Sunday, September 22, 2013
Texas Court of Criminal Appeals Judge Cathy Cochran Tells You What's Needful for an 11.07 Writ
Texas Court of Criminal Appeals Judge Cathy Cochran- backed up by Judges Johnson and Hervey- explains that they want complete original application with all the information for 11.07 writ applications and responding timely to the State's answer and its proposed findings of fact and conclusions of law. Applicant William Lee Pond's counsel complained that they did not get timely notice of the trial court's finding of facts and conclusions of law.
In late February 2013, the trial judge adopted and filed the State's proposed findings of fact and conclusions of law and the district clerk sent a copy of them to Pond's counsel. That letter got filed in the middle of March and was forwarded to the Court of Criminal Appeals then. The judges complained that Pond alleged that both applicant’s trial and appellate attorneys were constitutionally ineffective, and alleged twenty purported failures by his attorneys. Eleven of his thirteen trial counsel complaints were about failures to object, but he neither asserted nor showed that those objections would have been or should have been sustained. Judge Cochran also complained that Pond failed to show or argue that he was harmed or that there was a reasonable likelihood that his trial result would have been different.
Judge Cochran argues that the original application should have had arguments and showings of harm and that Pond should have responded to the State's answer and findings when the writ application was still in the trial-court evidentiary part, when they might have been argued and changed. Applicant's counsel have to read their mail and respond timely to what the State argues and asserts. Sounds like good advice to me.
Hat tip to the estimable Jim Skelton. His Criminal Law Institute emails are wonderful.
Ex parte William Lee Pond, (No. WR‑79,267‑01,Tex. Crim. App. Sept. 13, 2013)(Cochran, J., concurring in denial of reconsideration- Johnson and Hervey, JJ., joining).