What lies have you seen in writs?

Ex parte Denton



ORDER
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, � 3. Applicant was convicted of aggravated sexual assault of a child under fourteen years of age, and punishment was assessed at confinement for life. Applicant's conviction was affirmed on appeal. Denton v. State, No. 02-02-00467-CR (Tex. App.-Fort Worth, delivered February 26, 2004, pet. ref'd).

Applicant alleges that trial counsel was ineffective, and that his conviction was obtained by the use of a coerced confession because he is actually innocent. To support these allegations, the Applicant submitted a purported sworn affidavit from Sherry Smith, in which she states that she had her daughter "lie" in order to secure a conviction in this cause . The affidavit was purportedly notarized by Christy Putnam.

However, in its findings of fact, the trial court found that the affidavit was forged and perjurious. Specifically, the trial court obtained an affidavit from Sherry Smith in which she denies ever signing the affidavit provided by the Applicant. The trial court also obtained an affidavit from Christy Putnam, in which she denies ever notarizing the affidavit provided by the Applicant . The trial court concluded that the affidavit provided by the Applicant was false and forged.

We find that Applicant has abused The Great Writ by submitting false evidence, deny this application, and cite him for abuse of the writ. Applicant has waived and abandoned any contention he might have in regard to the instant conviction, at least insofar as existing claims which he could or should have brought in this application. Ex parte Jones, 97 S.W.3d 586 (Tex.Crim.App. 2003); Middaugh v. State, 683 S.W.3d 713 (Tex.Crim.App. 1985); Ex parte Emmons, 660 S.W.3d 106 (Tex.Crim.App. 1983). Additionally, based on Applicant's submission of perjurious evidence, we find that Applicant has filed a frivolous lawsuit.

It is therefore ORDERED that the present application submitted under Tex. Code Crim. Proc. 11.07 is denied. In addition, we cite Applicant for abuse of the writ.

PUBLISH

Sweet decision.

Like many of us, I have been accused over the years of a litany of wrongs related to the prosecution of a defendant. One writ that I recall read something like this:

Movant is innocent of all charges, but pleaded guilty because his appointed attorney advised movant that the assistant district attorney was just another crooked prosecutor working for another crooked judge.

I was sued several years ago in State District Court by a pro-se defendant, who after being convicted in his case, had his parole revoked on a life sentence. The cause of action?...I reindicted him as a habitual after he initially refused an offer of 8 years to do on an aggravated assault AND I DIDN't SEEK HIS APPROVAL TO REINDICT HIM. Before dismissal in that case, I also had to suffer through a motion to recuse the judge, based on allegations that the District Judge whose court the case ended up in was prejudiced against the defendant because he was a convict and was not prejudiced against me because I had never been convicted of a felony.

The ones who like to file writs are often the same frustrated novelists who pepper us and the trial court with rambling letters both before and after trial. This guy rambled so much that I guess he just up and forgot his previous claims (an excerpt from my answer follows):

"The claims set forth in the Application are as follows: 1) Actual innocence: "DNA & Ballistic [sic] will prove that I didn't commit said offense", 2) Ineffective assistance of counsel, and 3) Abuse of judicial discretion and violation of the Texas Constitution, Bill of Rights, and U.S. Constitution: Applicant Asserts that he was never given the opportunity to show 'New Evidence' by DNA or Ballistic Report". The only reasonably cogent argument made in the Application seems to be something to the effect that the Applicant was actually innocent, but was pushed into making an involuntary guilty plea by defense counsel, and DNA and ballistics testing would prove his innocence if conducted. See page 6 of the brief attached to the Application: "APPLICANT COMPLAINS AND ALLEGES INEFFECTIVE ASSISTANCE OF COUNSELS [SIC]. IN ADVISING APPLICANT TO PLEAD GUILTY, WHEN COUNSEL AND THE STATE KNEW THAT APPLICANT WAS ACTUALLY INNOCENT AS CHARGED IN THE INDICTMENT. THERE WAS NO DNA TEST, OR BALLISTIC REPORT DONE."

A review of the trial court's file in this case reveals, along with the judgment and other typical documents, a number of letters written by the Applicant and addressed to the trial court. One such letter, which was received by the District Clerk on April 27, 1998, explains that Applicant felt that his sentence was 'excessive', because he had various chemical dependencies and "had not slept in over 48 hours, be fore [sic] I committed the offense". Applicant then states that, "I did not intent [sic] to kill this person. I only fired one shot, in intent tot [sic] scare her.", and finally, "I will regret this offense for the rest of my life. I'am [sic] very sorry I did this crime and deeply sympathy [sic] with the deceased [sic] family."

Elizabeth Foley
Ass't Crim. Dist. Atty
Galveston County, Texas

We were quite pleased that the Court of Criminal Appeals upheld us in the Denton writ (even if they confused us with our colleagues to the East in Dallas).

After reading so many applications ridden with lies or misstatements, it feels good to be able to catch one of the lies.