneous offenses in questioning
witnesses. See Hutchinson v. State, 663 S.W.2d 610 (Tex. App.—Houston [1st
41
Dist.] 1983, pet. ref’d); Ex Parte Walker, 777 S.W.2d 427 (Tex. Crim. App. 1989);
Montez v. State, 824 S.W.2d 308 (Tex. App.—San Antonio 1992, no pet.).
Counsel did not and could not make a sound strategic decision to elicit harmful and
aggravating testimony on cross-examination of State’s witnesses because he failed
to properly investigate and prepare for trial. See Ex Parte Wellborn, 785 S.W.2d
391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App.
1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy,
607 S.W.2d 507 (Tex. Crim. App. 1980). There is absolutely no plausible basis in
the strategy or tactic of Counsel Sigel’s eliciting harmful and aggravating
testimony on cross-examination of State’s witnesses. Ex parte Ewing, 570 S.W.2d
941, 945 (Tex. Crim. App. 1978). Counsel did not and could not make a sound
strategic decision to advancement of unreasonable strategies in front of the jury
because he failed to properly investigate and prepare for trial. See Ex Parte
Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d
943 (Tex. Crim. App. 1982); Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App.
1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980).
Counsel Sigel’s elicitation of this harmful and aggravating testimony on
cross-examination of State’s witnesses was due to the fact that he had not properly
investigated and reasonably prepared for the trial in Applicant’s case and was not
aware of the harmful and aggravating nature of the elicited testimony before he
42
asked the questions, and the evidence was admitted in front of the jury, at trial. See
Trial Court’s Findings of Fact and Conclusions of Law. Assuming arguendo that
Counsel Sigel did intentionally elicit this harmful and aggravating testimony to
pursue the whole truth and to let every single piece of evidence in as part of his
“nickel defense,” that was not a reasonable or effective trial strategy in Applicant’s
case. Id. There is absolutely no plausible basis for the stated strategy or tactics of
Counsel Sigel’s elicitation of this harmful and aggravating testimony. Id.
Counsel Sigel elicitation of this harmful and aggravating testimony on cross-
examination of State’s witnesses constituted deficient performance. Id. Counsel
Sigel’s elicitation of this harmful and aggravating testimony was not consistent
with and did not advance Applicant’s defensive strategy of mitigation. Id. The
admission of this harmful and aggravating testimony invited the State to argue to
start their punishment deliberations at a life sentence, the top of the range of
punishment, and “take off five” from the life sentence for every good thing they
had heard about Applicant from the evidence introduced at trial. See Applicant’s
Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law. The
admission of this harmful and aggravating evidence reinforced the State’s theory
that Applicant was a dangerous, unremorseful, privileged athlete from a good
family who had every advantage, was so poorly regarded that he didn’t have
anyone who recently had contact with him who was willing to testify to anything
43
good about his character, and didn’t deserve leniency from the jury. See
Applicant’s Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of
Law.
Applicant has shown that, but for trial counsel’s eliciting harmful and
aggravating testimony from witnesses that would not have otherwise been
presented to the jury, the result of the punishment proceeding would have been
different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466
U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.
1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840
S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland
standard).
(g) Counsel Sigel Failed to Properly Investigate Applicant’s Case and
Properly Prepare for Trial, Resulting in Counsel Employing and Advancing
Numerous Unreasonable Trial Strategies in Front of the Jury
Counsel Sigel advanced the following unreasonable strategies in front of the
jury, Counsel Sigel: (a) asserted to the jury that voluntary intoxication is by itself
legally mitigating under existing Texas law and asked for a jury instruction so
stating – without ever attempting to allege or prove insanity; (b) questioned many
witnesses, and called defense mitigation witnesses, in a way that clearly advanced
the State’s theory that Applicant was a remorseless, privileged athlete from a good
44
family who had every advantage and did not deserve leniency; (c) harassed and
humiliated witness Aurora Gonzales by making her state her bra size in front of the
jury and court, when this was not a contested issue of any kind at Applicant’s trial;
(d) failed to make any opening statement in punishment of Applicant’s trial,
leaving the State’s opening claims wholly unanswered, after telling the jury that he
would make an opening at the beginning of the defense’s case; (e) tormented
witness Haddad by making her recount the specific metals her deceased fiancé was
awarded in his service in Iraq when this was not a contested issue of any kind at
Applicant’s trial, causing her to become emotional in front of the jury and making
her even more sympathetic. See Applicant’s Writ Exhibits 15, 16, 17, 18, 19.
Counsel Sigel’s assertions that he intentionally employed these unreasonable
strategies to pursue the truth and to let every single piece of evidence in as part of
his “nickel defense,” are not credible or reliable. See Writ Hearing R.R. at 53-62;
Trial Court’s Findings of Fact and Conclusions of Law.
Ms. Lambert stated that she would not have utilized these unreasonable trial
strategies that Counsel Sigel employed in Applicant’s case. See Applicant’s Writ
Exhibit 3; Writ Hearing R.R. at 129-132. Ms. Lambert states that Counsel Sigel
employed these unreasonable strategies and that their employment did not advance
Counsel Sigel’s apparent trial strategy of mitigation. See Applicant’s Writ Exhibit
3; Writ Hearing R.R. at 129-132.
45
There is absolutely no plausible basis in the strategy or tactic of Counsel
Sigel’s advancement of unreasonable strategies in front of the jury. Ex parte
Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant has shown that,
but for trial counsel’s advancement of unreasonable strategies in front of the jury,
the result of the punishment proceeding would have been different. See Ex Parte
Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the
Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.
Crim. App. 1992) (defining the two-part Strickland standard).
Counsel Sigel’s advanced the unreasonable strategies in front of the jury due
to the fact that he had not properly investigated and reasonably prepared for the
trial in Applicant’s case and was not aware of the harmful and aggravating nature
of the unreasonable strategies before he advanced them, and the evidence was
admitted in front of the jury, at trial. See Trial Court’s Findings of Fact and
Conclusions of Law. Assuming arguendo that Counsel Sigel did intentionally
advance the unreasonable strategies to “pursue the truth” and to let every single
piece of evidence in as part of his “nickel defense,” his actions were not reasonable
or effective trial strategy in Applicant’s case. Id. There is absolutely no plausible
basis for Counsel Sigel’s advancement of these unreasonable strategies. Id.
Counsel Sigel’s advancement of these unreasonable strategies in front of the jury
46
constituted deficient performance. Id. Counsel Sigel’s advancement of these
unreasonable strategies was not consistent with and did not advance Counsel
Sigel’s apparent defensive strategy of mitigation. Id.
The advancement of these unreasonable strategies invited the State to argue
to start their punishment deliberations at a life sentence, the top of the range of
punishment, and “take off five” from the life sentence for every good thing they
had heard about Applicant from the evidence introduced at trial. See Applicant’s
Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law. Counsel
Sigel’s advancement of these unreasonable strategies harmed Counsel Sigel’s
apparent trial strategy of mitigation, caused Applicant to lose credibility with the
jury, harassed witnesses, and alienated the jury. Id. Counsel Sigel’s advancement
of these unreasonable strategies reinforced the State’s theory that Applicant was a
dangerous, unremorseful, privileged athlete from a good family who had every
advantage, was so poorly regarded that he didn’t have anyone who recently had
contact with him who was willing to testify to anything good about his character,
and didn’t deserve leniency from the jury. See Applicant’s Writ Exhibit 5;Trial
Court’s Findings of Fact and Conclusions of Law.
Applicant has shown that, but for trial counsel’s failure to properly
investigate Applicant’s case and properly prepare for trial that resulted in counsel
employing and advancing numerous unreasonable trial strategies, the result of the
47
punishment proceeding would have been different. See Ex Parte Cash, 178 S.W.3d
816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State,
726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland standard in
Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992)
(defining the two-part Strickland standard).
(h) Counsel Sigel Failed to Investigate or Prepare the Defense’s Six Lay
Punishment Mitigation Witnesses and Had Ms. Lambert Leave the
Courtroom During Trial to Attempt to Quickly Conduct the Only
Preparation Ever Done with the Witnesses
Counsel Sigel failed to investigate or properly prepare the defense’s six lay
punishment mitigation witnesses before Applicant’s trial. See Applicant’s Jury
Trial XIII R.R. at 16-36; XIV R.R. at 2-40; Trial Court’s Findings of Fact and
Conclusions of Law. Counsel Sigel’s assertions that he may have spoken with and
prepared the lay punishment mitigation witnesses by intentionally only advising
them to tell the truth are not credible or reliable. See Writ Hearing R.R. at 16-17,
27-28; Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel
admitted that he doesn’t always believe in interviewing and preparing character
witnesses to testify before calling them to the stand to testify. See Writ Hearing
R.R. at 99. Counsel Sigel admitted that sometimes he prepares witnesses regarding
48
what to expect on cross-examination and sometimes he does not. See Writ Hearing
R.R. at 28.
Ms. Lambert stated that Counsel Sigel never identified the lay witnesses to
her or asked her to contact, prepare, or present any lay witnesses before
Applicant’s trial. See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 111. Ms.
Lambert stated that she became concerned with Counsel Sigel’s abilities during
trial and decided to interview and prepare the mitigation witnesses who were
present, who Counsel Sigel had failed to prepare, to testify during trial itself in an
attempt to protect Applicant’s rights. See Applicant’s Writ Exhibit 3; Writ Hearing
R.R. at 132-133. Ms. Lambert stated that she was unable to adequately prepare the
witnesses to testify in the short time she had to speak with them in the hallway. See
Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 132-135. Ms. Lambert stated that
Counsel Sigel’s failure to investigate and properly prepare these witnesses did not
advance Counsel Sigel’s apparent trial strategy of mitigation. See Applicant’s Writ
Exhibit 3; Writ Hearing R.R. at 132-135.
Counsel Sigel failed to adequately prepare the mitigation witnesses to testify
at trial. Ex Parte Guzmon, 730 S.W.2d 724 (Tex. Crim. App. 1987). Counsel did
not and could not make a sound strategic decision not to adequately prepare the
mitigation witnesses to testify at trial because he failed to properly investigate and
prepare for trial. See Ex Parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990);
49
Ex parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App. 1982); Ex parte Raborn, 658
S.W.2d 602 (Tex. Crim. App. 1983); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim.
App. 1980). There is absolutely no plausible basis in the strategy or tactic of
Counsel Sigel’s failure to adequately prepare the mitigation witnesses to testify at
trial. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978). Applicant
has shown that, but for trial counsel’s failure to adequately prepare the mitigation
witnesses to testify at trial, the result of the punishment proceeding would have
been different. See Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v.
Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57
(Tex. Crim. App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v.
State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part
Strickland standard).
Counsel Sigel’s failure to investigate and properly prepare the lay witnesses
was due to the fact that he had not properly investigated and reasonably prepared
for the trial in Applicant’s case and was not aware of what the witnesses knew or
would say before they took the stand and the evidence was admitted in front of the
jury at trial. See Trial Court’s Findings of Fact and Conclusions of Law. Assuming
arguendo that Counsel Sigel did intentionally only prepare the witnesses by
advising them to tell the truth to advance the unreasonable strategies to “pursue the
50
truth” and to let every single piece of evidence in as part of his “nickel defense,”
his actions were not reasonable or effective trial strategy in Applicant’s case. Id.
There is absolutely no plausible basis for the stated strategy or tactics of
Counsel Sigel’s failure to investigate and properly prepare the lay mitigation
witnesses. Id. Counsel Sigel failure to investigate or properly prepare the defense’s
six lay punishment mitigation witnesses in any manner before Applicant’s trial
constituted deficient performance. Id. Counsel Sigel’s failure to investigate and
properly prepare the lay mitigation witnesses was not consistent with and did not
advance Applicant’s defensive strategy of mitigation. Id. Counsel Sigel’s failure to
investigate and properly prepare the lay mitigation witnesses allowed the State to
bring out on cross examination that none of the witnesses were familiar with the
circumstances of the crimes Applicant had been convicted of and that witness
Schechter had not been close with Applicant in many years, witness Morrow had
not been close with Applicant in many years, and even Applicant’s own father had
only talked to him on the phone and seen him once or twice a year in the last ten
years. See Applicant’s Jury Trial XIII R.R. at 16-37; XIV R.R. at 2-40. Counsel
Sigel’s failure to investigate and properly prepare the lay mitigation witnesses
invited the State to argue that Applicant was trying to manipulate the jury into
showing mercy that he did not deserve by calling powerful politicians and that the
defense mitigation witnesses were worthless because, “(t)hey want to awe you with
51
the title of these people so that you will look past what they were really telling you
when none of them have had any kind of quality interaction with him for the last
five years.” See Applicant’s Writ Exhibit 5; Trial Court’s Findings of Fact and
Conclusions of Law.
Counsel Sigel’s failure to investigate and properly prepare the lay
mitigation witnesses harmed Counsel Sigel’s apparent trial strategy of mitigation,
caused Applicant to lose credibility with the jury, and left witnesses not properly
prepared to testify on direct and cross-examination. See Applicant’s Jury Trial XIII
R.R. at 16-37; XIV R.R. at 2-40; Trial Court’s Findings of Fact and Conclusions of
Law. Counsel Sigel’s failure to investigate and properly prepare the lay mitigation
witnesses invited the State to elicit testimony detrimental to Applicant from wholly
unprepared witnesses. See Applicant’s Jury Trial R.R. XIII R.R. at 16-37; XIV R.R.
at 2-40;Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel’s
failure to investigate and properly prepare the lay mitigation witnesses reinforced
the State’s theory that Applicant was a dangerous, unremorseful, privileged athlete
from a good family who had every advantage, was so poorly regarded that he
didn’t have anyone who recently had contact with him who was willing to testify
to anything good about his character, and didn’t deserve leniency from the jury.
See Applicant’s Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of
Law.
52
Applicant has shown that, but for trial counsel’s failure to properly
investigate and prepare the Defense’s six lay punishment witnesses, the result of
the punishment proceeding would have been different. See Ex Parte Cash, 178
S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez
v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland
standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App.
1992) (defining the two-part Strickland standard).
(i) Counsel Sigel Failed to Investigate and Call Witnesses Grayson West,
Brandon West, and Danielle Delgadillo
Counsel Sigel failed to investigate and call witnesses Grayson West,
Brandon West and Danielle Delgadillo. See Writ Hearing R.R. at 16-30. The
affidavits of Grayson West, Brandon West, and Danielle Delgadillo are credible
and reliable. See Applicant’s Writ Exhibits 20, 21, 22; Trial Court’s Findings of
Fact and Conclusions of Law. Grayson West and Brandon West are Applicant’s
brothers and Danielle Delgadillo is Applicant’s childhood friend and all three
remained in close contact with Applicant throughout the time surrounding the
offenses and the trial. See Applicant’s Writ Exhibits 20, 21, 22. Grayson West,
Brandon West, and Danielle Delgadillo were willing and available to testify in
Applicant’s trial, both Grayson and Brandon were present in the courtroom during
trial, but that they were never contacted, interviewed, designated as witnesses, or
53
called to the stand by Counsel Sigel in any manner. See Applicant’s Writ Exhibits
20, 21, 22; Writ Hearing R.R. at 16-30; Trial Court’s Findings of Fact and
Conclusions of Law. Grayson West, Brandon West, and Danielle Delgadillo had
ongoing, meaningful, close personal relationships with Applicant and would have
offered testimony that would have humanized him for the jury. See Applicant’s
Writ Exhibits 3, 20, 21, 22; Trial Court’s Findings of Fact and Conclusions of
Law.
Counsel Sigel admitted that he did not know at the time of Applicant’s trial
that any witnesses existed who had ongoing, meaningful, close personal
relationships with Applicant and would have humanized him for the jury by
offering testimony that Applicant was off drugs and getting back to his true self.
See Writ Hearing R.R. at 25. Counsel Sigel admitted that he was not aware that
Grayson West had battled drug addiction throughout his life in much the same
manner as Applicant. See Writ Hearing R.R. at 27. Counsel Sigel admitted that the
reason that the jury sentenced Applicant to so much time was because “the jury
just didn’t know Damon West” at the end of the defense’s mitigation evidence. See
Writ Hearing Exhibit 25 at 75-76; Trial Court’s Findings of Fact and Conclusions
of Law.
Grayson West, Brandon West, and Danielle Delgadillo would have each
testified to a high number of facts, each of which the jury could have counted as a
54
“good thing,” about Applicant and used to take 5 years off of his sentence. See
Applicant’s Writ Exhibits 20, 21, 22; Applicant’s Writ Exhibit 5; Trial Court’s
Findings of Fact and Conclusions of Law. The testimony of Grayson West,
Brandon West, and Danielle Delgadillo would have advanced Counsel Sigel’s
apparent strategy of mitigation. See Applicant’s Writ Exhibit 3; Writ Hearing R.R.
at 136-137; Trial Court’s Findings of Fact and Conclusions of Law.
Ms. Lambert reviewed the three witnesses’ affidavits and stated that Counsel
Sigel never asked her to contact, prepare, or present any lay witnesses. See
Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 137. Ms. Lambert stated that
Counsel Sigel did not call the three, above listed, witnesses and that she believes
that they could have been helpful in humanizing Applicant and in providing insight
into the defense’s mitigation evidence. See Applicant’s Writ Exhibit 3; Writ
Hearing R.R. at 137. Ms. Lambert stated that the decision to not interview and call
these witnesses was made by Counsel Sigel without consulting her and that the
failure to call the witnesses did not advance Counsel Sigel’s sworn trial strategy of
mitigation. See Exhibit 3; Writ Hearing R.R. at 137.
Counsel Sigel’s assertions that he had not investigated and called the three
mitigation witnesses to testify because Applicant did not testify are not credible or
reliable. See Writ Hearing R.R. at 22, 24; Trial Court’s Findings of Fact and
Conclusions of Law. Counsel Sigel’s assertions that he strongly advised and
55
repeatedly requested that Applicant testify at his trial are not credible or reliable.
See Applicant’s Writ Exhibit 3; Writ Hearing R.R. at 87, 92, 141-142, 144-145,
147-148;Trial Court’s Findings of Fact and Conclusions of Law. Counsel Sigel
stated that when he allegedly spoke to Applicant about possibly testifying he did
not believe that Applicant understood what he was saying to him at that time. See
Writ Hearing R.R. at 18-19, 87-88; Trial Court’s Findings of Fact and
Conclusions of Law. Counsel Sigel admitted that Ms. Lambert was sitting next to,
and present with, Applicant during the entire trial. See Writ Hearing R.R. at 39.
Ms. Lambert stated that though she was present for all of the conversations
between Counsel Sigel and Applicant at trial that she never once heard Counsel
Sigel advise, ask, or beg Applicant to testify at his trial. See Applicant’s Writ
Exhibit 3; Writ Hearing R.R. at 144-145, 147-148. Ms. Lambert was not aware of
or present for any efforts on Mr. Sigel’s part to prepare Applicant to testify at trial
in any manner. See Writ Hearing R.R. at 144-145, 147-148. Ms. Lambert stated
that it is not a reasonable or good strategy for Counsel Sigel to have not called
these three mitigation witnesses in Applicant’s trial because Applicant did not
testify. See Writ Hearing R.R. at 153-154. Ms. Lambert stated that she believed
that there was a chance that the jury would have given Applicant probation based
on his possible mitigation presentation. Writ Hearing R.R. at 149-150.
56
Counsel did not and could not make a sound strategic decision to not call
Brandon West, Grayson West, and Danielle Degadillo because he failed to
investigate and interview the witnesses. See Wiggins v. Smith, 539 U.S. 510
(2003); Milburn v. State, 15 S.W.3d 267 (Tex. App. – Houston [14th Dist.] 2000,
pet. ref’d.). There is absolutely no plausible basis in the strategy or tactic of
Counsel Sigel’s failure to investigate and call mitigation witnesses Brandon West,
Grayson West, and Danielle Degadillo. Ex parte Ewing, 570 S.W.2d 941, 945
(Tex. Crim. App. 1978). The testimony of Brandon West, Grayson West, and
Danielle Degadillo was admissible and would have provided some counterweight
to evidence of bad character which was in fact received by the jury. See Blake v.
Kemp, 758 F.2d 523, 535 (11 th Cir.1985), cert. denied, 474 U.S. 998, 106 S. Ct.
374, 88 L. Ed. 2d 367 (1985). The jury would have considered the testimony of
Brandon West, Grayson West, and Danielle Degadillo and possibly been
influenced by it. See Milburn v. State, 15 S.W.3d 267 (Tex. App. – Houston [14th
Dist.] 2000, pet. ref’d.); Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983).
Applicant has shown that, but for Counsel Sigel’s failure to investigate and call
mitigation witnesses Brandon West, Grayson West, and Danielle Degadillo there is
a reasonable probability that the result of the punishment proceeding would have
been different. Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington,
466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.
57
Ohio App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840
S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland
standard).
Counsel Sigel’s failure to investigate and call the three witnesses was due to
the fact that he had not properly investigated and reasonably prepared for the trial
in Applicant’s case and was not aware of what the witnesses knew or would say if
they took the stand. See Trial Court’s Findings of Fact and Conclusions of Law.
Assuming arguendo that Counsel Sigel did intentionally decide to not call the three
witnesses because the Applicant was not going to testify, his actions were not
reasonable or effective trial strategy in Applicant’s case. Id. There is absolutely no
plausible basis for the stated strategy or tactic of Counsel Sigel’s failure to
investigate and call the three mitigation witnesses. Id.
Counsel Sigel’s failure to investigate and call the three mitigation witnesses
to testify in Applicant’s case constituted deficient performance. Id. Counsel Sigel’s
failure to investigate and call the three mitigation witnesses was not consistent with
and did not advance Applicant’s defensive strategy of mitigation. Id. Counsel
Sigel’s failure to investigate and call the three mitigation witnesses resulted in
Counsel Sigel only calling witnesses who had not had any truly meaningful contact
with Applicant in the years around the offenses, were high-profile political
contacts of Applicant’s father who had not spoken to Applicant in years, and who
58
knew nothing current about Applicant. See Applicant’s Writ Exhibit 5; Applicant’s
Jury Trial XIII R.R. at 16-37; XIV R.R. at 2-40; Trial Court’s Findings of Fact and
Conclusions of Law.
Counsel Sigel’s failure to investigate and call the three mitigation witnesses
invited the State to argue that Applicant was trying to manipulate the jury into
showing mercy that he did not deserve by calling powerful politicians and that the
defense mitigation witnesses were worthless because, “(t)hey want to awe you with
the title of these people so that you will look past what they were really telling you
when none of them have had any kind of quality interaction with him for the last
five years.” See Applicant’s Writ Exhibit 5. Counsel Sigel’s failure to investigate
and call the three mitigation witnesses invited the State to argue the jury should
start their punishment deliberations at a life sentence, the top of the range of
punishment, and “take off five” from the life sentence for every good thing they
had heard about Applicant from the evidence introduced at trial. See Applicant’s
Writ Exhibit 5; Trial Court’s Findings of Fact and Conclusions of Law.
Counsel Sigel’s failure to investigate and call the three mitigation witnesses
reinforced the State’s theory that Applicant’s recorded phone calls were an
accurate reflection of his true evil personality, that his brothers were angry with
him, that they (especially baby brother Grayson) should be counted by the jury as
victims of his most egregious crimes, and that Applicant had no empathy for
59
anyone including his own brothers. See Applicant’s Writ Exhibit 5. Counsel
Sigel’s failure to investigate and call the three mitigation witnesses reinforced the
State’s theory that Applicant was a dangerous, unremorseful, privileged athlete
from a good family who had every advantage, was so poorly regarded that he
didn’t have anyone who recently had contact with him who was willing to testify
to anything good about his character, and didn’t deserve leniency from the jury.
See Trial Court’s Findings of Fact and Conclusions of Law.
Had Counsel Sigel properly investigated and called the three mitigation
witnesses they would have testified to numerous “good things” about Applicant
(included in their affidavits attached to Applicant’s writ as Exhibits 20, 21, and
22), the jury would have bee able to use them to follow the State’s direction and
“take off five” for every good thing they heard about Applicant, and sentence
Applicant to a lower number of years in prison. Glover v. United States, 531 U.S.
198, 203, 121 S. Ct. 696, 700, 148 L. Ed. 2d 604 (2001). The affidavits include
numerous “good thing(s)” which would have resulted in a reduction in prison time
of five years each. Id. Applicant has shown that, but for trial counsel’s failure to
properly investigate call witnesses Grayson West, Brandon West, and Danielle
Delgadillo, the result of the punishment proceeding would have been different. See
Ex Parte Cash, 178 S.W.3d 816, 818; Strickland v. Washington, 466 U.S. 668, 686
(1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting
60
the Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.
Crim. App. 1992) (defining the two-part Strickland standard).
(j) Totality of Counsel Sigel’s Representation of Applicant
The totality of Counsel Sigel’s representation of Applicant fell below the
objective standard of reasonableness and was therefore deficient. See Trial Court’s
Findings of Fact and Conclusions of Law. But for Counsel Sigel’s errors, there is a
reasonable probability that Applicant would have been sentenced to less than sixty-
five (65) years in the Texas Department of Criminal Justice in the primary case.
Applicant’s sixty-five (65) year sentence is not worthy of confidence. Id. Counsel
Sigel was not functioning as counsel as guaranteed by the United States Constitution
and Counsel Sigel’s deficient performance prejudiced Applicant. Id. Applicant has
met his burden of proving by a preponderance of the evidence that he was denied the
effective assistance of counsel in the punishment trial of this case. Id.
Applicant has shown that Counsel Sigel acted in a deficient manner which
resulted in prejudice in the punishment trial in his case. Strickland v. Washington,
466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.
1986) (adopting the Strickland standard in Texas); Narvaiz v. State, 840 S.W.2d
415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland standard); and
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) (adopting the two-
part Strickland standard for evaluating ineffective assistance of counsel at the
61
punishment stage of noncapital trials).
The totality of the representation afforded to Applicant was not sufficient to
protect his right to reasonably effective assistance of counsel. See Trial Court’s
Findings of Fact and Conclusions of Law. Applicant has succeeded in
demonstrating that he has been prejudiced by counsel’s deficient actions because
they resulted in Applicant being sentenced to an additional amount of time in
prison. Glover v. United States, 531 U.S. 198, 203, 121 S. Ct. 696, 700, 148
L. Ed. 2d 604 (2001). In all things Applicant has succeeded in demonstrating that
his sentence was improperly obtained and that he is being improperly confined.
The Applicant has proven, by a preponderance of evidence, that trial
counsel’s deficient performance, should undermine any confidence this Court
could have in the verdict. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984). The Applicant requests that this Court exercise
its authority to adopt the Trial Court’s findings and conclusions, and find that trial
counsel’s performance was deficient and that the prejudice prong of Strickland in
this regard has been satisfied.
PRAYER
For the reasons stated above, as well as for those reasons stated previously,
the Applicant pays that this Court GRANT relief in the form of A NEW
PUNISHMENT TRIAL.
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Respectfully submitted,
/s/ Chip B. Lewis
CHIP LEWIS
State Bar of Texas Number 00791107
ALICIA DEVOY ONEILL
State Bar of Texas Number 24040801
1207 South Shepherd Drive
Houston, Texas 77019
(713)-523-7878
(713)-523-7887 (FAX)
ATTORNEY FOR APPLICANT
CERTIFICATE OF SERVICE
I certify that I provided a copy of the foregoing brief to the Dallas County
District Attorney by mailing it to Lori Ordiway, Chief of the Appellate Division,
via first class mail and e-serving on the day the brief was e-filed.
/s/ Chip B. Lewis
Chip B. Lewis
63
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i):
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this
brief contains 14,087 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced typeface using Times New
Roman 14 point font in text and Time New Roman 12 point font in footnotes.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R.
App. Proc. 9.4(j), may result in the Court's striking this brief and imposing
sanctions against the person who signed it.
/s/ Chip B. Lewis
Chip B. Lewis
64
APPENDIX
Order Appointing April Smith..................................................................................A
Motion to Recuse, Order of Recusal, and Order of Assignment .............................. B
Trial Court’s Proposed Findings of Fact and Conculsion of Law ............................ C
65
A
B
C