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Applicant:
Bartholomew Granger
Respondent:
i
STATEMENT REGARDING ORAL ARGUMENT
Counsel for Bartholomew Granger herby requests oral argument pursuant to
argument will aid the Courts decisional process due to the length of the record and
because this case presents novel questions important to the jurisprudence of this
state:
QUESTIONS PRESENTED
I. Is deference to a trial courts findings and conclusions warranted where the
trial court employed no fact-finding procedure despite the existence of
numerous disputed issues of material fact evident from the face of the
pleadings?
ii
TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................. i
Introduction ................................................................................................................1
Statement of the Case.................................................................................................3
iii
improper reference to Mr. Granger as a murdering son of
a bitch and other improprieties. ....................................24
4. The trial court could not assess whether Mr. Granger was
prejudiced by trial counsels numerous deficiencies
without first resolving all issues of disputed fact regarding
trial counsels deficient performanceand that was not
done.................................................................................27
iv
E. In Its Eagerness to Deny Relief to Mr. Granger, the Trial Court
Made Numerous Mistakes of Fact and Law. ............................41
v
TABLE OF AUTHORITIES
Federal
Anderson v. Bessemer City, 470 U.S. 564 (1985)....................................................32
Armstrong v. Manzo, 380 U.S. 545 (1965) ................................................. 37, 45, 46
Brady v. Maryland, 373 U.S. 83 (1963) ........................................................... 17, 28
Ford v. Wainwright, 477 U.S. 399 (1986) ........................................................ 45, 46
Goldberg v. Kelly, 397 U.S. 254 (1970) ........................................................... 37, 46
Grannis v. Ordean, 234 U.S. 385 (1914).................................................................46
Harmelin v. Michigan, 501 U.S. 957 (1991) ...........................................................52
In re Oliver, 333 U.S. 257 (1948) ............................................................................48
Jefferson v. Upton, 560 U.S. 284 (2010) .................................................................32
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)...........................................................45
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996).........................................................44
Morgan v. United States, 298 U.S. 468 (1936)........................................................46
Panetti v. Quarterman, 551 U.S. 930 (2007)...........................................................45
Solesbee v. Balkcom, 339 U.S. 9 (1950) ..................................................................47
Strickland v. Washington, 466 U.S. 668 (1984) ......................................................26
Townsend v. Sain, 372 U.S. 293 (1963)...................................................... 44, 46, 47
United States v. Bagley, 473 U.S. 667 (1985) .........................................................28
Wiggins v. Smith, 539 U.S. 510 (2003) ....................................................................21
Winston v. Kelly, 592 F.3 535 (4th Cir. 2010) .........................................................44
State
Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) .....................................47
Ex parte Armstrong, No. WR-78,106-01, 2015 WL 7354084, at *2 (Tex. Crim. App.
Nov. 18, 2015) .....................................................................................................33
vi
Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989) .................................47
Ex parte Campos, 613 S.W.2d 745 (Tex. Crim. App. 1981)...................................50
Ex parte Carnes, 579 S.W.2d 249 (Tex. Crim. App. 1979) ....................................34
Casso v. Brand, 776 S.W.2d 551 (Tex. 1989) .........................................................40
Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004) .............................. 39, 40
Coleman v. State, 246 S.W.3d 76 (Tex. Crim. App. 2008) .......................................8
Ex parte Davila, 530 S.W.2d 543 (Tex. Crim. App. 1975) .............................. 12, 47
Ex parte Empey, 757 S.W.2d 771 (Tex. Crim. App. 1988) .............................. 37, 49
Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998) ............................... 37, 49
Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994).....................................25
Ex parte Jarrett, 891 S.W.2d 935 (Tex. Crim. App. 1994) .....................................49
Ex parte Karlson, 282 S.W.3d 118 (Tex Ct. App.Ft. Worth 2009).....................35
Ex parte Kerr, 64 S.W.3d 414 (Tex. Crim. App. 2002) ................................... 11, 52
Manzi v. State, 88 S.W.3d 240 (Tex. Crim. App. 2002)..........................................38
Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011) ...................... 33, 34, 52
Ex parte Newby, No. WR-64060-01, 2006 WL 1173422 (Tex. Crim. App. May 3,
2006) ....................................................................................................................35
Ex parte Ramirez, No. WR-64076-01, 2006 WL 1173437 (Tex. Crim. App. May 3,
2006) ....................................................................................................................35
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) ........................................32
Rouse v. State, 300 S.W.3d 754 (Tex. Crim. App. 2009) ........................................34
Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).......................................49
vii
TEX. R. CIV. PROC. 166a...........................................................................................39
Other Authorities
ABA, Supplementary Guidelines for the Mitigation Function of Defense Teams in
Death Penalty Cases, 36 HOFSTRA L. REV. (2008) .............................................20
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, 31 HOFSTRA L. REV. 913 (2003) .................................................24
State Bar of Tex., Supplementary Guidelines and Standards for the Mitigation
Function of Defense Teams in Texas Death Penalty Cases, 78 TEX. B.J. (July
2015) ....................................................................................................................20
viii
INTRODUCTION
The process that Mr. Granger has received thus far has been an object lesson
murdering son of a bitch. Such invective out of the mouth of the States advocate
is prejudicial error. Yet Mr. Grangers deficient appointed trial counsel failed to
object at the time. When the issue was raised on direct appeal, this Court overruled
the point of error because the deficient trial counsel had failed to preserve it. The
State then argued in this habeas proceeding that the issuejust one of numerous
could be ignored because it should have been raised on direct appeal and wasnt
(although it was). Then the trial court adopted this inaccurate finding wholesale
along with the rest of the States flawed proposalbefore undertaking any fact-
Moreover, this case, in which Mr. Granger has been repeatedly denied due
process, should strike the Court as a terrifying parody of Groundhog Day.1 Not long
ago, the writ application was remanded to the trial court so that it might try again
1
See https://en.wikipedia.org/wiki/Groundhog_Day_(film) (describing the 1993
film in which an arrogant weatherman is stuck in a time loop such that he is forced
to repeat the same day over and over again until he finally takes stock of his life).
1
Specifically, the judge who had presided over Mr. Grangers trial (Judge Bob
Wortham) had resigned from the bench soon afterwards to run for Jefferson County
District Attorney; in campaigning, Judge Wortham invoked the fact that he had just
overseen Mr. Grangers capital murder trial; then, once elected, DA Wortham
the proceeding over which Judge Wortham had previously presided. Not
surprisingly, DA Worthams office argued that all claims raised about the
constitutionality of the proceeding over which Judge Wortham had presided should
be rejected. And Judge Worthams successor, without resolving any of the extra-
record factual dispute, summarily agreed. After this Court remanded the habeas
proceeding so that the conflict of interest created by Judge/DA Worthams dual roles
With a remarkable display of cynicism, the State, after hiring an attorney pro
tem, filed virtually the same response to the writ application that had been filed by
DA Worthams office. But when this fact was brought to the trial courts attention,
it rejected Mr. Grangers motion to strike the States pleading and then immediately
ordered proposed findings of fact and conclusions of law (FFCL) from both sides
without first designating any of the disputed issues of material fact or permitting the
admission of any evidence to assist in resolving the numerous disputed facts evident
from the face of the pleadings. Then, shortly after those proposals were filed, the
2
trial court once again summarily adopted the States proposal wholesale in a one-
It is time for this Court to clarify that Article 11.071 means what it says.
Permitting an end run around the plain statutory text in the capital habeas context is
judgment of the 58th District Court, Jefferson County, Texas, cause number 13-
16388, which was rendered and entered on May 7, 2013. CR at 19; 29 RR at 48.2
Mr. Granger was indicted for a shooting outside the Jefferson County Courthouse
on March 14, 2012, which resulted in the tragic death of Minnie Ray Sebolt. 2 RR
On August 2, 2012, Mr. Granger was re-indicted for capital murder. 1 CR Supp. 2
2
CR refers to the Clerks Record filed on May 22, 2013, and supplemented on
June 17, 2013 (hereinafter CR Supp. 1), September 10, 2013 (hereinafter CR
Supp. 2), and May 22, 2014 (hereinafter CR Supp. 3). The original record and
first and third supplements were not divided into volumes, but the second
supplement is in three parts. RR refers to the Reporters Record.
3
at 2. James Makin was appointed as second chair counsel.3 See 3 RR at 2. Because
of an infirmity in the second indictment, on March 21, 2013, Mr. Granger was again
The guilt phase of Mr. Grangers trial began soon thereafter on April 22, 2013.
After the indictment was read, Mr. Granger pled not guilty. 18 RR at 13. The State
gave an opening statement, but the defense did not. Id. at 15-22; 23 RR at 7. The
State began its case-in-chief the same day. 18 RR at 22. The defense began the
presentation of its case and rested the same day. 23 RR at 204. The State called no
rebuttal witnesses. Id. The next day, both sides presented their closing arguments.
24 RR at 16-58. The case was submitted to the jury for determination of guilt, and
During the punishment phase, the State presented an opening statement; the
defense did not. 26 RR at 11-16; 27 RR at 6. The State presented its punishment case
on May 2, 2013, and rested at the start of the next days proceedings. 26 RR at 17-
141; 27 RR at 6. The defenses case then began and concluded the next day. 27 RR
41. Jury deliberations commenced, and, that same day, the jury returned a verdict
3
The Presiding Judge of the Second Administrative Judicial Region only added Mr.
Cribbs to the list of qualified capital counsel on August 24, 2012 after his
appointment. 1 CR Supp. 2 at 32; see also TEX. CODE CRIM. PROC. art. 26.052.
4
answering Yes to Special Issue One and No to Special Issue Two. Id. at 45-46.
Next, the Court appointed the OCFW4 to represent Mr. Granger in his post-
Procedure. Mr. Grangers Application, filed on October 28, 2014, alleged seven
(3) Mr. Granger was denied his due process right to an impartial jury because
of juror misconduct (Ground 6);
(4) Mr. Grangers rights under the Sixth, Eighth, and Fourteenth Amendments
to the U.S. Constitution were violated by the 10-12 Rule (Ground 7);
(5) Mr. Grangers death sentence was arbitrarily and capriciously assigned
based on the jurys answer to the unconstitutionally vague first special
issue (Ground 8);
(7) Mr. Grangers death sentence should be vacated because the punishment
phase jury instruction restricted the evidence that the jury could determine
was mitigating (Ground 10).
4
At that time, the agency was called the Office of Capital Writs.
5
See Initial Application. These last four claims are purely legal, thus do not raise
disputed issues of material fact that had to be resolved before the claims could be
Claims (1)-(3), however, required the resolution of factual issues and the
The State filed its first Response on February 9, 2015. The States Response
included two evidentiary proffers: an affidavit from each of Mr. Grangers trial
counsel, Messrs. Cribbs and Makin.5 The Response was prepared and submitted on
the States behalf by the Jefferson County District Attorneys office. The elected
District Attorney (DA) was Bob Wortham. However, DA Wortham had been the
presiding judge when Mr. Granger was convicted of capital murder and sentenced
to death.
5
Although Messrs. Cribbs and Makin submitted separate affidavits, those affidavits
are identical in their replies to Mr. Grangers allegations that his counsel were
ineffective. Compare Response, Ex. A with Response, Ex. B.
6
On February 23, 2015, the trial court entered an order finding that no
applicants confinement exist[ed]. The trial courts Order also required both parties
On or about February 26, 2015, Mr. Granger filed a motion with the trial court
requesting that it (1) rescind its order dated February 23, 2015; (2) designate the
Article 11.071, Section 9(a), of the Texas Code of Criminal Procedure; and (3) hold
such a hearing. The trial court denied that motion on March 2, 2015.
On March 25, 2015, Mr. Granger filed a Motion to Request Oral Argument
Concerning the Parties Proposed Findings and Conclusions, noting some of the
numerous errors in the States proposal. On March 31, 2015, the State submitted an
amended proposal, correcting a few of the errors of fact and law. The trial court then
On April 6, 2015, the trial court signed an Order adopting wholesale the
The case was then conveyed to this Court for de novo review.
While the matter was pending before this Court, concerns arose about the fact
7
the integrity of a trial over which he himself had presided. On February 24, 2016,
this Court issued an Order, granting in part a joint motion to abate the proceedings
upon finding that it was reasonable and supported by good cause. Order, WR-
83,135-01 (Feb. 24, 2016). The Courts Order emphasized that, upon remand, the
trial court should appoint an attorney pro tem who could assume all duties of the
district attorney for purposes of this habeas proceeding but would be someone who
acts independently, and, in effect replaces the district attorney. Id. at 5 (citing
Coleman v. State, 246 S.W.3d 76 (Tex. Crim. App. 2008)). The Court also ordered
that the States Response to the Initial Application be struck and the Courts FFCL
be vacated.
Upon remand, the trial court signed a series of orders: vacating the FFCL that
had been entered on April 6, 2015; striking all pleadings filed by the State on or after
January 1, 2015 in this matter, including the States original Response; and
appointing Thomas P. Roebuck to serve as Criminal District Attorney Pro Tem. The
Attorney Pro Tem was charged with starting over with preparing and filing the
States Response to Mr. Grangers Initial Application. The Attorney Pro Tem was
The Response that the Attorney Pro Tem filed on the States behalf on
8
filed on the States behalf by DA Worthams office back on February 9, 2015. The
affidavit from trial counsel James R. Makin. In the supplement, Mr. Makin makes
these new attestations: I had determined to not call Ms. Villanueva at trial as I had
family members and other lay witnesses that could address issues that Ms.
Villanueva would raise. And Mr. Grangers behavior up to his courtroom outburst
was exemplary. His demeanor [later] became so unruly that I had Dr. Gripon
examine Mr. Granger before proceeding. If Ms. Villanueva had been present, I
Less than two weeks after the Attorney Pro Tem filed the States Response,
the trial court entered an Order, without holding a hearing, again summarily finding
of applicants confinement exist and directing the parties to submit proposed FFCL
Mr. Granger filed a Motion to Strike the States Response to Application for
Writ of Habeas Corpus, arguing that it was materially indistinguishable from the one
that had been previously struck. After a hearing on September 30, 2016, Mr.
Grangers motion was denied. Likewise, Mr. Grangers request for a hearing on
claims involving disputed issues of material fact was implicitly denied based on the
Courts conclusion that it had total discretion as to whether to convene any kind of
9
hearing before adjudicating the habeas claims. RR (Hrg. Tran. 9/30/16) at 4-5, 7, 9,
12-15. Mr. Grangers unopposed oral motion for an extension of time to file
proposed FFCL was initially granted. Id. at 18-19. Afterwards, the trial court
concluded that no such relief would be granted and notified the parties that its
The affidavits that the Applicant and the State had submitted with their
pleadings were never admitted into evidence. See TEX. CODE CRIM. PROC. art.
11.071, 10 (noting that the Rule of Evidence apply to capital post-conviction writ
On October 19, 2016, along with his proposed FFCL, filed merely for
pragmatic reasons, Mr. Granger filed Objections to the Denial of Process Pursuant
to Article 11.071, Section 9 and to the Order requiring proposed FFCL without an
evidentiary hearing. These Objections were presumptively overruled when the trial
court adopted the States proposed FFCL wholesale without ruling on Mr. Grangers
Objections.
SUMMARY OF ARGUMENT
Mr. Granger raised multiple claims that he has been sentenced to death in
10
evidence and disputed issues of material fact. Yet the trial court recommended
The trial court completely disregarded the clear statutory procedure outlined
in Article 11.071. Instead, even after this case had been remanded for a new
proceeding to address a conflict of interest that had marred the previous sham
proceeding, the trial court did no more than hastily go through the same gestures all
over again: denying Mr. Granger notice of the facts in dispute; refusing to permit the
evident from the face of the pleadings; and abdicating to the State the judicial role
by adopting the States erroneous FFCL verbatim. The proceedings below made a
mockery of the mandatory procedure, rendering the FFCL before this Court
unreliable. Therefore, this Court should give no deference to the trial courts FFCL
and recommendations, remand this matter to the 58th District Court for proceedings
consistent with Article 11.071 and Due Process, and require that Mr. Granger at last
have one full and fair opportunity to present his constitutional . . . claims. See Ex
ARGUMENT
I. WHERE A TRIAL COURT EMPLOYS NO PROCEDURE WHATSOEVER FOR
RESOLVING DISPUTED ISSUES OF MATERIAL FACT, THAT COURTS
PROPOSED FFCL ARE NOT ENTITLED TO DEFERENCE.
11
The trial court employed no fact-finding procedure and no evidence of any
kind was admitted. Ergo, the procedure was not adequate for reaching a correct
result. In Ex parte Davila, this Court observed that the standard to which post-
employed was . . . adequate for reaching reasonably correct results. 530 S.W.2d
543, 545 (Tex. Crim. App. 1975) (quoting Townsend v. Sain, 372 U.S. 293, 316
A. Mr. Granger Was Not Provided Notice of the Factual Disputes or the
Opportunity to Be Heard or to Present Evidence in Connection with
Them as Article 11.071 Requires.
convicting court, Texas Code of Criminal Procedure Article 11.071 8(a) directs
the convicting court to determine, based on the application and the States answer,
of the applicants confinement exist. TEX. CODE CRIM. PROC. art. 11.071 8(a).
The court shall issue a written order of the determination. Id. The designation that
controverted, unresolved factual issues exist provides notice to the parties that a
In the event that a convicting court determines, based on the pleadings, that
12
procedure, however, is only appropriate when a court determines that the allegations
such instances, there are no material facts in dispute. An example of such a claim is
evidence is neither required nor received. With that kind of claim, the FFCL and
recommendations can properly be based on the pleadings and the record below, as
Where, however, the resolution of factual issues raised by the claims pleaded
issues material to the legality of confinement exist, the court must: first, issue an
order designating the issues of fact that are to be resolved; and second, announce the
manner by which those issues will be resolved. Id. 9(a). These two statutory steps
are mandatory, as they provide an applicant notice, consistent with due process, of
the issues to be resolved and the manner by which the court will receive evidence to
resolve them. To resolve the issues, the statute authorizes the court to require
Then the Texas Rules of Evidence apply at the hearing, see id. 10, and a hearing
13
transcript must be prepared. See id. 9(d). Once the court reporter prepares and files
the hearing transcript with the court clerk, the court must set a date by which the
parties file proposed FFCL. Id. 9(e). Only then can the court make written findings
of fact to resolve the previously unresolved facts and make conclusions of law based
In short, the statute did not permit the trial court to proceed to finding facts
controverted issues of fact to be resolved and providing notice of the same to Mr.
providing notice of the same to Mr. Granger; 3) announcing the manner in which
these issues will be resolved and providing notice of the same to Mr. Granger; and
The trial court skipped all of these steps and summarily adopted facially
unanswered, such as whether the State withheld compelling evidence from trial
14
fundamental misunderstanding ofthe ineffective assistance claim (see subsection
C, post). Moreover, the face of the pleadings show that numerous disputed facts were
not and could not have been resolved without fact-finding (see subsection C, post).6
Throughout Mr. Grangers capital trial, the State and the defense repeatedly
19-20, 125-26, 130-31, 139, 175-76, 182-85; 26 RR at 99-100. This journal, obtained
during the time when Mr. Grangers daughter, at the urging of his ex-wife, later
alleged that Mr. Granger and others had sexually assaulted her.7 Had trial counsel
6
Whereas Section 9 of Article 11.071 explicitly authorizes the convicting
court to rely on its personal recollection to resolve controverted . . . factual issues
material to the legality of the applicants confinement, Section 8 makes no mention
of the courts personal recollection when it comes to the threshold consideration of
whether such issues exist. In any event, any such reliance is impossible in Mr.
Grangers case because the judge who (twice) disposed of his Application without a
hearing did not preside over the trial. Accordingly, the only evidence available to
the trial court to decide the issues raised in Mr. Grangers Application was the record
and the parties pleadings.
7
Before the shooting, which took place outside of the Jefferson County
Courthouse on March 14, 2012, Mr. Grangers daughter Samantha Jackson had
accused her father and her uncles of sexual abuse, for incidents alleged to have
occurred in 2005, 2006, and 2007. On the second day of the aggravated sexual
assault trial against him, Mr. Granger shot at Jackson and her mother/his ex-wife as
they walked toward the courthouse. A bystander, Minnie Rae Sebolt, was
15
discovered Samantha Jacksons journal, they could have presented compelling
Mr. Grangers tremendous sense of betrayal.8 This evidence would have served to
mitigation narrative about Mr. Grangers mental collapse in the face of false sexual
assault allegations against him and other members of his family. See App. at 40-43,
56-61.
Trial counsel were aware that the journal contained statements favorable to
Mr. Granger and that he had had the journal in his briefcase the day before the
shooting, but they failed to locate it. App. at 64-65. During the post-conviction
investigation, the OCFW discovered the journal still inside the briefcase, which was
being held at the Jefferson County District Attorneys Office. In his Application, Mr.
Granger submitted the journal as an exhibit and alleged that trial counsel were
ineffective for failing to discover the journal during their pre-trial investigation. See
accidentally shot and killed, and her death gave rise to the capital murder conviction
underlying this proceeding.
8
As discussed in the Application, the journalwhich Jackson kept after the
time period in which she alleges to have been sexual assaulted by her father and
uncles (App. at 65-67, 66 n.11)makes no mention of any abuse, speaks positively
about her relationship with her father, and records her self-assessment that I need
to see someone so I can control myself. What I mean by control is not hurting
someone. Id. at 65-70 (quoting App. Ex. 23 at 9 [Samantha Jacksons Journal]).
16
App. at 62-70. Mr. Granger also argued that the State committed misconduct by
failing to turn over the journal, patently favorable evidence, in violation of Brady v.
The habeas record, presently devoid of evidence, cannot resolve the open
questions relevant to establishing that Mr. Grangers due process rights were
violated. See Brady v. Maryland, 373 U.S. 83, 87 (1963) ([T]he suppression by the
good faith or bad faith of the prosecution.). For their part, trial counsel in their
affidavitswhich were also not admitted into evidenceclaim to have spoken with
Mr. Grangers attorney for the aggravated sexual assault case and with the judge
who presided over that case, but neither could locate the journal. Response, Ex. A at
2; Ex. B at 2. But neither the State (in its Answer) nor trial counsel (in their
affidavits) have endeavored to explain how a key piece of mitigating evidence could
have been in the States possession but never disclosed tolet alone reviewed by
9
The States Response makes the baseless assertion that a jury might
consider [the journal] for aggravating purposes. Response at 16. The State offers
no reason to believe that the journals contents, which speak of Mr. Granger in
glowing terms, could be refashioned as aggravating evidence.
17
Despite these unanswered questions, the trial court persisted in its
Granger, No. 13-16388 (58th Dist. Ct., Jefferson County, Tex. Oct. 28, 2016). The
trial court then signed the States proposed FFCL, and that proposallike the
Response that preceded itfailed to address Mr. Grangers contention that the State
Inter alia, Mr. Grangers Application alleges that his trial counsel were
ineffective for failing to investigate and present readily available mitigating evidence
at the punishment phase of trial. App. at 28. In support of this claim, Mr. Granger
produced a sworn affidavit from the trial teams mitigation specialista licensed
social worker with ten years experience. The affidavit detailed trial counsels
chronic failure to communication with the mitigation specialist and the themes she
had nonetheless identified and developed in her investigation that trial counsel failed
to pursue. App., Ex. 2. Specifically, the mitigation report identified the following
compelling themes:
the heavy toll that the false sexual assault allegations had taken on
Mr. Granger, whose mental state increasingly deteriorated in the
years, months, and weeks leading up to the shooting;
18
the impact that the unresolved murder of Mr. Grangers sister had
on him and the rest of the Granger family and how the authorities
failure to investigate had prompted Mr. Grangers mother, Vallire,
to isolate her sons and engulf them in paranoia; and
the extreme domestic violence Mr. Grangers mother had sustained
while she was pregnant with him and throughout his childhood, and
the effects of that trauma on Mr. Grangers development.
availability and evidence to support them, trial counsel relied solely on the scant
evidence developed by their fact investigator, the former chief of the Beaumont
Police Department, then working as a private investigator on his first capital case.
As one might expect under these circumstances, the evidence compiled by the fact
Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases,
36 HOFSTRA L. REV. 677 (2008); State Bar of Tex., Supplementary Guidelines and
Standards for the Mitigation Function of Defense Teams in Texas Death Penalty
10
The full text of Guideline 5.1(C) is instructive:
19
Trial counsels five-sentence response to Ground One focuses exclusively on
their decision not to call their mitigation specialist to testify, which was not Mr.
Grangers argument. Trial counsel ignore the core issue, the allegation of
before trial. App. at 17, 25. As a consequence of counsels failure, the jurors who
mitigation narrative. See id. at 26-28. The States Response also missed the mark by
discussing counsels defensive theory during the guilt phase as if that accounted for
rapport with witnesses, the client, the clients family and significant
others that will be sufficient to overcome barriers those individuals may
have against the disclosure of sensitive information and to assist the
client with the emotional impact of such disclosures. They must have
the ability to advise counsel on appropriate mental health and other
expert assistance.
20
Under Article 11.071, the convicting court has an obligation to resolve
material, contested issues through the various fact-finding measures specified in the
statute. Given trial counsels and the States misunderstanding of Ground Onea
Only after answering these (and numerous other) questions of fact could the trial
21
In addition to the factual disputes that were not resolved because the State did
not even understand Ground One, a number of unsettled factual issues required
testimony from trial counsel and various lay witnesses regarding counsels alleged
psychologist and the director of the Institute for Urban Policy Research and Analysis
at the University of Texas at Austin, the State dismissed this potential contribution
12. Dr. Cokley introduced entirely new expert opinion on an array of relevant topics
witnessing domestic abuse as a child; the psychological impact of the murder of Mr.
Grangers sister and its effect on his view of the criminal justice system; how the
false sexual assault allegations affected Mr. Granger in view of his fear of fulfilling
classic Black stereotypes; and how all of these factors contributed to his downward
spiral in the time leading up to the shooting. App., Ex. 1. These issues were (and
remain) disputed because trial counsel presented no analogous evidence of any kind.
22
The States Response failed to account for trial counsels failure to retain a
social history expert. Trial counsels affidavits simply state: (1) they did not believe
a social history expert was warranted; (2) they considered all known facts in arriving
at this decision; and (3) they presented some social history evidence through lay
witnesses and a mental health expert. Response, Exs. A & B. Such broad, conclusory
statements did not address the reasonableness of their actions. A live evidentiary
hearing should have been held so that the following questions (again, among others)
Did counsel consider using a social history expert in this case; if so, who did
counsel consider using for this purpose, andrelatedlywho did they
consult with for this purpose?
Specifically, why did counsel believe that lay testimony alone would be a
better approach?
Did counsel expect Dr. Edward Gripon, who often testifies for the State in
capital cases, to testify to matters regarding Mr. Grangers social history?11
Only after resolving these and other questions would the trial court have then been
11
At trial, Dr. Gripon did not testify about Mr. Grangers social history. Instead, he
testified, quite unhelpfully, that he had diagnosed Mr. Granger with a personality
disorder and spoke to the issue of future dangerousness. 27 RR at 13-31.
23
2. Disputed facts were unresolved as to whether trial counsel were
ineffective for failing to object to the States improper reference to
Mr. Granger as a murdering son of a bitch and other
improprieties.
Neither the States Response nor trial counsels affidavits addressed most of
Indeed, the only improper remark trial counsel mention in their terse, duplicative
a murdering son of a bitch while cross-examining him during the guilt phase. See
answered.
In response to Mr. Grangers allegation that his trial counsel were deficient
for failing to object to this inflammatory name-callinga failure plainly at odds with
the performance standards set by the American Bar Association 12counsel recalls
thinking [] that perhaps a personal attack on Mr. Granger by Mr. Shettle, the
prosecutor, would garner some consideration in Mr. Grangers favor. Id. The
12
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, 31 HOFSTRA L. REV. 913, 1030 (2003) (One of the most
fundamental duties of an attorney defending a capital case at trial is the preservation
of any and all conceivable errors for each stage of appellate and post-conviction
review . . . (internal quotations omitted)).
24
How any such consideration would have benefitted Mr. Granger in an
adjudication of his guilt for the death of Minnie Rae Sebolt.
How objecting to the murdering son of a bitch remark and moving for a
mistrial would have deprived Mr. Granger of any such consideration.
An evidentiary hearing to further explore what counsels thought process was upon
hearing the State hurl invective at their client was, without question, essential to a
reasonable analysis.
The States Response and affidavits are silent as to all the other improper
object to:
The States questions insinuating that Mr. Grangers mother was associated
with the disreputable practice of Voodoo, an insinuation both baseless and
irrelevant (23 RR at 45-46); and
Absent an explanation from trial counsel, the trial court could do no more than
speculate as to trial counsels rationale for failing to object and preserve error. But
see Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (declining to
speculate as to counsels strategy for failing to challenge a venire member for cause).
Mr. Granger was not permitted to develop a record to rebut the unsubstantiated
25
presumption that Messrs. Makin and Cribbs conduct fell within the range of
reasonable professional assistance per Strickland v. Washington, 466 U.S. 668, 689
(1984). Such is the purpose served by the fact-finding measures that Article 11.071
makes available, measures that include evidentiary hearings tailored to the specific
As for the improper remarks the State made during its punishment phase
closing argument, trial counsels only explanation for sitting on their hands is that
they were being distracted by Mr. Granger. Response, Ex. A at 3. While Volume
29 of the Reporters Record indicates that Mr. Granger became agitated during the
States closing argument, counsels explanation does not square with the records
First, two of the improper remarks were made before Mr. Grangers first
following the law and the evidence), with id. at 25 (defendants first outburst).
While it is conceivable that Mr. Granger was distract[ing] his counsel in ways not
reflected in the transcript, such an assumption should not have been made; instead,
26
an ambiguity like that had to be resolved, for instance, through live testimony at an
evidentiary hearing.
that the omission was unreasonable than a reasonable explanation of strategy. This
the same time. Indeed, the facially unreasonable nature of this argument is
underscored by the fact that trial counsels affidavits are identical on this point. Is it
not perfectly reasonable to expect that, if two lawyers are in court and a client
becomes disruptive, that one lawyer can deal with the client while the other listens
4. The trial court could not assess whether Mr. Granger was
prejudiced by trial counsels numerous deficiencies without first
resolving all issues of disputed fact regarding trial counsels
deficient performanceand that was not done.
To assess whether at least one juror would have been swayed by the
can only be analyzed by considering how the trial would have been different if the
fruits of the post-conviction investigation had been put before the jury. Without
following the statutorily mandated process, any attempt to reach a conclusion of law
27
The parties pleadings could not resolve whether the State withheld from Mr.
Granger what is plainly impeachment evidence under Brady v. Maryland, 373 U.S.
83 (1963), and its relevant progeny (e.g., United States v. Bagley, 473 U.S. 667
Mr. Granger in a sympathetic light. But the material issue of whether the States
agent provided that journal to trial counsel for review before trial is unresolved.
Without trial counsels answers to these and related questions, Mr. Grangers
Two contradictory affidavits from Juror Rivera were put before the trial court.
In her affidavit dated October 24, 2014, Juror Rivera states the following:
I remember there being two distinct phases of the trialthe guilt phase
and the sentencing phase. I do not remember exactly when I decided to
vote guilty, but I do remember deciding to vote for death at the same
time that I decided to vote for guilt.
2015, Juror Rivera states, I did listen during the punishment phase and what I heard
between the sworn statements of the same affiant can only be resolved through the
28
taking of live testimony followed by a credibility determination. This never
necessitated an evidentiary hearing. But counsels scant affidavits are worse than
incompletethey are demonstrably false. For example, trial counsel attested that
they cross-examined Mr. Grangers daughter on the contents and statements [within
her journal], Response, Ex. A at 2 & Ex. B at 2; see also Response at 16. Yet the
Trial counsel did not cross-examine Ms. Jackson at all during the guilt phase
(20 RR at 75), and, in his cross-examination of her during the punishment phase,
Mr. Cribbs never mentions the journal (26 RR at 103-17). Counsels errant
recollection is not explained away by the States breathless assertion that: Had
Applicant attempted to discredit his daughter over the contents of a diary of which
she had no memory after being found guilty of capital murder on the off chance it
might have had some mitigating value could, and in all likelihood would, have
proven disastrous. Response at 17. This statement did not resolve the factual
29
offered no reason to believe that the journals contentsnow knowncould be
would have entirely undermined Ms. Jacksons credibility and explained Mr.
by Mr. Granger in a Motion to Reconsider, filed back on February 27, 2015. One
month later, the inaccuracies again surfaced in the States proposed FFCL; once
more, Mr. Granger brought them to the courts attention, that time in a Motion to
Upon receipt of the motion, the State finally acknowledge[d] that the trial attorneys
examination, as stated in their affidavits . . . are not correct. See States Response
But then, after a remand and the insubstantial do-over, the State yet again
submitted proposed FFCL that falsely assert: Most importantly, trail [sic] counsel
cross-examined Samantha about the diary. States Proposed Findings of Fact and
Conclusions of Law (Oct. 19, 2016) at 5. Then the trial court, once again, adopted
30
Because trial counsel did not cross-examine Mr. Grangers daughter, the
For example, in their response to Ground One trial counsel claim to have fully
investigate[d] all family members and evaluated all information, and they further
claim to have personally talked with numerous family members and knowledgeable
Two, counsel likewise claim that their decision not to call an expert to explain the
impact of Mr. Grangers social history was informed by their [e]valuation of all
known facts, Mr. Grangers statements and the veracity of all parties. Response,
Ex. A at 2; Response, Ex. B at 2. None of these assertions could have been presumed
correct. Unlike statements that could be falsified by reference to the trial transcript,
these and other statements offered by Mr. Grangers counsel could only be tested
through a fact-finding process, which Article 11.071 contemplates, but which the
The existence of numerous disputed issues of material fact, evident from the
face of the pleadings, and the complete absence of any procedure to resolve these
disputed facts mean that any deference to the resulting FFCL would be unreasonable.
31
II. WHERE A TRIAL COURT ADOPTS THE STATES PROPOSED FFCL
WHOLESALE, THOSE FFCL ARE NOT ENTITLED TO DEFERENCE, AND
DEFERRING TO THEM WOULD FURTHER VIOLATE AN APPLICANTS RIGHT
TO DUE PROCESS.
Both this Court and the U.S. Supreme Court have criticized lower courts
practice of adopting wholesale the allegations and conclusions offered by the State
(2010); Anderson v. Bessemer City, 470 U.S. 564, 572 (1985); Ex parte Reed, 271
S.W.3d 698, 729 (Tex. Crim. App. 2008). In addition to unnecessarily complicating
this Courts independent review of the record, Ex parte Reed, 271 S.W.3d at 698,
the practice raises serious doubts concerning the fairness of the proceedings intended
to ensure that this States most severe punishment has been lawfully assigned. This
is especially true when, as here, the States proposal does little else than parrot the
explanations offered by trial counsel in their affidavits, even to the point where it
proposes findings that are belied by the uncontroverted evidence before the
convicting court. Compare States Initial Proposed Findings & Conclusions 8-9
(averring that trial counsel cross-examined Jackson on the contents of the diary),
innocence phase); 26 RR at 103-17 (trial counsel does not mention the diary in his
While the instant appeal only concerns Mr. Granger, it is noteworthy that the
convicting courts of this State routinely adopt in full the States proposed FFCL. See,
32
e.g., Ex parte Cortne Robinson, Harrison County, WR-81,583-01 (findings signed
Aug. 25, 2014); Ex parte Kwame Rockwell, Tarrant County, WR-80,232-01 (Sept.
parte Garland Harper, Harris County, WR-81,576-01 (Dec. 11, 2014); Ex parte
Gary Green, Dallas County, WR-81,575-01 (Dec. 31, 2014); Ex parte Juan Ramirez,
Hidalgo County, WR-71,401-01 (Jan. 20, 2015); Ex parte Teddrick Batiste, Harris
County, WR-81,570-01 (Jan. 21, 2015); Ex parte John Hummel, Tarrant County,
WR-81,578-01 (Jan. 21, 2015). That such a practice has become commonplace in
the review of capital defendants applications for writ of habeas corpus is profoundly
troubling. The trend suggests that Texass death penalty statutory scheme does not
capital defendants (like Mr. Granger) their due process rights under the United States
and Texas Constitutions. Worse still, and as this case demonstrates, the practice
Mr. Grangers only burden at the pleading stage was to allege specific facts,
which, if true, would entitle him to relief. See, e.g., Ex parte Medina, 361 S.W.3d
633, 637 (Tex. Crim. App. 2011) (Texas law has long required all post-conviction
applicants for writs of habeas corpus to plead specific facts which, if proven to be
true, might call for relief.); Ex parte Armstrong, No. WR-78,106-01, 2015 WL
33
7354084, at *2 (Tex. Crim. App. Nov. 18, 2015) (noting that the applicant had
alleged facts that, if true, might entitle him to relief). Cf. Rules Governing 2254
Cases in the United States District Courts, Rule 2 (A petitioner must specify all the
grounds for relief available and state the facts supporting each ground.); FED. R.
evidence. See Medina, 361 S.W.3d at 639. When applicants do attach affidavits
and other documentary evidence to pleadings, it is not for the purposes of seeking to
have such evidence considered under Article 11.071, 9; rather, it is to meet the
pleading burden to allege specific facts. See id. at 637-38 (The application may,
and frequently does, also contain affidavits, associated exhibits, and a memorandum
of law to establish specific facts that might entitle the applicant to relief.); see also
Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009) ([P]ost trial motions
. . . are not self-proving and any allegations made in support of them by way of
The State may then answer or rest upon a general denial. See TEX. CODE CRIM.
When an applicant pleads facts that, if true, might call for relief, and the State
denies those allegations, these factual issues are controverted. See, e.g., Ex parte
Carnes, 579 S.W.2d 249 (Tex. Crim. App. 1979) (holding the finding of the absence
34
to be an abuse of discretion where applicant pleaded a cognizable claim and the State
admitted none of the facts alleged); see also Ex parte Ramirez, No. WR-64076-01,
2006 WL 1173437 (Tex. Crim. App. May 3, 2006) (holding applicant alleged
parte Newby, No. WR-64060-01, 2006 WL 1173422 (Tex. Crim. App. May 3, 2006)
unresolved facts material to the legality of confinement and holding that applicant
had stated facts requiring resolution where it was alleged that appellate counsel was
ineffective for failing to inform applicant that he was entitled to file a petition for
discretionary relief); Ex parte Karlson, 282 S.W.3d 118, 130 (Tex Ct. App.Ft.
Worth 2009) (When faced with conflicting evidence the trial court was required
as proffers to meet the specific factual pleading burden this Court outlined in
Medina. That some of these evidentiary proffers were in the form of affidavits does
35
not mean that Mr. Granger was provided the opportunity to present evidence in
Response to Mr. Grangers Application was struck, the State responded with a
general denial of the factual allegations made in the Application unless otherwise
two and a half exhibits, two were identical affidavits from Mr. Grangers trial
counsel, James R. Makin and C. Haden Cribbs Jr.14 See id. Exs. A & B. Exhibit A
also included a short supplement, which added a few trivial comments to the version
submitted the first time the State answered. Taken together, the pleadingsthe
13
Indeed, were it otherwise, a habeas applicant, by mere virtue of the appendices to
his or her application, would inevitably arrogate the Courts authority under Article
11.071, 9 (a) to determine the manner in which evidence would be received to
resolve controverted factual issues.
14
Mr. Makin and Mr. Cribbs submitted separate affidavits, but the content, as
originally filed, is essentially identical. The second version of the States Response,
which is at issue here, is materially indistinguishable from the original Response,
except that the Attorney Pro Tem obtained a short supplement to Mr. Makins
affidavit and included it behind the original affidavit.
36
multiple issues of material fact that could only be resolved through further fact-
That is, because Mr. Grangers Application included claims that were not
purely legal, several claims could not be adjudicated until disputed issues of
material fact were first resolved. The three claims in the Initial Application that
evidence are:
(3) Mr. Granger was denied his due process right to an impartial jury because
of juror misconduct (Ground 6).
See Initial Application. Article 11.071 9 should have governed the adjudication of
those claims. And the trial court should have recognized that it could not have
15
The Code of Criminal Procedure also authorizes this Court to resolve disputed
issues through affidavits, depositions, [and] interrogatories. TEX. CODE CRIM.
PROC. art. 11.071, 9(a).
37
The sworn allegations in a habeas application and related evidentiary proffers
are, quite simply, not considered evidence. See, e.g., Ex parte Empey, 757 S.W.2d
771, 775 (Tex. Crim. App. 1988) (Even sworn allegations are not alone sufficient
proof.); Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998) (same). Rather,
9(a). See also Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (The hearing must be
The Rules of Evidence apply to the introduction of any such evidence. See TEX.
CODE CRIM. PROC. art. 11.071 10. The trial court, however, never opened a
proceeding wherein Mr. Granger could introduce any evidence in support of his
are not ipso facto evidence. A party cannot obviate the elementary requirement that
whether through live testimony or affidavit, the trial court effectively orchestrated
38
the process so as to preclude any possibility of Mr. Granger prevailing. Plainly, an
applicant cannot carry his burden to prove fact-based claims if he is not allowed to
88 S.W.3d 240, 255 (Tex. Crim. App. 2002) (Cochran, J., concurring) (Trial judges
who are confronted with contradictory affidavits, each reciting a plausible version
of the events, ought to convene an evidentiary hearing to see and hear the witnesses
and then make a factual decision based on an evaluation of their credibility.). See
also id. at 250 (Womack, J., concurring) (That the statute authorizes a court to make
decisions on affidavits does not mean it can make decisions of every kind on
affidavit. The statute can be construed to allow some issues to be decided by written
counsel is alleged, trial counsel often occupy a position that is adverse to their former
client. This circumstance creates ethical problems that must be monitored. See
Christeson v. Roper, 135 S. Ct. 891, 894-95 (2015) (recognizing the importance of
As adverse witnesses, defense counsel become interested parties. The Texas Rules
39
of Civil Procedure state that affidavits from an interested party may establish a fact
for summary judgment purposes only if the evidence is clear, positive and direct,
otherwise credible, and free from contradictions and inconsistencies, and could have
been readily controverted. See TEX. R. CIV. PROC. 166a(c) (setting out the standard
interested witness). See also Charles v. State, 146 S.W.3d 204, 210 (Tex. Crim.
App. 2004). The phrase could have been controverted from Rule 166a(c) means
evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Statements in
affidavits from interested witnesses concerning their own state of mind are
justify the alleged deficiencies and thus placing themselves in a position adverse to
their former client, Mr. Granger. Trial counsels affidavits, moreover, contain
identical language and thus are clearly the product of a collaborative effort,
The trial court could not have credited these affidavits as they were not
evidence. Moreover, the affiants were not subject to cross-examination, nor was Mr.
40
Granger otherwise allowed to challenge their credibility. Without offering any
witnesses credible, or conducting any critical analysis of their credibility, the trial
treated the affidavits of trial counsel as presumptively credible. See, e.g., States
E. In Its Eagerness to Deny Relief to Mr. Granger, the Trial Court Made
Numerous Mistakes of Fact and Law.
Because there was no fact-finding process, the trial court, in adopting the
States proposal wholesale, made numerous mistakes of fact and law. For instance,
the trial court concluded that Ground 4 in the Application, one aspect of the
direct appeal. First, it is factually incorrect: at least one of the prosecutors more
was raised in his direct appealand summarily denied because trial counsel had
which trial counsel failed to object, not just the murdering son of a bitch epithet.
41
In short, the trial courts conclusion with respect to Ground 4 rests on a
and the nature of habeas claims generally. As this Court has made clear, ineffective
assistance of counsel claims are generally extra-record claims that are cognizable for
the first time in habeas, not direct appeal. See, e.g. Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002) (stating that [u]nder normal circumstances, the record
on direct appeal will not be sufficient to show that counsels representation was so
presumption that counsel's conduct was reasonable and professional. As this Court
recently explained, rarely will the trial record contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation:
in the majority of cases, the record on direct appeal is simply undeveloped and
cannot adequately reflect the failing of trial counsel). Moreover, the U.S. Supreme
Courttaking its cue from this Courthas observed that [t]he structure and design
S. Ct. 1911, 1915 (2013) (citing and quoting Robinson v. State, 16 S.W.3d 808, 810-
42
Therefore, a failure to bring an issue relevant to an ineffectiveness claim on
direct appeal would not waive the ability to raise the issue in a habeas application.
F. The Trial Courts FFCL Should Not Be Upheld Because They Were
Written Entirely by the State.
The State is a party to the proceeding, not the law clerk to the 58th District
Court. Article 11.071 and basic fairness require the State and the trial court to work
independently of each other. See, e.g., TEX. CODE CRIM. PROC. art. 11.071, (8),
(9). Nevertheless, the trial court adopted the States proposed FFCL verbatim, under
circumstances strongly suggesting that the trial court completely abdicated its
adjudicatory role.
Pursuant to the trial courts order, the State filed States Proposed Findings
of Fact, Conclusions of Law and Order on October 19, 2016. There are strong
indications that the trial court adopted the States proposal without reading it. The
States proposed FFCL were 17 pages long. The trial court did not make any
review of any kind. The trial court merely signed an Order seven business days later,
stating only:
43
Moreover, the FFCL include legal and factual errors that an experienced jurist
like the presiding judge would not have made had he exercised independent
judgment. With respect to the errors in the FFCL, there are two possibilities: 1) the
trial court read the findings, and, notwithstanding his experience, failed to spot very
basic legal errors based on the asserted facts; or 2) the trial court failed to read the
States proposed FFCL, and signed the States proposed findings verbatim as an
article of faith. Either way, the FFCL are not entitled to deference. Cf. Lindh v.
Murphy, 96 F.3d 856, 871 (7th Cir. 1996) (en banc), revd on other grounds, 521
U.S. 320 (1997) (The reasonableness of a courts application of federal law must be
responsible, thoughtful answer reached after a full opportunity to litigate.); see also
Winston v. Kelly, 592 F.3 535, 555 (4th Cir. 2010) (When, as here, a state court
44
state court adjudications in not appropriate where the state court has passed on the
The Court should not compound the constitutional violations at issue in this
proceeding by deferring to the trial courts unreliable FFCL adopted absent any fact-
under Article 11.071 8(a), this discretion is not unlimited. Due process requires
adverse witnesses, and object to and challenge the substance of evidence offered by
the State. See, e.g., Townsend v. Sain, 372 U.S. 293, 312 (1963), overruled on other
U.S. 399 (1986) (holding due process requires that capital defendants be allowed to
substantiate a claim with their own evidence and be given the opportunity to
challenge and respond to the States evidence against them before such a claim is
rejected); Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (same); see also TEX.
CODE CRIM. PROC. art. 11.071 10 (applying the Texas Rules of Criminal Evidence
45
1. Due process requires notice and the opportunity to be heard.
in our justice system. Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012). Indeed, the
right to counsel is the foundation for our adversary system. Id. As a consequence,
the Supreme Court has taken affirmative steps to ensure that post-conviction review
(finding that cause and prejudice for defaulted ineffective assistance claim may be
appropriate to the nature of the case. Armstrong, 380 U.S. at 550; see also
Goldberg, 397 U.S. at 267 (The fundamental requisite of due process of law is the
opportunity to be heard) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)).
In the context of an application for habeas corpus review, due process requires,
46
Resolutions of disputed factual questions made by a judicial body must be
based on evidence that is admitted at a hearing. Morgan v. United States, 298 U.S.
468, 480-81 (1936). A hearing in the criminal post-conviction context may be less
formal than a trial and need not require live testimony. Ford v. Wainwright, 477 U.S.
399, 427 (1986) (Powell, J., concurring). A hearing, however, requires that there
be at least formal process for admitting, objecting to, and challenging the substance
of evidence offered by a party to resolve those fact disputes. See Goldberg, 397 U.S.
(quoting Armstrong, 380 U.S. at 552 (emphasis supplied)). Due process additionally
requires that the parties are given notice that a hearing is occurring, notice as to
adverse witnesses or evidence offered against a party. See id. at 258 (rudimentary
This Court is not bound by the trial courts FFCL. Ex parte Brandley, 781
S.W.2d 886 (Tex. Crim. App. 1989). In deciding whether to defer to trial court
findings, this Court asks not only whether the findings are supported by the record,
Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989), but also whether
the fact-finding procedure there employed was . . . adequate for reaching reasonably
47
correct results. See Ex parte Davila, 530 S.W.2d 543, 545 (Tex. Crim. App. 1975)
(quoting Townsend v. Sain, 372 U.S. 293, 316 (1963)). Thus an essential question
is: Was the applicant afforded due process at the trial court level? Where a trial
courts determinations are based solely on self-serving affidavits that are facially
determine the affidavits credibility than is the reviewing court. Both are looking at
exactly the same evidence: a cold record, a piece of paper.) (footnotes omitted).
substantiate a claim with his own evidence and be given the opportunity to challenge
and respond to the States evidence against him before such a claim is summarily
rejected. Panetti, 551 U.S. at 952; Ford, 477 U.S. at 414-15 (citing Solesbee v.
[A] right to be heard . . . [is] basic in our system of jurisprudence; and these
rights include, as a minimum, a right to examine the witnesses against him, to offer
testimony, and to be represented by counsel. In re Oliver, 333 U.S. 257, 274 (1948).
As Article 11.071, 9 states, a full hearing does not necessarily require the
presentation of live witnesses; but, due process at least requires that the hearing
whatever form it may takeallow the defendant to introduce his own evidence in a
48
meaningful manner and challenge the States proffered evidence. See id. Indeed, it
is only by providing such a process that a court would be able to make reliable
Mr. Granger was denied the opportunity to introduce any evidence at all.
Mr. Granger was also denied the opportunity to challenge and respond to the
evidentiary proffers against him that the trial court relied on in adopting the States
proposed FFCL. Without accepting any materials into evidence, the trial court
nevertheless relied on the trial counsel affidavits attached to the States Response.
Although Mr. Granger repeatedly asked the trial court to allow him a proper hearing,
the trial court refused to allow even the most basic adversarial testing.
Because Mr. Granger was denied the opportunity to develop any factual
record in this case, this Court should not defer to the trial courts FFCL. While this
Court typically does defer where the trial court is in the unique position to make
accurate credibility determinations and assess the evidence presented, that principle
assumes that the parties were given the opportunity to present evidence to the trial
court. This Courts deference to trial court findings has been, and must continue to
be, contingent upon due process having been afforded at the trial court level.
On numerous occasions, this Court has refused to defer to trial court findings
when the record has been, for whatever reason, insufficiently developed. For
49
example, in Ex parte Evans, this Court remanded an Article 11.07 application to the
trial court because the only evidence in the record relevant to the applicants claims
was sworn allegations from a single party. 964 S.W.2d 643 (Tex. Crim. App. 1998).
Signaling that the record was undeveloped and therefore unreliable, this Court found
that a record must be supported by something more than sworn allegations. Id. at
In Ex parte Jarrett, this Court remanded an Article 11.07 application for the
trial court to make findings regarding whether appellate counsel informed the
applicant of his right to seek discretionary review. 891 S.W.2d 935 (Tex. Crim. App.
1994), overruled on other grounds by Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim.
App. 1997). This Court permitted the trial court to gather the necessary facts either
by affidavit or live testimony. The trial court then ordered an affidavit from appellate
was not given an opportunity to respond to counsels affidavit. Id. at 937. This
Court found that unresolved issues of fact remained because appellate counsels
affidavit did not contain sufficient detail and again remanded the case to the trial
counsels statements to adversarial testing, this Court ordered that the applicant be
appointed counsel to represent him at the hearing. Id. at 940-41. Much as in Jarrett,
50
the trial court in Mr. Grangers case held no evidentiary hearing but merely accepted
the States pleadings while refusing to allow Mr. Granger any opportunity to cross-
This Court also remanded a habeas application to the trial court for further
factual development in Ex parte Campos because the parties involved were not
allegations in the application for writ of habeas corpus. 613 S.W.2d 745, 746 (Tex.
prevented the petitioner from discharging his burden of proof. Id. In much the
same way, Mr. Granger has not been given the opportunity to meet his burden of
proof despite the fact that he met the pleading requirements under Article 11.071,
The fact-finding procedure in Mr. Grangers case has been even more
unreliable than those at issue in Evans, Jarret, and Campos. In essence, the entirety
51
The trial court failed to follow Article 11.071 (8)(a) and (9)(a) by
failing to designate controverted factual issues material to Mr.
Grangers confinement to be resolved;
The trial court failed to follow Article 11.071 (9)(a) and announce the
manner in which it intended to resolve the controverted factual issues
material to Mr. Granger;
The trial court failed to provide Mr. Granger the opportunity to present
evidence in support of his allegations, thereby constraining Mr.
Granger to the sworn factual allegations in his pleadings;
What is missing from this chronology is the part where Mr. Granger is
provided his due process right to present evidence and challenge the evidence
Article 11.071 is built upon the premise that a death row inmate does have
one full and fair opportunity to present his constitutional or jurisdictional claims in
accordance with the procedures of the statute. Ex parte Kerr, 64 S.W.3d at 419
(emphasis original); accord Ex parte Medina, 361 S.W.3d at 642. The trial courts
actions, as of now, have deprived Mr. Granger of that one full and fair opportunity.
52
Mr. Granger requests that this Court remand his Application to the trial court with
with the Due Process Clause of the U.S. Constitution. Only after such a proceeding
A full and fair proceeding consistent with Article 11.071 and the
different; the Supreme Court has long emphasized that the constitution in capital
cases contains protections that the Constitution nowhere else provides. Harmelin
PRAYER
For the foregoing reasons, Mr. Granger respectfully asks that this Court
remand his Application to the trial court for further factual development consistent
with Article 11.071 of the Texas Code of Criminal Procedure and the Due Process
53
Respectfully submitted,
54
CERTIFICATE OF COMPLIANCE
1. Tex. R. App. Proc. 9.4 does not contain a word-count limit for objections to trial
court findings filed with this Court. This brief, however, contains 12,700 words,
excluding the parts exempted by Tex. R. App. Proc. 9.4(i)(2)(B).
2. This brief complies with the typeface requirements of Tex. R. App. Proc. 9.4(e)
because it has been prepared in a proportionally spaced typeface using Microsoft
Word 2013 in 14 point Times New Roman font.
55
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have served the foregoing as follows:
Bartholomew Granger
TDCJ # 999579
TDCJ Polunsky Unit
3872 FM 350 South
Livingston, TX 77351
56