WR-83,135-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS
Transmitted 12/2/2016 2:40:50 PM
Accepted 12/2/2016 2:52:36 PM
ABEL ACOSTA
WR-83,135-01 CLERK

IN THE COURT OF CRIMINAL APPEALS RECEIVED

COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS 12/2/2016
ABEL ACOSTA, CLERK

EX PARTE BARTHOLOMEW GRANGER

Trial Court No. 13-16388

58th District Court
Jefferson County, Texas

APPLICANTS OBJECTIONS TO THE TRIAL COURTS

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND REQUEST FOR REMAND

ORAL ARGUMENT REQUESTED

OFFICE OF CAPITAL AND FORENSIC WRITS

Benjamin B. Wolff (No. 24091608)
Gretchen Sween (No. 24041996)
1700 N. Congress Avenue, Suite 460
Austin, Texas 78701
(512) 463-8600
(512) 463-8590 (fax)

Attorneys for Applicant

 IDENTITY OF PARTIES AND COUNSEL

Applicant:

Bartholomew Granger

Counsel for Applicant:

OFFICE OF CAPITAL AND FORENSIC WRITS

Benjamin B. Wolff, Director (No. 24091608)
benjamin.wolff@ocfw.texas.gov
Gretchen Sween (No. 24041996)
gretchen.sween@ocfw.texas.gov
Post-Conviction Attorneys
1700 North Congress Avenue, Suite 460
Austin, Texas 78701
(512) 463-8600
(512) 463-8590 (fax)

Respondent:

The State of Texas

Counsel for Respondent:

Thomas P. Roebuck, Jr.

Attorney Pro Tem for the State of Texas
476 Oakland Street
Beaumont, TX 77701
Phone: (409) 892-8227
Fax: 409-892-8318
tom@roebuckthomas.com

i
 STATEMENT REGARDING ORAL ARGUMENT
Counsel for Bartholomew Granger herby requests oral argument pursuant to

Section 11 of Article 11.071 of the Texas Code of Criminal Procedure. Oral

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. Is deference to a trial courts findings and conclusions warranted where a

capital habeas applicant was deprived of basic due process at the trial court
level and the trial court merely adopted the States proposal wholesale, errors
and all?

ii
 TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................. i

Statement Regarding Oral Argument ....................................................................... ii

Questions Presented .................................................................................................. ii

Table of Contents ..................................................................................................... iii

Table of Authorities ................................................................................................. vi

Introduction ................................................................................................................1
Statement of the Case.................................................................................................3

Summary of Argument ............................................................................................10

Argument..................................................................................................................11

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

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. .................12
B. Proffered Evidence of Trial Counsels Ineffectiveness and of
Prosecutorial Misconduct Was Never Admitted. .....................15

C. The States Mischaracterization and Misunderstanding of the

Ineffective Assistance Claim Was Not Addressed. ..................18

D. Multiple Disputed Facts Relevant to Resolving Mr. Grangers

Claims Were Not Resolved. ......................................................21

1. Disputed facts were unresolved regarding trial counsels

ineffectiveness for failing to present an expert to explain
the impact of Mr. Grangers social history.....................22

2. Disputed facts were unresolved as to whether trial counsel

were ineffective for failing to object to the States

iii
 improper reference to Mr. Granger as a murdering son of
a bitch and other improprieties. ....................................24

3. Disputed facts were not resolved as to whether trial

counsel were ineffective for failing to object to the States
improper and inflammatory closing argument during the
punishment phase............................................................26

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

5. Disputed facts relevant to resolving claims of

prosecutorial misconduct were unresolved. ...................27
6. Disputed facts relevant to resolving the claim of juror
misconduct were unresolved. .........................................28

E. Trial Counsels Affidavits, which the State Relied on, Contain

Multiple Inaccuracies, which the Trial Court Adopted
Uncritically................................................................................29
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. ....................................................................32

A. Mr. Granger Well Understood His Pleading Burden................33

B. Mr. Granger Satisfied His Pleading Burden, Making a Prima

Facie Showing That He Had Substantive Constitutional Claims.
...................................................................................................35

C. There Was No Evidence Before the Court Because Article

11.071, 10 Applied and Yet There Was No Mechanism for
Presenting and Testing Evidence. .............................................37

D. The Trial Court Could Not Have Made Credibility

Determinations Regarding Affidavits from Interested Witnesses.
...................................................................................................39

iv
 E. In Its Eagerness to Deny Relief to Mr. Granger, the Trial Court
Made Numerous Mistakes of Fact and Law. ............................41

F. The Trial Courts FFCL Should Not Be Upheld Because They

Were Written Entirely by the State. ..........................................43

G. This Court Should Not Afford Deference to Trial Courts FFCL

Derived from a Process That Violated the Most Basic Tenets of
Due Process. ..............................................................................45
1. Due process requires notice and the opportunity to be
heard................................................................................46

2. A capital habeas proceeding must include an opportunity

to present and test evidence. ...........................................46
3. The deference afforded to trial court findings is dependent
upon the quality of the fact-finding procedure employed.
........................................................................................47
4. The quality of the fact-finding procedure afforded Mr.
Granger is indefensible. ..................................................49

H. This Court Should Remand Mr. Grangers Application to the

Trial Court to Provide Mr. Granger His One Full and Fair
Opportunity to Present His Constitutional Claims..................52
Prayer .......................................................................................................................53
Certificate of Compliance ........................................................................................55

Certificate of Service ...............................................................................................56

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

Statutes & Rules

FED. R. CIV. PROC. 12...............................................................................................34
TEX. CODE CRIM. PROC. art. 11.071 ................................................................. passim
TEX. CODE CRIM. PROC. art. 26.052 ...........................................................................4

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

in, that is, a striking example of, sham proceedings.

For instance, at trial, the lead prosecutor described Mr. Granger as a

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

instances of trial counsels deficient performance that prejudiced Mr. Granger

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-

finding process. The unjustly circular nature of these proceedings is staggering.

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

because the first proceeding was marred by a problematic conflict of interest.

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

appeared on pleadings opposing Mr. Grangers challenge to the constitutionality of

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

could be addressed, the sham was simply repeated.

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-

sentence orderjust as he had previously adopted the States virtually identical

proposal previously submitted by DA Worthams office.

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

not just improper, it amounts to a violation of constitutionally mandated due process.

STATEMENT OF THE CASE

Bartholomew Granger is confined under a sentence of death pursuant to the

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

at 5. The Court appointed C. Haden Sonny Cribbs as trial counsel. See 2 RR at 2.

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

re-indicted for capital murder (Cause No. 13-16388). CR at 2.

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

that same day, a guilty verdict was returned. Id. at 61.

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

at 7-127; 28 RR at 5-72. Both sides then presented closing arguments. 29 RR at 12-

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.

Bartholomew Granger was sentenced to death. Id. at 48.

Next, the Court appointed the OCFW4 to represent Mr. Granger in his post-

conviction habeas litigation, pursuant to Article 11.071 of the Code of Criminal

Procedure. Mr. Grangers Application, filed on October 28, 2014, alleged seven

distinct claims as follows:

(1) Mr. Grangers trial counsel provided ineffective assistance of counsel in

violation of the Sixth Amendment of the U.S. Constitution (Grounds 1-5);

(2) The prosecution engaged in misconduct in violation of Brady v. Maryland

and its federal and state progeny (alternative ground in Initial Application
at 65);

(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);

(6) Mr. Grangers death sentence is unconstitutional because it was assigned

based on Texass arbitrary system of administering the death penalty
(Ground 9); and

(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

adjudicated. Therefore, Article 11.071 8(b), Findings of Fact Without Evidentiary

Hearing, governed those claims.

Claims (1)-(3), however, required the resolution of factual issues and the

consideration of extra-record evidence. Therefore, Article 11.071 8(b) is

inapplicable to those claims. Instead, Article 11.071 9 should have governed.

Attached to Mr. Grangers Application were numerous evidentiary proffers.

See App. at Exhibits 1-25.

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

controverted, previously unresolved factual issues material to the legality of

applicants confinement exist[ed]. The trial courts Order also required both parties

to file proposed FFCL by March 24, 2015.

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

material issues of fact to be resolved at an evidentiary hearing held pursuant to

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 23, 2015, both parties submitted proposed FFCL.

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

denied Mr. Grangers motion on April 2, 2015 without a hearing.

On April 6, 2015, the trial court signed an Order adopting wholesale the

States Amended Proposed Findings of Fact and Conclusions of Law by reference.

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

that DA Wortham was purporting to represent the State in a proceeding challenging

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

subsequently granted an extension of time to do so. The Response became due on

September 9, 2016 and was timely filed on that day.

The Response that the Attorney Pro Tem filed on the States behalf on

September 9, 2016 was, however, materially indistinguishable from the Response

8
filed on the States behalf by DA Worthams office back on February 9, 2015. The

Response included one additional evidentiary proffer: a short supplement to 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

would not have called her.

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

that no controverted, previously unresolved factual issues material to the legality

of applicants confinement exist and directing the parties to submit proposed FFCL

by October 19, 2016.

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

previous written Orderrequiring the submission of proposed FFCL on or before

October 19, 2016would stand.

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

proceedings). Thus no affidavits were subjected to adversarial testing and no

credibility determinations were (or could have been) made.

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

violation of his constitutional rights. Several claims are based on extra-record

10
evidence and disputed issues of material fact. Yet the trial court recommended

denying all relief without first conducting any fact-finding.

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

admission of evidence despite the presence of numerous disputed material facts

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

parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002).

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-

conviction proceedings are to be held is whether the fact-finding procedure there

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

(1963)) (ellipsis in original).

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.

When an application challenging a judgment imposing death is filed in the

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,

whether controverted, previously unresolved factual issues material to the legality

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

hearing will occur.

In the event that a convicting court determines, based on the pleadings, that

previously unresolved factual issues material to confinement do not exist, Article

11.071 8(b), Findings of Fact Without Evidentiary Hearing, governs. This

12
procedure, however, is only appropriate when a court determines that the allegations

of unconstitutional confinement may be resolved based solely on the pleadings. In

such instances, there are no material facts in dispute. An example of such a claim is

a challenge to the constitutionality of Texass capital murder statute, for which

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

with a motion for summary judgment as a matter of law.

Where, however, the resolution of factual issues raised by the claims pleaded

in an application requires extra-record evidence, whether it be by affidavit,

deposition, live testimony, or the convicting judges personal recollection of trial

proceedings, then Article 11.071 8(b) is inapplicable. Instead, Article 11.071 9

governs. When a court determines that controverted, previously unresolved factual

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

affidavits, depositions, and interrogatories, and to hold evidentiary hearings. Id.

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

on that fact-finding. Id.

In short, the statute did not permit the trial court to proceed to finding facts

under Article 11.071 9(d)-(e) without first: 1) designating the existence of

controverted issues of fact to be resolved and providing notice of the same to Mr.

Granger; 2) designating which controverted issues of fact are to be resolved and

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

4) providing Mr. Granger an opportunity to be heard, to present evidence as to the

controverted issues of fact, to object to the admissibility of evidence offered by the

State, and to confront adverse witnesses.

The trial court skipped all of these steps and summarily adopted facially

unreliable findings and conclusions drafted by the State.

Because there was no fact-finding process below, numerous questions remain

unanswered, such as whether the State withheld compelling evidence from trial

counsel, in violation of Brady v. Maryland (see subsection B, post). The States

Response and trial counsels affidavits also mischaracterizeand thereby betray a

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

B. Proffered Evidence of Trial Counsels Ineffectiveness and of

Prosecutorial Misconduct Was Never Admitted.

Throughout Mr. Grangers capital trial, the State and the defense repeatedly

referred to a journal that had been kept by his daughter. 18 RR at 36-38; 23 RR at

19-20, 125-26, 130-31, 139, 175-76, 182-85; 26 RR at 99-100. This journal, obtained

during the post-conviction investigation, demonstrates that it had been maintained

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

evidence casting doubt on these inflammatory allegations and lending credibility to

Mr. Grangers tremendous sense of betrayal.8 This evidence would have served to

rebut a particularly prejudicial extraneous offense and supported a larger (untold)

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.

Maryland and its progeny. App. at 65 n.10.

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

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of 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

Mr. Grangers counsel without violating Brady.9

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

determination that no controverted, previously unresolved factual issues material

to the legality of [Grangers] confinement exist. Order, Ex parte Bartholomew

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

contravened Brady by withholding the journal from his trial counsel.

C. The States Mischaracterization and Misunderstanding of the

Ineffective Assistance Claim Was Not Addressed.

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.

See App. Ex. 2 at Attachment.

None of these mitigation themes were presented at trial. Despite their

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

investigator was sparse and unpersuasive. See generally ABA, Supplementary

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

Cases, 78 TEX. B.J. (July 2015).10

10
The full text of Guideline 5.1(C) is instructive:

Mitigation specialists must be able to identify, locate and interview

relevant persons in a culturally competent manner that produces
confidential, relevant and reliable information. They must be skilled
interviewers who can recognize and elicit information about mental
health signs and symptoms, both prodromal and acute, that may
manifest over the clients lifetime. They must be able to establish

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

ineffectiveness for failing to investigate and present readily available mitigating

evidence, developed by their qualified mitigation specialist and available to them

before trial. App. at 17, 25. As a consequence of counsels failure, the jurors who

sentenced Mr. Granger to death heard only a disjointed and poorly-informed

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

the paltry mitigation presentation in the punishment phase.

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.

ABA, Supplementary Guidelines for the Mitigation Function of Defense Teams in

Death Penalty Cases, 36 HOFSTRA L. REV. 677, 682 (2008); see also 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) (Guideline
4.1(C)) (same). No evidence has been adduced to suggest that the defenses fact
investigator possessed training or experience remotley comparable with the
standards set forth in this Guideline.

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

misunderstanding evinced by trial counsels affidavits and the States pleadings,

respectivelythe pleadings alone could not answer important questions of fact

relevant to Mr. Grangers confinement under a sentence of death. For example:

What actions did counsel take to fully investigate all family

members and evaluate[] all information, as alleged in their
affidavits?
Were counsel in contact with the mitigation specialist during the
investigation period? If so, to what extent?
Were counsel aware of the several themes which the mitigation
specialist identified? If so, how familiar were they with those
themes?
Which aspect(s) of the fact investigators background led counsel to
believe that he was qualified to conduct a mitigation investigation
in a capital murder case?
Which aspect(s) of the fact investigators background led counsel to
rely on him in lieu of their more experienced and better qualified
mitigation specialist?

Only after answering these (and numerous other) questions of fact could the trial

court have reasonably determine the adequacy of the investigations supporting

[counsels] judgments and, correspondingly, the deference owed such strategic

judgments. See Wiggins v. Smith, 539 U.S. 510, 521-22 (2003).

D. Multiple Disputed Facts Relevant to Resolving Mr. Grangers Claims

Were Not Resolved.

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

deficiencies, no such testimony was permitted.

1. Disputed facts were unresolved regarding trial counsels

ineffectiveness for failing to present an expert to explain the impact
of Mr. Grangers social history.

In response to the seventeen-page affidavit submitted by Dr. Kevin Cokley, a

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

by characterizing this well-respected expert as an unknown variable. Response at

12. Dr. Cokley introduced entirely new expert opinion on an array of relevant topics

including: the extraordinary overprotectiveness of Mr. Grangers mother and her

unhealthy racial socialization of him; the long-term psychological effects of

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)

could have been answered:

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, what information did counsel consider in reaching their decision

not to retain and call a social history expert?

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

equipped to determine whether counsel provided effective assistance at the

punishment phase of Mr. Grangers trial.

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

the improper, objectionable statements by prosecutors identified in the Application.

Indeed, the only improper remark trial counsel mention in their terse, duplicative

affidavits is about the lead prosecutors ad hominem description of Mr. Granger as

a murdering son of a bitch while cross-examining him during the guilt phase. See

Response, Ex. A. Moreover, counsels explanation raised more questions than it

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

affidavits do not address, for instance:

What trial counsel mean by their vague term consideration.

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

comments cited in Mr. Grangers ineffective-assistance claim. See App. at 71-77.

Specifically, counsel have offered no purportedly strategic rationale for failing to

object to:

The States description of Mr. Granger as disgusting (24 RR at 55);

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

The States invitation to the jury to imagine themselves in a familial

relationship to the decedent, Ms. Sebolt (24 RR at 32).

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

allegations made in a given application.

3. Disputed facts were not resolved as to whether trial counsel were

ineffective for failing to object to the States improper and
inflammatory closing argument during the punishment phase.

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

particularsor with common sense.

First, two of the improper remarks were made before Mr. Grangers first

outburst. Compare 29 RR at 23 (State purports to speak [o]n behalf of . . . the family

of Minnie Sebolt), and id. at 24 (State characterizes a life-sentence vote as not

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.

Second, the representation that counsel was distracted is more a concession

that the omission was unreasonable than a reasonable explanation of strategy. This

characterization suggests that a lawyer is incapable of walking and chewing gum at

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

to the States argument and acts to preserve error?

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

cumulative effect of trial counsels deficient performance is a legal conclusion that

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

with respect to the ineffective assistance claim was plain error.

5. Disputed facts relevant to resolving claims of prosecutorial

misconduct were unresolved.

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

(1985) (undisclosed impeachment evidence qualifies as Brady material)). Ms.

Jacksons journal clearly constitutes impeachment evidence and otherwise portrays

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

prosecutorial misconduct claims cannot be resolved.

6. Disputed facts relevant to resolving the claim of juror

misconduct were unresolved.

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.

App., Ex. 16 at 4 (emphasis added). By contrast, in an affidavit dated January 2,

2015, Juror Rivera states, I did listen during the punishment phase and what I heard

convinced me to vote for the death penalty. Response, Ex. C at 1. A conflict

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

happened. Additionally, neither affidavit was ever admitted into evidence.

E. Trial Counsels Affidavits, which the State Relied on, Contain

Multiple Inaccuracies, which the Trial Court Adopted Uncritically.

As illustrated above, trial counsels affidavits fail to even acknowledge

important allegations raised in Mr. Grangers Application. This failure alone

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 transcript belies these assertions. See 20 RR at 75; 26 RR at 103-17.

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

dispute; it is merely a conclusory argument based on rank speculation. The State

29
offered no reason to believe that the journals contentsnow knowncould be

refashioned as aggravating evidence when it is classic impeachment evidence that

would have entirely undermined Ms. Jacksons credibility and explained Mr.

Grangers emotional outrage at being wrongfully accused of sexual abuse.

Strangely, these inaccuracies in trial counsels affidavits were first identified

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

Request Argument Concerning the Parties Proposed Findings and Conclusions.

Upon receipt of the motion, the State finally acknowledge[d] that the trial attorneys

[sic] recollections regarding whether that questioning occurred during cross-

examination, as stated in their affidavits . . . are not correct. See States Response

to Applicants Request for Oral Arguments Concerning Proposed Findings and

Conclusions, Ex parte Bartholomew Granger, No. 13-16388, at 3 (58th Dist. Ct.,

Jefferson County, Tex. Mar. 31, 2015).

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

the factually false finding wholesale.

30
 Because trial counsel did not cross-examine Mr. Grangers daughter, the

credibility to be afforded their other self-serving assertions necessarily diminishes.

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

parties. Response, Ex. A at 1-2; Response, Ex. B at 1-2 . In response to Ground

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

trial court refused to provide.

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

during post-conviction proceedings. Jefferson v. Upton, 560 U.S. 284, 293-94

(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),

with 20 RR at 75 (trial counsel declines to cross-examine Jackson during the guilt/

innocence phase); 26 RR at 103-17 (trial counsel does not mention the diary in his

cross-examination of Jackson during the punishment phase).

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.

9, 2014); Ex parte Mark Soliz, Johnson County, WR-82,429-01 (Nov. 6, 2014); Ex

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

function as an independent and impartial system but, instead, effectively denies

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

undermines the very integrity of the post-conviction review process.

A. Mr. Granger Well Understood His Pleading Burden.

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.

CIV. PROC. 12(b)(6). There is no requirement that habeas applicants plead

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

affidavit or otherwise must be offered into evidence at a hearing.).

The State may then answer or rest upon a general denial. See TEX. CODE CRIM.

PROC. art. 11.071 7.

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

of controverted, previously unresolved facts material to the legality of confinement

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

unresolved factual issues material to confinement requiring resolution where

applicant alleged ineffective assistance of counsel due to a conflict of interest); Ex

parte Newby, No. WR-64060-01, 2006 WL 1173422 (Tex. Crim. App. May 3, 2006)

(overruling trial court holding that there were no controverted, previously-

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

to resolve the conflict.).

B. Mr. Granger Satisfied His Pleading Burden, Making a Prima Facie

Showing That He Had Substantive Constitutional Claims.

Mr. Granger attached affidavits and documentary evidence to his Application

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

support of his allegations pursuant to Article 11.071, 9.13

On or about September 9, 2016, approximately six months after its original

Response to Mr. Grangers Application was struck, the State responded with a

general denial of the factual allegations made in the Application unless otherwise

supported by the Record. Response at 2. The Response was supported by a total of

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

Application, the States Response, and the affidavits of trial counselpresent

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-

finding following an evidentiary hearing.15

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

required the resolution of factual issues and the consideration of extra-record

evidence are:

(1) Mr. Grangers trial counsel provided ineffective assistance of counsel in

violation of the Sixth Amendment of the U.S. Constitution (Grounds 1-5);

(2) The prosecution engaged in misconduct in violation of Brady v. Maryland

and its federal and state progeny (alternative ground in Initial Application
at 65); and

(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

resolved the controverted factual issues without a live, contested hearing.

C. There Was No Evidence Before the Court Because Article 11.071, 10

Applied and Yet There Was No Mechanism for Presenting and
Testing Evidence.

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,

evidence is the proof submitted at a hearing opened pursuant to Article 11.071,

9(a). See also Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (The hearing must be

at a meaningful time and in a meaningful manner.) (quoting Armstrong v. Manzo,

380 U.S. 545, 552 (1965)) (emphasis supplied).

Article 11.071, 9 provides the exclusive statutory mechanism through which

factual development may occur in relation to claims pled in a habeas application.

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

claims of unconstitutional confinement. While an affidavit may be considered

admissible evidence as a general proposition, affidavits attached to habeas pleadings

are not ipso facto evidence. A party cannot obviate the elementary requirement that

evidence be introduced by a partyand the opposing party be offered an opportunity

to object to its admissibilityby simply attaching documents to a pleading. See id.

Without opening a proceeding where Mr. Granger could introduce evidence,

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

offer evidence for admission.

D. The Trial Court Could Not Have Made Credibility Determinations

Regarding Affidavits from Interested Witnesses.

Affidavits are a disfavored method where a trial judge must resolve

controverted factual issues involving credibility determinations. See Manzi v. State,

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

evidence when credibility determinations are not involved.).

In the post-conviction context where a claim of ineffective assistance of trial

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

policing conflicts of interest that can arise in capital post-conviction representation).

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

for summary judgment proof based on uncontroverted testimonial evidence of an

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

the testimony at issue is of a nature which can be effectively countered by opposing

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

uncontrovertible because the mental workings of an individuals mind are matters

about which adversaries have no knowledge or ready means of confirming or

controverting. Charles, 146 S.W.3d at 210.

Trial counsels affidavits are self-serving, containing information intended to

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,

rendering them yet more unreliable.

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

explanation of the rationale for finding the affidavits of these self-interested

witnesses credible, or conducting any critical analysis of their credibility, the trial

court, by adopting the States proposed FFCL wholesale, nevertheless repeatedly

treated the affidavits of trial counsel as presumptively credible. See, e.g., States

Proposed FFCL at 3, 5, 6 (making findings based solely on trial counsels

Affidavits attached to the States Response).

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

ineffective assistance claim, had been waived because of failing to raise it on

direct appeal. First, it is factually incorrect: at least one of the prosecutors more

egregious commentsreferring to Mr. Granger as a murdering son of a bitch

was raised in his direct appealand summarily denied because trial counsel had

failed to preserve the issue by objecting.

More importantly, Ground 4 is one part of a larger ineffective assistance

claim. That ground is based on the prosecutors numerous improper comments to

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

complete misunderstanding of both the scope of Mr. Grangers ineffectiveness claim

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

deficient and so lacking in tactical or strategic decisionmaking as to overcome the

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

of the Texas system in actual operation [] make it virtually impossible for an

ineffective assistance claim to be presented on direct review. Trevino v. Thaler, 133

S. Ct. 1911, 1915 (2013) (citing and quoting Robinson v. State, 16 S.W.3d 808, 810-

811 (Tex. Crim. App. 2000)).

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.

That position reflects a complete misapprehension of the governing law.

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

modificationno corrections, appendices, substitutions, or indications of judicial

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

measured, at least in part, by determining whether a state court provided a

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

forecloses further factual development of the factual record, it passes up the

opportunity that exhaustion ensures.); id. at 557 (explaining AEDPA deference to

44
state court adjudications in not appropriate where the state court has passed on the

opportunity to adjudicate [the] claim on a complete record.).

G. This Court Should Not Afford Deference to Trial Courts FFCL

Derived from a Process That Violated the Most Basic Tenets of Due
Process.

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-

finding process adequate for ascertaining the truth.

While the convicting court enjoys considerable discretion to determine the

manner of fact-finding through which it wishes to resolve issues of fact determined

under Article 11.071 8(a), this discretion is not unlimited. Due process requires

that a habeas applicant be afforded the opportunity to present evidence, confront

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

ground by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992); Ford v. Wainwright, 477

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

to a hearing under Article 11.071).

45
 1. Due process requires notice and the opportunity to be heard.

The right to the effective assistance of counsel at trial is a bedrock principle

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

of ineffective assistance claims is meaningful. See Trevino, 133 S. Ct. at 1919

(finding that cause and prejudice for defaulted ineffective assistance claim may be

established by a showing of ineffective assistance of state post-conviction counsel

because Texas does not afford[] meaningful review of a claim of ineffective

assistance of trial counsel).

The Due Process Clause requires, at a minimum, that deprivation of life,

liberty or property by adjudication be preceded by notice and opportunity for hearing

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,

indeed, presupposes the opportunity to be heard, to argue and present evidence.

Townsend, 372 U.S. at 312.

2. A capital habeas proceeding must include an opportunity to

present and test evidence.

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.

at 267 (The hearing must be at a meaningful time and in a meaningful manner.)

(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

which disputes the hearing is intended to resolve, and an opportunity to confront

adverse witnesses or evidence offered against a party. See id. at 258 (rudimentary

due process requires an effective opportunity to present ones case, including by

confronting adverse witnesses).

3. The deference afforded to trial court findings is dependent upon

the quality of the fact-finding procedure employed.

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

flawed, deference is unwarranted. Cf. Manzi, 88 S.W.3d at 254-55 (Cochran, J.,

concurring) (explaining that, as opposed to credibility determinations based on live

testimony, in the context of affidavits, the trial judge is in no better position to

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).

At a minimum, due process requires that a capital defendant be allowed to

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.

Balkcom, 339 U.S. 9, 23 (1950) (Frankfurter, J., dissenting)).

[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

findings based on the evidence. See id.

4. The quality of the fact-finding procedure afforded Mr. Granger

is indefensible.

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

648 (citing Ex parte Empey, 757 S.W.2d at 775).

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

counsel and relying solely upon appellate counsels affidavit, determined

applicants claim of ineffective assistance of counsel lacked merit. . . . Applicant

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

court for further fact-finding. Indicating the importance of subjecting predecessor

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-

examine counsel on their conclusory and self-serving statements. As with Jarret, a

remand to the trial court for further factual development is essential.

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

allowed the opportunity to present evidence to support or deny the controverted

allegations in the application for writ of habeas corpus. 613 S.W.2d 745, 746 (Tex.

Crim. App. 1981). This procedure was particularly problematic because it

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,

9 to warrant further factual development.

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

of the proceedings unfolded as follows:

Mr. Granger made allegations, pled sufficient facts, and provided

evidentiary proffers;

The State answered, and attached evidentiary proffers in the form of

two short, largely identical affidavits from trial counsel;

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;

Notwithstanding the trial courts failure to designate controverted

factual issues for resolution and refusal to permit Mr. Granger the
opportunity to present evidence, the trial court relied solely on
affidavits from trial counsel produced by the State (but never admitted
into evidence); and

The trial court ruled against Mr. Granger by signing an Order

adopting wholesale the FFCL written entirely by the State.

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

proffered against him.

H. This Court Should Remand Mr. Grangers Application to the Trial

Court to Provide Mr. Granger His One Full and Fair Opportunity
to Present His Constitutional Claims.

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

direction to proceed according to the mandates of Article 11.071 and in compliance

with the Due Process Clause of the U.S. Constitution. Only after such a proceeding

will this Court be in a position to trust the trial courts findings.

A full and fair proceeding consistent with Article 11.071 and the

Constitutions Due Process Clause is essential in capital cases because death is

different; the Supreme Court has long emphasized that the constitution in capital

cases contains protections that the Constitution nowhere else provides. Harmelin

v. Michigan, 501 U.S. 957, 993 (1991).

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

Clause of the U.S. Constitution.

53
 Respectfully submitted,

OFFICE OF CAPITAL AND FORENSIC WRITS

/s/ Gretchen S. Sween
Benjamin B. Wolff (No. 24091608)
Gretchen Sween (No. 24041996)
1700 N. Congress Avenue, Suite 460
Austin, Texas 78701
(512) 463-8600
(512) 463-8590 (fax)

Attorneys for Applicant

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.

DATED: December 2, 2016 /s/ Gretchen S. Sween

Gretchen S. Sween
Post-Conviction Attorney

55
 CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have served the foregoing as follows:

Thomas P. Roebuck, Jr.

Attorney Pro Tem for the State of Texas
tom@roebuckthomas.com

Bartholomew Granger
TDCJ # 999579
TDCJ Polunsky Unit
3872 FM 350 South
Livingston, TX 77351

The Honorable W. Kent Walston

c/o smoreau@co.jefferson.tx.us
(courtesy copy)

This certification is executed on December 2, 2016, in Austin, Texas.

/s/ Gretchen S. Sween

Gretchen S. Sween

56