Amicus Brief of P. Cummings

Filed: 1/10/2018 2:41 PM
Lisa David, District Clerk

Williamson County, Texas
Anita Collins
NO. WR-87,470-01
IN THE
COURT OF CRIMINAL APPEALS
__________________________
NO. 13-1367-K26-A
IN THE 26TH JUDICIAL DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
__________________________
GREGORY RAYMOND KELLEY,

APPLICANT
V.
THE STATE OF TEXAS,

RESPONDENT
__________________________
BRIEF OF AMICUS CURIAE

PATRICIA CUMMINGS, TRIAL LAWYER FOR
GREGORY RAYMOND KELLEY
DAVID BOTSFORD GARY A. UDASHEN

Bar Card No. 02687950 Bar Card No. 20369590
BOTSFORD & ROARK gau@udashenanton.com
1307 West Avenue UDASHEN | ANTON
Austin, Texas 78701 2311 Cedar Springs Road, Suite 250
512-476-1900 Dallas, Texas 75201
512-479-8040 fax 214-468-8100
214-468-8104 fax
ED WALSH
Bar Card No. 20806500
405 Round Rock Avenue
Round Rock, Texas 78664
512-255-6665
512-255-6654 fax
Envelope# 21739280
IDENTITY AND INTEREST OF AMICUS CURIAE
Pursuant to T. R. App. P. 11, this brief is submitted on behalf of
Patricia Cummings, trial attorney for Applicant, Gregory Raymond
Kelley. Cummings submits this amicus curiae brief to bring to the court's
attention facts and law that the parties have failed to provide the court.
This brief is submitted by David Botsford, Gary Udashen and Ed
Walsh. None of the attorneys have been paid a fee for preparation of this
amicus curiae brief.
i
TABLE OF CONTENTS
Page
Identity and Interest of Amicus Curiae .................................................... i
Table of Contents ................................................................................ ii-iii
Index of Authorities ............................................................................iv-vii
Summary of the Argument ...................................................................... 1
Issue I ....................................................................................................... 2
Patricia Cummings did not provide ineffective assistance to

Kelley.
Argument .................................................................................................. 2
Background of Case ......................................................................... 5
Waiver of Appeal ............................................................................. 6
Conflict of Interest Claim .............................................................. 13
The Trial Court’s Credibility Findings ......................................... 27
Comments on Specific Findings of Fact ........................................ 29
Comments on Specific Conclusions of Law ................................... 38
Conclusion on Trial Court’s Findings ........................................... 40
Issue II .................................................................................................... 40
Response to State Prosecuting Attorney’s recommendation

of a remand to allow Cummings to defend herself.
ii
Argument ................................................................................................ 41
Right To Present A Defense .......................................................... 41
Proposed Relief .............................................................................. 56
Issue III .................................................................................................. 58
Kelley received ineffective assistance on his motion for new

trial.
Argument ................................................................................................ 58
Waiver of Issue .............................................................................. 58
Law on Ineffective Assistance on Motion for New Trial .............. 61
Facially Plausible Grounds ........................................................... 63
Conclusion on Ineffective Assistance on Motion for New Trial ... 68
Conclusion .............................................................................................. 69
Certificate of Service .............................................................................. 71
Certificate of Compliance ....................................................................... 72
iii
INDEX OF AUTHORITIES
Cases Page
Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007) ........................ 13
Bailey v. State, 469 S.W.3d 762

(Tex. App. - Houston [1st Dist.] 2015),
affirmed 507 S.W.3d 740 (Tex. Crim. App. 2016) ................................... 49
Barbaro v. State, 115 S.W.3d 799

(Tex. App. - Amarillo 2003, pet. ref'd) .................................................... 13
Barnett v. State, 338 S.W.3d 680 (Tex. App. - Texarkana 2011) ............ 63
Bogan v. State, 78 Tex. Crim. 86, 180 S.W. 247 (1915) .......................... 64
Bone v. State, 77 S.W.3d 828

(Tex. Crim. App. 2002) .................................................... 44, 47, 48, 56, 57
Christeson v. Roper, 135 S.Ct. 891 (2015)............................................... 60
Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007) ......................... 60
Creech v. State, 718 S.W.2d 89 (Tex. App. - El Paso 1986, no pet.) ......... 7
Cruz v. State, 2006 WL 3234158 (Tex. App. - El Paso 2006, no pet.) ...... 7
Cuyler v. Sullivan, 446 U.S. 335 (1980) .................................................. 13
Eubanks v. State, 326 S.W.3d 231

(Tex. App. Houston [1st Dist.] 2010, pet. ref'd) ........................................ 7
Ex Parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005) ....................... 56
iv
Ex parte Huddlestun, 505 S.W.3d 646
(Tex. App. - Texarkana 2016, pet. ref’d) .................................................. 17
Ex Parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005) .............. 16
Figueroa v. State, 2017 WL 2289031

(Tex. App. - Dallas 2017, no pet.) (not designated for publication)........ 17
Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009) .................... 10
Griffith v. State, 507 S.W.3d 720 (Tex. Crim. App. 2016) ...................... 61
Guar. Fed. Sav. Bank v. Horsehore Operating Co.,

793 S.W.2d 652 (Tex. 1990) ..................................................................... 57
Holmes v. South Carolina, 547 U.S. 319 (2006) ..................................... 46
Jenkins v. State, 495 S.W.3d 347

(Tex. App. - Houston [14th Dist.] 2016, no pet.) ..................................... 60
Kelley v. State, 2016 WL 612932

(Tex. App. - Austin 2016, pet. ref'd) ........................................................ 66
Lundgren v. State, 434 S.W.3d 594 (Tex. Crim. App. 2014)............... 6, 12
Macias v. State, 2002 WL 31569002

(Tex. App. - Dallas 2002, no pet.) (not designated for publication).......... 7
Martinez v. State, 212 S.W.3d 411

(Tex. App. - Austin 2006, pet. ref’d) ........................................................ 18
Monakino v. State, 2016 WL 6087683,

No. 01-14-00361-CR (Tex. App. - Houston [1st Dist.] 2016, no pet.) ..... 63
Morrissey v. Brewer, 408 U.S. 471 (1972) ......................................... 45, 46
v
Orion Reining Corp. v. UOP, 259 S.W.3d 749
(Tex. App. - Houston [1st Dist.] 2007, pet. denied) ................................. 57
Riordan v. State, 2017 WL 3378889 (Tex. App. - Austin 2017, no pet.) .. 7
Roderick v. State, 494 S.W.3d 868

(Tex. App. - Houston [14th Dist.] 2016, no pet.) ..................................... 17
Rodriguez v. State, 819 S.W.2d 871 (Tex. Crim. App. 1991) .................... 7
Rogers v. State, 2011 WL 7290492

(Tex. App. - Houston [14th Dist.] 2011, no pet.) .................................... 62
Rubino v. State, 2017 WL 1953275

(Tex. App. - Beaumont 2017, no pet.) ..................................................... 18
State v. Medina, 2017 WL 4657500

(Tex. App. - San Antonio 2017, no pet.) .................................................. 64
State v. Moreno, 297 S.W.3d 512

(Tex. App. - Houston [14th Dist.] 2009, pet. ref'd).................................. 64
State v. Webb, 244 S.W.3d 543

(Tex. App. - Houston [1st Dist.] 2007, no pet.) ....................................... 63
State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013) ...................... 64
Tear v. State, 74 S.W.3d 555 (Tex. App. - Dallas 2002, pet. ref'd.) .......... 7
United States v. Dehilinger, 740 F.3d 315 (4th Cir. 2014) ..................... 14
United States v. Mett, 65 F.3d 1531 (9th Cir. 1995) ............................... 13
Wilkins v. Davis, 832 F.3d 547 (5th Cir. 2016) ....................................... 14
vi
Williams v. Ludwick, 761 F.3d 841 (8th Cir. 2014) ................................ 14
Youkers v. State, 400 S.W.3d 200

(Tex. App. - Dallas 2013, pet. ref'd.)........................................................ 49
Codes and Rules
Tex. Code Crim Proc., Art. 38.071 .................................................... 10, 64
Tex. R. App. P. 11 ....................................................................................... i
Tex. R. App. P. 21.3(h)............................................................................. 64
Tex. R. Civ. Proc. 18(b) ............................................................................ 45
Tex. R. Civ. P. 60 ..................................................................................... 57
vii
SUMMARY OF THE ARGUMENT
In the State Prosecuting Attorney's Amicus Brief, the following is
stated concerning the ineffective assistance allegation in this case: "The
habeas proceedings in the trial court have been remarkable and highly
unusual." (p. 10). In fact, throughout this writ proceeding, Kelley's Writ
Attorney and the District Attorney have interfered and impeded trial
counsel's attempt to respond to the ineffective assistance allegations.
These efforts by the attorneys are certainly remarkable and highly
unusual. Nevertheless, even with this interference, the record before the
court shows that Cummings was not ineffective and had no conflict of
interest in her representation of Kelley at trial.
Moreover, the record does show that Kelley did receive ineffective
assistance, but not from Patricia Cummings. Rather Kelley’s current writ
attorney, Keith Hampton, was ineffective in his representation of Kelley
on his motion for new trial. Yet, Hampton had Kelley sign a waiver of the
issue of Hampton’s own ineffectiveness. It is particularly disturbing that
Hampton had his client waive a good claim of ineffective assistance
against himself and, instead pursued frivolous claims of ineffectiveness
against Cummings.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 1
ISSUE I
Patricia Cummings did not provide ineffective assistance to Kelley.
ARGUMENT
Although the ineffective assistance arguments involving Patricia
Cummings have changed over time, in their current iteration, they are
the following:
1. That the evidence at trial was legally insufficient because the child
did not make an in-court identification of Kelley as his abuser and a
reversal by the Court of Appeals on this basis was a certainty. Therefore,
it was ineffective for Cummings to negotiate a deal with the prosecution
for the minimum sentence, in exchange for waiving appeal. And that
Cummings was ineffective in this regard despite the fact that she ensured
that the waiver did not also waive the filing of a motion for new trial and
the sufficiency of the evidence could have been challenged on a motion
for new trial.
2. That Cummings was ineffective in presenting a defense that the
abuse did not happen at all, despite the fact that she had strong evidence
supporting that defense. That instead, Cummings should have conceded
that the abuse happened and instead presented a defense that the child
was confused over who abused him, and it was someone other than
Kelley. Or in the alternative, Cummings should have presented to the
jury two totally inconsistent defenses: that there was no abuse or that
there was abuse but it was done by someone else. And that Cummings’
decision to present the strong defense that the abuse did not happen
instead of the weak (and actually non-existent) defense of confusion by
the child as to who abused him was a result of a conflict of interest.
In order for the Court of Criminal Appeals to adopt the trial court's
findings, it will be necessary to change the law in the following significant
ways:
1. The court would need to find that an in-court identification of a
defendant by a child is required in a child sexual assault case in order for
the evidence to be legally sufficient. The court would be required to
overrule the case law that states identity can be proven by circumstantial
evidence.
2. The court would need to overrule the case law stating that allegedly
improperly admitted evidence is still considered as part of a sufficiency
of the evidence analysis.
3. The court would need to overrule recent case law that stated that a
waiver of appeal does not waive the right to file a motion for new trial.
4. The court would need to significantly broaden the definition of an
actual conflict of interest and state that a lawyer has an actual conflict of
interest if he has a former client, who has a relative, and the relative is
someone who the lawyer could accuse of committing the offense as part
of a blame another guy strategy.
5. The court would need to significantly broaden the definition of
actual conflict to encompass a situation where the lawyer has a former
client, who he represented on an unrelated matter many years ago, who
may have been around the child victim in a child sex assault case, who
the lawyer could accuse of committing the crime, even though there is no
evidence he was involved.
6. The court would have to modify the law to conclude that if there is
a claim of a conflict of interest, it does not matter whether the conflict
actually affected, changed or altered the defense presented. The court
would need to overrule the cases that require a showing that a conflict
actually colored or affected the representation.
Background of Case
Kelley was indicted on two separate charges of super aggravated
sexual assault of a child, alleging that he sexually assaulted two four year
old boys. The stories told by the children were fantastical and
inconsistent and Cummings concluded the best defense was an argument
that these four year old children were unreliable as witnesses and
therefore there was insufficient proof that the children were abused.
Cummings presented a strong defense, including an expert witness who
dissected the problems with the children’s stories and explained why
they may not have been abused at all. The result was the jury found
Kelley not guilty on the case of one of the children. However, he was
found guilty on the case regarding the other child.
As a result of the guilty verdict, Kelley was facing a minimum of 25
years to a maximum sentence of life in prison. Cummings and her co-
counsel negotiated with the prosecutors for an agreed minimum sentence
of 25 years in prison. In exchange, Kelley was required to waive his right
to appeal.
During the trial, Cummings had consulted with Keith Hampton on
legal issues and immediately referred the case to him for filing of a
motion for new trial. Although the agreement with the prosecutor waived
Kelley’s right to appeal, Cummings specifically ensured that he did not
waive his right to file a motion for new trial or an application for writ of
habeas corpus . The reason Cummings was focused on ensuring that the
agreement did not mention a motion for new trial in the waiver was that
she was aware that a few weeks before the trial, the Court of Criminal
Appeals had issued Lundgren v. State, 434 S.W.3d 594 (Tex. Crim. App.
2014). In Lundgren, the court held that a waiver of appeal did not waive
a motion for new trial. Thus, by preserving Kelley’s right to file a motion
for new trial, Cummings knew that his post-conviction lawyer, Keith
Hampton, would still have an opportunity to raise trial errors and other
matters in a motion for new trial and, if necessary, appeal the denial of
the motion. In fact, Hampton did file a motion for new trial, which was
denied, and unsuccessfully appealed the denial to the Court of Appeals.
Waiver of Appeal
The trial court found ineffective assistance based on Cummings
negotiating a deal for Kelley to receive the minimum sentence in
exchange for waiving appeal. The problems with these findings are:
1. The trial court found that an in-court identification of the defendant
by a child is absolutely required in a child sex case, and without this, the
evidence is legally insufficient. This is contrary to a long line of cases
that state identity can be proven through circumstantial evidence, the
testimony of a child is not even required, and the case can be proven
through an outcry witness alone. See, Tear v. State, 74 S.W.3d 555 (Tex.
App. - Dallas 2002, pet. ref'd.); Eubanks v. State, 326 S.W.3d 231 (Tex.
App. Houston [1st Dist.] 2010, pet. ref'd.); Rodriguez v. State, 819 S.W.2d
871 (Tex. Crim. App. 1991); Riordan v. State, 2017 WL 3378889 (Tex.
App. - Austin 2017, no pet.); Cruz v. State, 2006 WL 3234158 (Tex. App.
- El Paso 2006, no pet.); Macias v. State, 2002 WL 31569002 (Tex. App. -
Dallas 2002, no pet.) (not designated for publication); Creech v. State, 718
S.W.2d 89 (Tex. App. - El Paso 1986, no pet.). Here, the child testified by
closed-circuit TV. When the prosecutor attempted to bring him into the
courtroom, he had an emotional meltdown and refused to come in. In a
hearing afterwards, the defense stated that there was no contention that
the child was not referring to Kelley, when he referred to Greg, and that
Kelley knew the child.
At trial, multiple witnesses, including Greg himself, testified that
“Greg” was the Greg Kelley who lived and/or was at the daycare during
the time period when the sexual abuse occurred. H.M.’s mother
specifically testified that the only “Greg” that H.M. knew was Greg Kelley
(Trial Vol. 3 - 87). The following exchange then occurred between the
state and H.M’s mother:
Q. And do you see the person that you know as Greg Kelley in the
courtroom today?
A. Yes, I do.
Q. Can you point him out, identify him by an article of clothing he’s
wearing?
A. Black suit, striped tie, sitting over here at this table.
Q. Okay. I’m pointing to the defendant in the case, Greg Kelley.
A. Yes.
Q. Is that the person you know to be Greg?
A. Yes.
(Trial Vol. 3 -87). H.M.’s father also identified Greg Kelley in the
courtroom during his testimony (Trial Vol. 3 - 185). According to that
testimony, H.M.’s father also saw Greg Kelley interact with H.M. at the
daycare during the mid-afternoon hours on several occasions (Trial Vol.
3 - 187). Although H.M. did not identify Greg in the courtroom after he
testified via closed circuit TV, he did confirm in his testimony that he
knew someone named Greg and Greg was older and bigger than him and
he saw Greg at Shama’s house upstairs while H.M. was napping (Trial
Vol. 4 - 17 -19). H.M. then went on to describe how Greg sexually abused
him on two different occasions (Trial Vol. 4 - 19 - 33). After the state
rested, the defense called Shama McCarty, the daycare owner as a
witness. Shama testified that Greg lived in her home from the summer
of 2012 until the end of the school year in 2013 (Trial Vol. 6 - 201). Shama
also testified that Greg was present in the house when H.M. attended
daycare (Trial Vol. 6 - 203). Finally, as noted above, Greg testified that
he lived with Shama for a period of time and that, on occasion, he
interacted with H.M. while H.M. was attending Shama’s daycare (Trial
Vol. 7 - 119, 127).
Thus, the circumstantial evidence clearly established that Kelley
was the Greg being referred to and identity was not in issue. Contrary
to the conclusion of the trial court, the Court of Appeals would not have
found the evidence insufficient to establish that Kelley was the person
the child was referring to when he said Greg at day care had done these
things to him.1
2. The trial court found that the failure of the child to make an in-
court identification under Art. 38.071, Tex. Code Crim Proc. makes the
evidence insufficient. The essential holding is that, under Art. 38.071,
identity was an issue. In fact, identity was not an issue and therefore an
in-court identification was not statutorily required. Nevertheless, this is
an evidentiary question, and even if the failure of the child to make an
in-court identification affected the validity of his closed circuit TV
testimony, this testimony is still considered in a sufficiency analysis. 2
See, Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009) (Appellate
court must consider all evidence, even improperly admitted evidence, in
conducting a sufficiency analysis).
11
The State Prosecuting Attorney agreed that the evidence was legally sufficient in
their amicus brief. In that brief, the State Prosecuting Attorney stated, in fn. 19 :
"None of the so-called deficiencies listed by the trial court undermine the fact that
the evidence was legally sufficient to support the jury's verdict." This directly
contradicts the trial court's findings.
2
The amicus brief filed by the State Prosecuting Attorney also noted in fn. 19, that
"Compliance with Tex. Code Crim. Proc. art. 38.071 does not affect the Jackson v.
Virginia legal sufficiency of the evidence." This also directly refutes the trial court's
findings.
3. Although it was brought to the trial court’s attention that a
challenge to the sufficiency of the evidence could have been raised on a
motion for new trial, the trial court refused to address or consider that.3
Nevertheless, even if there was some argument to be made as to the
sufficiency of the evidence (which there is not), Cummings preserved
Kelley’s right to make that argument on a motion for new trial, and, if
necessary, appeal the denial to the Court of Appeals. By ignoring this
undisputed fact, the trial court is failing to properly apply the law on
ineffective assistance of counsel. There can be no prejudice from the
waiver of appeal since Kelley had the right to raise this same issue on a
motion for new trial but his lawyer at that time (Keith Hampton) failed
to raise it.4
Additionally, an affidavit from Cummings discussed the
negotiations for a minimum sentence for Kelley and said:
3
Affidavits from Richard E. Wetzel and John Jasuta stated this. These affidavits are
attached to this amicus brief.
4
Cummings filed a document styled Patricia Cummings' Objection to Jointly
Stipulated Findings of Fact, Conclusions of Law and Recommendation As to Ground
Four on August 23, 2017, providing the trial court the legal authority that showed
the findings signed on August 22, 2017, relating to this issue, were directly contrary
to the law. Nevertheless, on December 18, 2017, she reasserted these legally
invalid findings.
". . . I also knew the Texas Court of Criminal Appeals
had recently decided the case of Lundgren v. State, 434
S.W.2d 594 (Tex. Crim. App. June 25, 2014), where Judge
Hervey, writing for a unanimous court, held that a
defendant's waiver of right to appeal does not include the
waiver of right to file a motion for new trial. Given the fact
that the opinion was so recent, I was fairly confident that the
state was unaware of the decision. Armed with this
knowledge, I then began to specifically and strategically
explore the option of Greg agreeing to waive his appeal in
exchange for the minimum sentence on both counts to run
concurrent.
Some of the steps I took to explore the "waiver of appeal"
option included consulting not only my co-counsel but also
outside counsel who specialized in appellate and post
conviction work. In particular, I spoke at length with Greg's
current attorney, Keith Hampton. Hampton was a logical
choice to me because in addition to his legal specialization, I
had also consulted with him about various legal issues and
the facts of the case both before and during the trial. During
a telephone conversation with Hampton, I informed him of the
Lundgren decision and he and I dissected the legal appellate
viability of various issues raised during the trial such as the
sufficiency of the evidence, competency of the child witness,
spoliation of evidence, closed circuit testimony and the
constitutionality of super aggravated sexual assault as
applied in Greg's case (i.e., whether a minimum 25 year day-
for-day sentence violated Miller v. Alabama because there
was a good chance that Greg was 17 years old when the
offenses occurred). At the conclusion of our conversation,
Hampton advised that a waiver of appeal in exchange for the
minimum sentence made sense due to the inherent risk of the
jury assessing a longer sentence and also because Greg would
still be able to file a motion for new trial. And I believed if the
motion for new trial was denied, Greg could appeal the denial
and then if the appeal was denied, Greg could file a Petition
for Discretionary Review and then if the Petition for
Discretionary Review was denied, Greg could file a post
conviction writ of habeas corpus (all of which was ultimately
done by Hampton in this case once he became Greg's
attorney).
The evidence before the court shows, without any question, that
there was no ineffective assistance in Cummings' negotiating a deal for
Kelley to receive the minimum sentence in exchange for waiving appeal.
The trial court's findings and conclusions are contrary to both the facts
and law and should be rejected.
Conflict of Interest Claim
The trial court also erroneously found that Cummings had a conflict
of interest. Under Cuyler v. Sullivan, 446 U.S. 335 (1980) and Acosta v.
State, 233 S.W.3d 349 (Tex. Crim. App. 2007), in order to prevail on a
claim of ineffective assistance of counsel due to a conflict of interest, the
defendant must show that his attorney had an actual (not potential)
conflict of interest and that the conflict adversely affected or colored
counsel's actions during trial. See, Barbaro v. State, 115 S.W.3d 799 (Tex.
App. - Amarillo 2003, pet. ref'd) (no conflict of interest based on counsel
having represented state's witness on unrelated matters ten years
earlier); United States v. Mett, 65 F.3d 1531, 1535 (9th Cir. 1995) (adverse
effect in the Cuyler sense is one that significantly worsens counsel's
representation of the client before the court or in negotiations with the
government); Wilkins v. Davis, 832 F.3d 547 (5th Cir. 2016) (defense
counsel's prior representation of individual who was later murdered by
present defendant did not create conflict of interest where counsel's
representation was unequivocally terminated 20 years earlier and facts
and issues of prior representation had no relation to representation of
defendant); Williams v. Ludwick, 761 F.3d 841 (8th Cir. 2014) ( no
adverse effect from alleged conflict of interest when suggested defense
that was not pursued was not objectively reasonable); United States v.
Dehilinger, 740 F.3d 315 (4th Cir. 2014) (defense counsel's decision not
to call former client and others as witnesses in trial was matter of
reasonable trial strategy, thus alleged conflict could not have had an
adverse effect on counsel's representation).
Applying the applicable law to the trial court's findings show the
following deficiencies in the findings:
1. The trial court found that Cummings had a conflict of interest in
representing Kelley because she had previously (ending seven years
earlier) represented members of Jonathan McCarty’s family on unrelated
criminal cases. 5 The trial court found that a defense that McCarty was
the one who abused the children could have, and should have been,
presented. The proposed defense would have been that these two
children who said Greg abused them, really meant that Jonathan abused
them, and were confusing Kelley and McCarty. The trial court's findings
contend that this would have been a better defense than the one
presented despite the fact that:
a. Both children clearly knew who Greg was and who Jonathan
was and there was no evidence that they had them confused.
b. Both children’s parents identified Kelley as the Greg from day
care their children knew. In particular, the child on which the jury
returned a guilty verdict, clearly knew Greg, as shown by the testimony
at trial, as well as Kelley’s own testimony.
5
An affidavit from Cummings stated:
"I have never represented Johnathan McCarty. Early during my

representation, Kelley and I discussed the fact that I had represented
two of Shama's sons - Nimesh and Minusha. During at least one of those
discussions, Kelley informed me that neither son was living in Shama's
home. I do not recall talking to Kelley about Shama's other son Dinusha.
I do recall however Kelley specifically saying that Shama referred him
to me because she thought I was a "great lawyer." My understanding
was that Kelley (and his family) hired me precisely for that reason.
c. The trial court's findings rely on the fact that in football head
shots of Kelley and McCarty, their faces look similar and some people
said they had similar facial features. However, the trial court's findings
obscure and ignore the fact that Kelley was 6'2" and McCarty was 5'4".
2. The trial court's findings that Cummings had an actual conflict are
directly contrary to the law. Ex Parte McFarland, 163 S.W.3d 743 (Tex.
Crim. App. 2005) explains what is meant by an actual conflict. In
McFarland, the defense lawyer had previously represented an
accomplice in the same murder on trial and the court found no conflict of
interest. Here, Jonathan McCarty was not an accomplice in the case of
conviction, was not charged, and, as to the child the conviction was based
on, his name was never mentioned. Cummings had never represented
McCarty and did not know him.
3. The fall back theory of conflict, and the one raised for the first time
on December 14, 2017, is that Cummings had represented Jonathan
McCarty’s brother many years ago and she could have argued to the jury
that McCarty’s brother did it. However, there was, and apparently still
is, not one iota of evidence that McCarty’s brother had anything to do
with this. Greg Kelley himself testified in these writ proceedings that he
never saw McCarty's brother, Nimesh, in the house when he was there
and that the brother was not living there. (Kelley testimony, 11-01-2017,
pp. 19-21). This is consistent with what Cummings learned in her
investigation, which is that this brother was not living in the house.
Judge King’s findings are essentially, that since Cummings previously
represented the brother years earlier on an unrelated matter, and since
she could have argued to the jury that he was the one who abused the
children, she had a conflict. The problems with this contention by Judge
King are:
a. There is no evidence to support an argument that the brother
did it.6
b. Since there is no evidence, under the case law, it is doubtful
that this defense would even be allowed. See Roderick v. State, 494
S.W.3d 868 (Tex. App. - Houston [14th Dist.] 2016, no pet.); Figueroa v.
State, 2017 WL 2289031 (Tex. App. - Dallas 2017, no pet.) (not designated
6
In his Memorandum in Support of Greg Kelley's claims for Relief, Kelley's writ
lawyer, Keith Hampton, makes the incredible assertion that "the lead defense
attorney, Patricia Cummings, operated under an actual conflict of interest when she
undertook representation of a client accused of a crime more likely committed by
her former client, Nimesh Dissanayaka." (p. 34) Of course, there is absolutely no
evidence to support counsel's statement.
for publication); Ex parte Huddlestun, 505 S.W.3d 646 (Tex. App. -
Texarkana 2016, pet. ref’d); Martinez v. State, 212 S.W.3d 411 (Tex. App.
- Austin 2006, pet. ref’d); Rubino v. State, 2017 WL 1953275 (Tex. App. -
Beaumont 2017, no pet.).7
4. The trial court finds that counsel’s reasons for pursuing a particular
defense is not relevant if the ineffective assistance allegation is argued
as a conflict of interest, even though the law requires a showing that the
supposed conflict affected, or colored the representation. Of course, the
court cannot determine if representation was colored or affected without
knowing why defense counsel took the actions taken at trial.
5. Thus, the contention that Cummings should have argued that
Jonathan McCarty or his brother, and not Kelley, abused these children,
and that the children are confused on who their abuser is, fails based on
lack of evidence to support the argument. Such an argument would have
been totally unconvincing. Cummings knew this because, unlike Dick,
Hampton or the trial court, she had spent time in person interviewing
7
This same case law would have limited the ability to argue that Jonathan McCarty
is the one who did this and not Kelley.
McCarty and knew that, after seeing him and Kelley in person,8 the jury
would never have believed the children would confuse them.
6. The most important reason it would have been a mistake for
Cummings to argue mistaken identity as a defense is the fact that in
order to argue that McCarty or his brother was the real abuser, and not
Kelley, Cummings would have had to agree with the prosecution that the
children were actually abused. Thus, she would have waived the strong
defense that there was no abuse at all. It would be highly ineffective to
waive a strong defense (that of no abuse at all) and rely on a weak defense
of someone else did it, when there was no evidence to support that
defense. In fact, had Cummings presented the defense the trial court's
findings contend should have been presented, the result would have been
Kelley being convicted on both cases, instead of being found not guilty on
one.
An affidavit from Cummings addressed this issue as follows:
"My legal team (myself, my co-counsel and an

investigator) actively took steps to investigate and ascertain
whether pursuing McCarty as the perpetrator was a valid
(i.e., winnable) theory of defense for Kelley. For instance, we
interviewed McCarty three times and we interviewed many
8
No competent prosecutor would have allowed this argument to be made without
bringing McCarty into the courtroom.
other witnesses in an effort to gather information about
McCarty.
...
Ultimately, after conducting an investigation, reviewing
discovery, seeking expert assistance, and consulting
extensively with Kelley, I decided (with Kelley's instructions
and approval) it was not in Kelley's best interest to try the
case on the theory that McCarty committed the crimes. And,
given the many problems with the interviews of the children,
the theory of false accusations appeared to have a greater
likelihood of success for Kelley at trial.
Additionally, during his testimony on this writ proceeding,
Cummings' pretrial co-counsel, James McDermott testified that
Cummings thoroughly considered whether an argument blaming
McCarty would be appropriate. (McDermott testimony, 10-27-2017, p.
33).
This testimony from McDermott directly contradicts any claim that
Cummings did not investigate and consider whether an argument that
McCarty committed the offenses would be fruitful. As to any potential
claim that other members of the McCarty family may have committed
the offense, there is absolutely no evidence to support such an argument
so clearly Cummings and McDermott would not have focused on this.
Nevertheless, the trial court has overlooked McDermott's testimony in
the findings of fact.
7. The trial evidence shows that Cummings presented a strong
defense that the child's claims of being sexually abused at all were
questionable. The trial evidence showed the following:
According to H.M.'s mother, H.M. was going to the restroom when
he told her that he wished his pee pee was big like Greg’s (Trial Vol. 3 -
86). In response to the outcry, H.M.’s mother asked her son how he knew
Greg’s pee pee was big and H.M. responded by saying “because he made
me stick it in my mouth” (Trial Vol. 3 - 89). Then in response to further
questioning, H.M. said that happened twice and on another occasion
Greg tried to lick his pee pee but H.M. stopped him (Trial Vol. 3 - 89,
90). Then over the next several days, H.M.’s mother and father
questioned H.M. multiple times about the alleged abuse. Neither parent
reported the abuse to law enforcement until approximately a week later.
(Trial Vol. 3 - 98, 180, 204 & Vol. 5 -272, 273).
After receiving the report of sexual abuse, the Cedar Park Police
Department scheduled a forensic interview of the child at the Williamson
County Children’s Advocacy Center (Trial Vol. 5 - 50). Then assuming
the child was telling the truth and while using inappropriate interview
techniques, the forensic interviewer interviewed H.M. (Trial Vol. 3 - 267
& Vol. 6 - 77 - 116). The forensic interviewer did not appear to be
qualified to conduct the interview. She conducted a semi-structured
interview rather than a structured interview, which according to the
defense expert suggested confirmation bias because "what you expect to
see influences what you get" and the interviewer actually testified that
she assumed the child was telling the truth." (Trial Vol. 6 - 115; Trial
Vol. 3 - 267). During that interview, H.M. told the interviewer that “I’m
supposed to tell the truth, but I cannot tell it” and “I cannot tell anybody
what happened” yet the interviewer failed to follow up on either
statement nor did she seek clarification as to what H.M. meant by those
statements (SX 7, Trial Vol. 3 - 266). Then although H.M. did make an
outcry against Greg during the interview, the outcry lacked any sensory
details regarding the alleged abuse (SX 7, Trial Vol. 3 - 160). H.M. also
made various statements that were verifiably untrue such as his mother
walked in the room while Greg had his penis in H.M.’s mouth and that a
physical fight then occurred between him and Greg and Greg and his
mother (SX 7, Trial Vol. 3 - 268, 124-125, & 218). The child also acted
out this fight. (Trial Vol. 3 - 155, SX 7 and 7a; Trial Vol 3 - 67; Trial Vol
6 - 106). Prior to trial, H.M. met with the prosecutors on multiple
occasions (at least twice a month from January 2014 until July 2014) to
prepare for his testimony and during two of those meetings, he was
actually shown the Children’s Advocacy Center video recording of his
interview (Trial Vol. 3 - 103, 104 & Trial Vol. 6 - 32). So, by the time of
his testimony, H.M.’s version of events evolved significantly (Trial Vol. 4
- 12). Moreover, experts for both the state and the defense testified that
false accusations do occur in child sexual abuse cases and that young
children in the same age group as H.M. are the most susceptible to false
accusations and/or false memories of abuse (Trial Vol. 5 - 236 -248 & Vol.
6 - 77 - 116). Both experts also agreed that the existence of certain factors
can increase the likelihood of a false accusation - factors such as multiple
interviews and the techniques utilized during the interviews. (Trial Vol.
6 - 77). The state's expert even said that false accusations have occurred
and they have sent innocent people to prison. (Trial Vol. 5 - 237).
The defense expert called to testify by Cummings was Dr. Stephen
Thorne. During trial, Dr. Thorne testified generally as an expert in child
sexual abuse allegations and specifically about false allegations and false
memories in the context of those type of allegations (Trial Vol. 6 - 69, 77).
According to his testimony, there were significant red flags present in the
case that increased the likelihood that both children were susceptible to
false allegations and false memories. (Trial Vol. 6 - 77). Dr. Thorne then
specifically discussed the presence and absence of various factors that
raised serious questions as to whether either child was sexually abused.
Because both children in Kelley's case were 4 years old when they made
outcries of abuse, Dr. Thorne testified they fell into the category of
preschool children who, studies have shown, are the most vulnerable to
false memories and false allegations. (Trial Vol. 6 - 85). Then, Dr. Thorne
discussed how multiple interviews, power differentials and
contamination cause preschool children who experience a mundane event
to turn that event into something fantastical that simply never occurred.
(Trial Vol. 6 - 85, 89). He then went on to explain how research and
studies have also shown that very young children, in particular, can very
easily and very quickly create false memories of sexual abuse. (Trial Vol.
6 - 89). Finally, Dr. Thorne analyzed interview techniques, similar to the
ones utilized by the forensic interviewer and Detective Dailey, and
concluded that none of them were consistent with best practices in the
field. (Trial Vol. 6 - 101-107, 112-117). And just like many of the other
factors present in the case, failure to follow best practices increases the
chances of false allegations and false memories.
Certainly any contention or finding that Cummings did not present
a strong defense is belied by a review of this evidence.
8. In the findings on the conflict issue, the trial court makes several
other legally and factually incorrect conclusions. These conclusions are:
a. That if there is a former client, or a former client’s relative,
that counsel could accuse of the crime, regardless of whether there is
evidence to support the accusation, this is an automatic conflict of
interest, regardless of any other facts.
b. That a defense of someone else did it is always a better
defense than a defense of the abuse did not happen, and it is ineffective
to not prioritize the someone else did it defense, regardless of how weak
that defense is and how strong the defense of it did not happen is.
c. That the language in the conflict of interest cases that require
the Applicant to demonstrate that some plausible alternative strategy or
tactic might have been pursued does not require a showing that the
alternative strategy or tactic was better than the one actually pursued.
According to the trial court's findings, it is irrelevant that the defense
presented was clearly a stronger defense than the defense not presented.
9. The first child said that Greg abused him alone and made no
mention of Johnathan. The second child said Johnathan was present
when Greg abused him and that Johnathan gave the child lotion which
Greg had the child rub on his “pee-pee.” The contention of the trial court,
Dick and Hampton that Cummings should have argued the children were
confusing Kelley with McCarty is particularly nonsensical when these
facts are considered. The argument would have needed to be that the
children were telling an accurate story of being abused, but were just
confused on who abused them. And that both children meant Johnathan
when they said Greg. The trial court and the lawyers never explain how
Cummings should have addressed the fact that the second child said two
people were involved and knew that Johnathan and Greg were two
different people. They also fail to explain how Cummings should have
argued that the two people identified by the second child did not include
Greg. Who was she supposed to say the second person was? Was it an
unknown, unnamed stranger? Was it a fantasy? Or, are they seriously
contending the two people involved were Johnathan and his brother?
The Trial Court's Credibility Findings
Additional problems arise from the trial court's credibility findings.
At one point in the findings, the trial court finds Greg Kelley to be
credible and Cummings not credible when their affidavits conflict. This
finding is clearly not supported by the record. Additionally, the following
should be considered in assessing the legitimacy of these findings:
1. The trial court refused to consider the affidavit of Cummings pre-
trial co-counsel, James McDermott, which stated the same thing
Cummings affidavit said about discussions with Kelley concerning
McCarty. The trial court does not explain her refusal to consider this
affidavit or address the fact that McDermott completely corroborates
Cummings’ affidavit and contradicts that of Kelley.
McDermott's affidavit is attached to this amicus brief and states, in
pertinent part, the following:
"Did I ever consider the theory that Johnathan could

have committed the offenses instead of Greg, and why or why
not?
I started almost immediately with the theory that Johnathan

could have committed the offenses based on the physical
resemblance between him and Greg, and the fact that the
allegations arose from events at his home. Patricia and I
talked about that quite a bit. In the short time I worked on
the case, I did not find that theory to be the most fruitful for
a combination of reasons.
I reviewed all paper discovery, I reviewed the recorded

interviews of [L.M.] and [H.M.] twice, I sat with Greg in
multiple meeting, and I interviewed Greg alone once.
[L.M.] was able to distinguish between Greg and Johnathan

clearly. He knew the differences between them. His telling
had concrete details but had indications of coaching and could
be attached as having the details fed by an adult.
[H.M.] had no concrete details and elements of his interview

were verifiably untrue.
Greg would not cooperate with any questions about

Johnathan, any investigation of Johnathan, and defended
Johnathan against any theories presented. He gave us
nothing to investigate, and I was not aware of any rumors
about Johnathan.
Greg's individual interview with me caused concerns on my

part about whether he was telling me the truth. I discussed
sexual history, social history, and family history with him. At
best, he was evasive. Often, I felt like he was just telling me
what he thought I wanted to hear. My relationship with him
led me to believe that a strategy of attacking the allegations
themselves as false would have a higher chance of success
than relying on Greg to offer an alternative to the jury that
the allegations were true but committed by Johnathan
instead of Greg with no evidence to substantiate the attack on
Johnathan.
2. The trial court also took other unusual actions in this case, such as
taking some testimony in private proceedings, closing the courtroom to
the public and the press.
Comments on Specific Findings of Fact
The trial court's findings are not only not supported by the record,
they are, for the most part, directly contradicted by the record. For
instance,
3.5.1.3 The trial court states that Hampton denied discussing the
potential issues on appeal with Cummings prior to Kelley waiving
appeal. Hampton stated that Cummings only asked him if he had ever
entered into an agreement to waive appeal in order to receive an agreed
sentence. Of course, the only reason Cummings had involved Hampton
in the case was for him to handle the legal issues that could be raised on
a motion for new trial, appeal or writ application. Hampton is not a trial
lawyer so Cummings would have no reason to ask him if he had ever
entered into this type of agreement since she obviously knew he had not.
The only reason for her to talk to Hampton at all was to get his input on
potential legal issues for an appeal.
3.5.1.13 The trial court states that trial counsel did not adequately
inform Applicant of his appellate options to allow Applicant to make a
fully informed waiver of his right to appeal. This statement is obviously
not supported by the record. And, the only thing that the lawyers or trial
judge claim that Cummings should have told Applicant was that the
evidence was legally insufficient and the case would ultimately be
reversed on appeal. Of course, if Cummings had said that, she would
have been both factually and legally wrong and Kelley would actually
have a legitimate claim against her for ineffective assistance of counsel. 9
Moreover, Marjorie Bachman testified at the writ hearing that she
initiated the idea of negotiating a deal for the minimum sentence in
exchange for the appeal waiver. Bachman testified:
"I said to Patricia, I said, you know, this has been from a legal
standpoint pretty much an error free trial. . . .
And kind of looking at the whole situation we didn't see
anything that would be reversible on direct appeal, which is a
big part of the reason we advised him to waive that."
(Bachman Testimony, 10-27-2017, p. 9)
Bachman also testified regarding discussions with Cummings
about Kelley waiving appeal, as follows:
"I know that I had advised her to advise him that was what
we should do." (Bachman Testimony, 10-27-2017, p. 12)
Additionally, Bachman gave the following testimony:
9
Even the trial court's findings acknowledge that trial co-counsel, Marjorie
Bachman, did not think they had a legitimate claim of insufficiency of the evidence
Bachman testified that, "they determined there would be little to appeal." (3.5.1.4).
"Q Okay. Do you ever -- do you have any recollection of Mr.
Kelley asking what his chances were on appeal, what the
chances would be of him winning an appeal?
A I do recall a conversation about that.
Q Tell me what you remember about that.
A I remember telling him they were extremely low in my
opinion." (Bachman Testimony, 10-27-2017, p. 9)
3.5.1.16 The trial court finds that the evidence was legally and
statutorily insufficient to support Applicant's conviction. This finding is
both factually incorrect and is directly contrary to the law. 10
3.5.2.1 The trial court's claim that Cummings had a personal
relationship with the McCarty family ignores the substantial evidence
that shows that Cummings did not have any sort of friendship or personal
relationship with them. Instead, she had only represented some
members of the family on some unrelated criminal cases ending years
earlier. Even Kelley himself admitted this in his own testimony when he
said this regarding Cummings and Shama McCarty:
"Well, I mean, they didn't go out for lunch or anything, so I

wouldn't say they were close close, but I also didn't see them
talk on the phone much. So I just don't really know how to
answer that. I mean, I would think that is probably more on
the distance side, but still connected, I guess you could say."
(Kelley Testimony, 11-01-2017, p. 26)
Bachman agreed with Cummings that there was no reversible error, including
10
sufficiency of the evidence issues.
3.5.2.6 The trial court finds that one of Johnathan McCarty's
brothers had a prior sex related adjudication. However, this was for him
touching the breast of a high school girl, while he was in high school. In
this same finding, the trial court suggests that this prior incident was
relevant to a potential alternative perpetrator defense strategy. Of
course, there was absolutely no evidence that this person had anything
at all to do with this alleged offense. The trial court does not explain how
it would have been admissible evidence to tell the jury that someone who
may have been in the house where the children were on occasion, but did
not live there, had been previously adjudicated for touching the breast of
a high school girl without her permission.
3.5.2.9 The trial court incorrectly states that the nature of the
allegation against Kelley was consistent with the nature of at least one
of the matters in which she represented members of the McCarty family.
This is not correct. Cummings had represented the member of the
McCarty family for touching the breast of a high school girl when he was
in high school. This is hardly consistent with what Kelley was accused
of.
3.5.2.9 The trial court states that Cummings acknowledged
similarities in appearance between McCarty and Kelley but contradicts
herself by stating that size difference foreclosed an argument that the
child confused them. Of course, the child looked at their whole bodies,
not just their faces (in football pictures). A four year old child would know
the difference between a 5'4" person and a 6'2" person.
3.5.2.9 The trial court states that there is a contradiction between
Cummings relying on the weakness of the accusations and the
incompetence of the children as witnesses, yet concluding that a defense
of mistaken identity was not a good defense. The evidence presented,
particularly the expert testimony, showed the suggestibility and magical
thinking existent in four year olds. This evidence went directly to the
reliability of their report of sexual abuse. It is well established in the
literature and by common sense that four year olds are not incompetent
to tell one person from another, particularly when they know both
persons.
3.5.2.9 The trial court incorrectly claims that Cummings did not
fully investigate the case and consider whether someone else could have
done this. Both Cummings' affidavit, as well as her co-counsel, James
McDermott's affidavit, confirm that they did investigate this. This
finding is directly contradicted by the evidence and can only be made by
ignoring the substantial evidence than contradicts it.
3.5.2.13 The trial court states that Cummings did not fully inform
Kelley of the number and nature of the prior representation of members
of the McCarty family. Of course, Kelley himself admits that he knew
Cummings had represented members of the McCarty family and that he
was referred to her by Shama McCarty. (Kelley Testimony, 11-01-2017,
p. 22).
3.5.2.17 The trial court finds that Cummings should have changed
her trial strategy based on an unrefuted claim by Kelley's girlfriend's
mother. Of course, Cummings had fully investigated the various
defenses that could be presented and arrived at the defense that gave
Kelley the best hope of an acquittal. It seems a bit odd to suggest that a
well thought out trial strategy should be abandoned because Kelley's
girlfriend's mother claims she suggested something different.
3.5.2.18 The trial court finds that Cummings told her investigator
not to investigate McCarty as a possible suspect. Of course, Cummings
and her co-counsel, McDermott, investigated McCarty themselves and
concluded that arguing that he did it was not a good defense. Moreover,
this investigator did conduct an investigation of McCarty and his
recollection about this is erroneous.
3.5.2.19 The trial court cites Bachman's testimony that if she had
known that one of Cummings' former clients had access to the child she
would have been duty bound to investigate whether he made a better
suspect. The trial court neglects to acknowledge that this very
investigation was conducted by Cummings before Bachman came into the
case and there was, and still is, no evidence the former client had any
contact with the child.
3.5.2.20 The trial court cites testimony from Bachman that had she
known that Johnathan McCarty's brother had a prior sex related case
she would have advised Cummings to change her defense strategy and
concede the abuse had occurred but argue that it was done by this other
person. Of course, the problem with this is that there was absolutely no
evidence that this other person had anything to do with this offense. If
Bachman had advised Cummings to change the defense strategy for this
reason, and Cummings taken her advice, then both Cummings and
Bachman would have been seriously ineffective.
3.5.2.21 The trial court states that Kelley believed that Cummings
was unwilling to pursue Johnathan McCarty as an alternative suspect
because of her relationship with the McCarty family. This testimony
from Kelley is directly contradicted by the affidavit of Cummings co-
counsel, McDermott that stated that he and Cummings investigated
McCarty and discussed him with Kelley.
3.5.2.23 The trial court finds Kelley's testimony to be credible and
reliable, but finds Cummings' testimony unreliable. However, the trial
court does not mention or acknowledge the affidavit of McDermott, which
corroborates Cummings and contradicts Kelley. The trial court also fails
to mention the various inconsistencies in Kelley's own affidavits and
testimony filed in the writ record.
3.5.2.24 The trial court finds that the reason Cummings did not
present a defense that the abuse actually occurred but was done by
McCarty was because she had loyalties to the McCarty family. The
record is directly and strongly contrary to this finding. It is clear that an
argument that McCarty had committed the abuse was not pursued
because it was a poor argument, not supported by the evidence, and
would have required Cummings to waive the best defense available - that
no abuse occurred.
3.5.2.25 The trial court states, "The Court finds that pursuit of an
alternative suspect in this case would have meant suggesting to the jury
that one of her former clients could have been the perpetrator." This
statement is confusing and difficult to understand. Is the trial court
suggesting that the alternate suspect that Cummings should have
pointed the finger at was McCarty's brother, since he was her former
client? If so, what evidence is the trial court suggesting could have been
used to point the finger at him? Since there does not appear to be any
evidence to present that McCarty's brother had anything to do with this,
it seems incumbent on the trial court to more fully explain how this
defense could have been pursued. And, since the bulk of the trial court's
findings focus on a claim that Johnathan McCarty should have been
presented as the person who committed the offense, then how does his
brother fit into this defense? Is the trial court suggesting that Cummings
should have presented them both as the likely perpetrators? Is the trial
court suggesting that it is inappropriate for a trial attorney to settle on
the best defense available to the jury and instead should just throw
everything against the wall and see what sticks? This approach is
precisely the opposite of what a good trial lawyer would do, yet the trial
court is suggesting that it was the appropriate approach for Cummings
to take in this case.
3.5.2.25 and 3.5.2.26 The trial court again misstates what the
record clearly shows by saying there is no plausible explanation for
Cummings not pursuing the alternative suspect defense, rather than the
defense she pursued. Of course, the record is absolutely clear that
Cummings fully considered all possible defenses and presented the best
defense available. Despite this, the trial court clings to the myth that the
best defense was to claim Johnathan did it, despite the fact that this
would be a defense that would be unsupported by the evidence and would
have resulted in Kelley being convicted of abusing both children, instead
of just one.
Comments on Specific Conclusions of Law
4.4.4. The trial court finds that applicant was not aware of the
claims that could have been brought on appeal. The claim that the trial
court refers to is the sufficiency of the evidence. Of course, the trial court
has misunderstood and misapplied the law on sufficiency of the evidence
so this conclusion is based on a mistake of law by the trial court.
Moreover, the record shows that both Cummings and her co-counsel,
Bachman gave Kelley advice about his chances of prevailing on appeal.
4.4.5. The trial court finds that a failure of the child to make an in-
court identification makes the evidence legally insufficient. In support of
this, the court cites three cases, dated 1940, 1951 and 1963. Cummings'
counsel has provided Judge King and this court modern era cases that
show that this conclusion is incorrect under current law.
4.4.9.8 The trial court finds that an alternative suspect defense was
facially plausible. However, the fact that something might be facially
plausible in a different case does not mean it is facially plausible in this
case. Moreover, something is certainly not facially plausible if it is a
weak defense and, in order to pursue it, defense counsel would be
required to waive a much stronger defense.
4.4.9.11 In this finding, the trial court questions Cummings' ethics
and suggest that she intentionally did not represent her client in the best
way possible. The entirety of these findings are untrue and unsupported
by the evidence. The trial court's conclusions here are based on the
erroneous belief that Cummings had a conflict which she did not and that
she presented the wrong defense, which is obviously an incorrect
conclusion.
4.4.9.16 The trial court finds that Cummings had a conflict of
interest. It is noteworthy that the trial court cites no law in this
conclusion. This is clearly because the law is directly contrary to the
conclusion reached.
4.4.49.17 The trial court finds that the reason that Cummings did
not undertake a strategy of claiming that Johnathan McCarty or his
brother committed the offense was that she had a conflict. However,
contrary to this statement, the record shows that there was no conflict
and that pursuing a strategy that someone else committed the offense
would have been precisely the wrong thing to do.
Conclusion On Trial Court's Findings
The findings and conclusions of the trial court are clearly not
supported by the facts or law and should be rejected by the Court of
Criminal Appeals.
ISSUE II
Response to State Prosecuting Attorney's recommendation of a
remand to allow Cummings to defend herself.
ARGUMENT
Right To Present A Defense
In the amicus brief filed by the State Prosecuting Attorney the
suggestion is made that the Court remand the Case to give Cummings a
full opportunity to defend herself. It is correct, as the State Prosecuting
Attorney noted, that the “proceedings in this case have been remarkable
and highly unusual.” (Amicus Brief of State Prosecuting Attorney, p. 10).
And the State Prosecuting Attorney is correct to recognize that there are
better ways to ensure a just result than that engaged in here.
Nevertheless, Cummings has made a Herculean effort, despite the
absence of adequate notice, to respond to the shifting allegations made
and the record before the court is therefore sufficient to find that there
was no ineffective assistance or conflict of interest.
However, if the Court is inclined to accept the State Prosecuting
Attorney's suggestion and remand the case, Cummings would ask that
the remand order contain instructions that allow her to fully participate
in the case in order to address the ineffective assistance allegations. This
would involve giving Cummings the right to confront and cross examine
witnesses, present her own testimony (beyond her own affidavits), and
present legal arguments to the court. If a remand involved nothing more
than the opportunity for Cummings to present another affidavit, then the
remand would not be particularly useful in further developing the record.
In assessing whether a remand is appropriate it is necessary to first
understand why the State Prosecuting Attorney has characterized the
proceedings in this case as “remarkable and highly unusual.” The reasons
for this characterization are:
1. Kelley’s Writ Attorney, the District Attorney and the trial
court have engaged in a continuing and concerted effort to present claims
and enter findings stating that Cummings was ineffective and had a
conflict of interest, while interfering, impeding and undermining her
attempt to present responses to the allegations. This is not something
that happens in a normal writ situation. 11
2. The trial court has entered findings submitted to her by
Kelley’s Writ Attorney and the District Attorney that are legally and
11
How remarkable and highly unusual this case is can be best understood by a
review of the in chambers conference held on August 3, 2017, between the
prosecutors, Kelley's Writ Attorney and the trial court where they openly discussed
ways of attacking Cummings while denying her the chance to defend herself.
factually incorrect. In entering these findings, the attorneys and trial
court:
a. Ignored and disregarded contrary evidence.
b. Refused to consider and apply controlling legal precedent.
c. Misconstrued the trial record.
This is certainly not a normal case where the trial court may have
made a simple legal error and the Court of Criminal Appeals should treat
it accordingly. 12
In fact, it is because of this “remarkable and highly unusual”
situation that a remand is not really necessary. Rather the record before
the court clearly refutes the trial court's findings. Nevertheless, it is also
because of this “remarkable and highly unusual” situation that a normal
remand would be inappropriate. If the court simply remanded the case
back to the same trial court who sanctioned the “remarkable and highly
unusual” actions previously engaged in , without taking strong measures
to alter the trial court's conduct, the result would likely be more of the
12
One explanation for the “remarkable and highly unusual” way that Williamson
County has handled the allegations against Cummings is her work as a member of
the Innocence Project Team that freed Michael Morton from his wrongful
Williamson County murder conviction. While Cummings has been universally
praised for this work, the one exception has been in Williamson County where, in
certain quarters, there exists anger and resentment towards Cummings.
same: the disregarding of Cummings' responses, ignoring of legal
precedent and a distortion of the record. Thus, if the court deems a
remand appropriate it will be necessary for the court to take strong action
to change the “remarkable and highly unusual” trajectory of this case.
This action must include providing Cummings the due process rights that
the State Prosecuting Attorney recognizes are necessary to protect a
lawyer accused of ineffective assistance. 13 In this case, based on the
“remarkable and highly unusual” way in which the trial court has
conducted these proceedings, this may require the court to take steps to
ensure that any proceedings going forward in regards to Cummings are
conducted by a fair and neutral judge. It is clear, based on the
“remarkable and highly unusual” actions taken by the current trial judge
that she cannot and will not act fairly and in accordance with the law in
dealing with the allegations against Cummings. Therefore, if the court
remands the case, one of the following two steps should be taken as part
of the remand: 1. The court should order the case reassigned to a different
13
"No finding of ineffective assistance, with its adverse professional and personal
collateral consequences, should be sustained until counsel has been afforded proper
due process." (Amicus Brief of State Prosecuting Attorney, p. 2).
district judge, or 2. Cummings should be granted legal status to pursue
a recusal motion herself. 14
In Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002), the
court stated, "Under our system of justice, the criminal defendant is
entitled to an opportunity to explain himself and present evidence on his
behalf. His counsel should ordinarily be accorded an opportunity to
explain her actions before being condemned as unprofessional and
incompetent."
What is meant by an "opportunity to explain himself and present
evidence on his behalf" is best illustrated by reference to case law
regarding what is constitutionally required in order to ensure a person
accused of a crime or some other legal transgression is afforded their due
process rights. In Morrissey v. Brewer, 408 U.S. 471 (1972), the court
stated:
"Whether any procedural protections are due depends on the

extent to which an individual will be condemned to suffer
grievous loss." 408 U.S. at 481.
14
Although the record on this has not been developed based on Cummings lacking
standing to file a recusal motion, there are substantial reasons, pre-existing Judge
King's involvement in this case, why Judge King’s attitude towards Cummings is so
“remarkable and highly unusual.” These reasons could form the basis of a
legitimate recusal motion under T. R. Civ. Proc. 18(b).
According to Morrissey, when procedural protections apply, due
process will generally require:
1. Written nature of the claim against the accused.
2. Disclosure of the evidence against the accused.
3. Opportunity to be heard in person and to present witnesses and
documentary evidence.
4. Right to confront and cross-examine adverse witnesses.
5. A neutral and detached hearing body.
The record before the court shows that these basic due process
rights were denied to Cummings.
In addition to the due process rights discussed in Morrissey, the
Sixth Amendment to the U. S. Constitution requires a "meaningful full
opportunity to present a complete defense." Holmes v. South Carolina,
547 U.S. 319 (2006). This is a right that should also apply to a lawyer
accused of ineffective assistance.
In this case, Kelley's Writ Attorney, Hampton, and the District
Attorney, Dick, with the concurrence of the trial court, have engaged in
the following conduct:
1. Making ineffective assistance allegations in secret, and having the
trial court sign findings without Cummings even knowing the allegations
had been made.
2. Presenting testimony in closed proceedings without Cummings
being allowed to know what testimony had been presented.
3. Placing affidavits into evidence and denying Cummings the
opportunity to see and respond to the affidavits.
4. Refusing to accept evidence offered by Cummings in her defense.
5. Refusing to allow Cummings the opportunity to refute the evidence
offered in support of the allegations, either by presentation of her own
evidence, or by confrontation and cross-examination of the evidence
offered against her.
The result of all of this was a proceeding where Cummings was
found by the trial court to have been ineffective, dishonest and unethical
but she was impeded in her ability to respond to the allegations. There
is no question that that this proceeding violated what the Court of
Criminal Appeals stated in Bone is required in a case where a lawyer is
accused of ineffective assistance, as well as what the Supreme Court has
recognized as basic constitutional requirements.
Among the many acts of interference in Cummings' presentation of
her response to the allegations are the following:
a. There is a plethora of authority from the Court of Criminal
Appeals that states that the response of the defense counsel is required
on a claim of ineffective assistance of counsel, see Bone v. State, supra.
Kelley’s writ lawyer and the District Attorney, despite being fully aware
of this legal requirement, made extensive efforts to put forth ineffective
assistance claims and have the trial court issue findings without allowing
a response from Cummings.15 Nevertheless, the trial court allowed the
attorneys to interfere with and attempt to block Cummings' response to
the ineffective assistance allegations.
b. Although Kelley’s lawyer and the District Attorney attempted
to pursue their ineffective assistance claims without Cummings
responding, Cummings did submit unsolicited affidavits to the court.16
Cummings made the lawyers and the trial court aware of this by citing relevant
15
authorities in the Motion to Unseal Affidavits of Defense Counsel filed on August 8,

2017, and the Request for A Hearing on Motion to Unseal Affidavits of Defense
Counsel and submission of Additional Authorities filed August 10, 2017.
Cummings’ first affidavit, dated August 2, 2017, addressed a claim of ineffective

16
assistance of counsel on an evidentiary issue that had been included in Kelley’s

sealed 11.07 writ filed on March 10, 2017 and in Kelley’s amended 11.07 writ filed
on July 17, 2017. Cummings took her first affidavit with her when she was
subpoenaed to appear at the evidentiary hearing on August 3, 2017, and it was
supplied to the judge and Kelley’s writ counsel in chambers before she was called to
Along with these affidavits Cummings, through counsel, presented
extensive briefing to the trial court concerning the requirement that a
lawyer respond to ineffective assistance allegations. Cummings also
provided authority to the trial court that demonstrated the falsity of the
claim of Kelley’s lawyer and the District Attorney that an ineffective
assistance claim did not waive attorney client privilege and the privilege
could be used to block Cummings from responding. See Youkers v. State,
400 S.W.3d 200, 211-212 (Tex. App. - Dallas 2013, pet. ref'd.); Bailey v.
State, 469 S.W.3d 762 (Tex. App. - Houston [1st Dist.] 2015), affirmed 507
S.W.3d 740 (Tex. Crim. App. 2016). 17
the witness stand (and without it being filed, since the trial court had not ruled that
Kelley’s writs had waived the attorney client privilege). After reviewing Cummings’
affidavit, which simply confirmed what Cummings had previously told him,
Hampton orally abandoned the ineffective assistance ground and the trial court
declined to allow her affidavit to be filed. However, after the conclusion of that in
chambers proceeding, Cummings was called to the witness stand and questioned
about a potential conflict of interest regarding Johnathan McCarty, who Cummings
never represented and did not know. Because the questioning by both the
prosecutor and Hampton was very limited and did not afford her a full and fair
opportunity to respond to this conflict of interest claim, Cummings submitted a
second affidavit, dated August 3, 2017. Finally, while Cummings submitted
additional materials after August 4, 2017, Kelley’s second amended writ was not
filed until Thursday, December 14, 2017, with the trial judge issuing her findings
and conclusions on Tuesday, December 18, 2017.
These cases were cited to the trial court in the Motion to Unseal Affidavits of
17
Defense Counsel filed on August 8, 2017.
c. Even after the extensive briefing provided to the trial court
that showed that an ineffective assistance claim cannot be pursued
without a response from the defense lawyer and that making an
ineffective assistance claim waives attorney client privilege, the trial
court allowed Kelley’s lawyer and the District Attorney to pursue a new
ineffective assistance claim in an amended writ application against
Cummings and deny her the opportunity to respond. Several weeks after
the writ hearing in this case, and after the thorough briefing concerning
the necessity of having a response from Cummings to any ineffective
assistance claims, the trial court, in a move that is "remarkable and
highly unusual," agreed with Kelley’s lawyer and the District Attorney
to consider and rule on a new ineffective assistance claim without
Cummings responding. The result was a new ineffective assistance
allegation being filed and then ruled on by the trial court 45 minutes
later, without Cummings or anybody else even knowing about it until the
trial court's ruling was released to the press. All of this was done, despite
the fact that on August 18, 2017, in his argument against unsealing
Cummings' initial affidavit, Kelley’s lawyer claimed(falsely) that he was
not pursuing any ineffective assistance claims.
This new allegation involved a claim that Cummings was
ineffective in reaching an agreement with the prosecutor at trial that
Kelley would receive the minimum sentence in exchange for waiving his
right to appeal. This allegation had never been raised in any previous
pleading. Yet, the trial court signed agreed findings submitted by Kelley’s
Attorney and the District Attorney shortly after the allegation was pled.
The trial court did this without having a response from Cummings and
without Cummings receiving any notice that this claim had been made.
d. Following the trial court's signing of these findings without
Cummings responding, Cummings and her counsel took several steps.
First, Cummings' counsel filed pleadings with the trial court again
providing case law making it clear that a trial judge is required to obtain
a response from a defense lawyer to an ineffective assistance allegation.
Cummings also provided the trial court with an affidavit responding to
the allegation. Nevertheless, on December 14, 2017, Kelley’s lawyer
added yet another new ineffective assistance claim, based on a new
conflict theory.18 Following the pattern from the previous ineffective
This new theory involved Johnathan McCarty's brother, who Cummings had
18
previously represented but who had nothing to do with this case. Cummings has
never been allowed to respond to this allegation. However, since this person had
nothing to do with this case, it is clear that there is no conflict based on Cummings'
assistance allegations, Kelley’s lawyer, Hampton, and the District
Attorney, Dick, again took steps to ensure Cummings did not have notice
of the new claim and did not have an opportunity to respond. The trial
court, in yet another "remarkable and highly unusual" move, signed
agreed findings submitted by the lawyers finding Cummings ineffective
based on the new allegation without giving Cummings an opportunity to
respond.
e. The trial court also struck all pleadings filed by Cummings
and refused to consider them. These pleadings were:
1. Motion to Unseal Affidavit of Defense Counsel filed
August 6, 2017.
2.. Request for a Hearing on Motion to Unseal Affidavits
filed August 10, 2017.
3. Patricia Cummings' Objections to Jointly Stipulated
Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four filed August 23, 2017.
prior representation of him. Therefore, this claim can easily be rejected without a
response from Cummings.
The District Attorney and Kelley's Writ Attorney both asked the
trial court to strike and not consider these filings, which is what the trial
court did. The trial court actually entered an order striking the pleadings
filed by Cummings and she wholly disregarded the arguments,
information and legal authorities contained in them in the trial court's
findings.
f. The trial court refused to file and consider affidavits
submitted by Cummings. These affidavits were from McDermott, 19 Rick
Wetzel and John Jasuta. The trial court wholly disregarded these
affidavits.
g. The trial court also conducted large portions of the
proceedings in this case in secret, behind closed doors, excluding the
public and the press. Although an evidentiary hearing was held on this
writ application where the press and public had access, Kelley’s lawyer
and the District Attorney asked to take the testimony of some of the
witnesses in secret. These witnesses were largely devoted to the claims
of ineffective assistance and the closed proceedings may have been
19
The trial court's refusal to consider McDermott's affidavit is particularly
"remarkable and highly unusual" since his affidavit directly refutes many of the
trial court's fact findings, and even though the affidavit was filed on August 23,
2017, a file-stamped copy was not included in the record sent to the court.
requested as part of an effort to impede and block Cummings from
responding to the allegations. However, there is no legal basis for secret
court proceedings such as that done here. Nevertheless, the trial court
allowed the lawyers to take the testimony of certain witnesses in closed
proceedings. Although all of these witnesses testified in the 26th District
Court courtroom, with Judge King presiding and her official court
reporter taking down the testimony, Judge King had her bailiff close the
courtroom, remove spectators, and had the courtroom windows covered
with white panels that read court closed.20 This was another of the many
"remarkable and highly unusual" actions taken in this case.
h. The trial court further compounded the errors in the way this
case was handled in making her findings and conclusions on the conflict
of interest claim. The claim made by Kelley’s Writ Attorney and the
District Attorney was essentially a technical argument of a potential
conflict because of some theoretical possibility that a former client or
family member of a former client could be accused of committing the
20
The lawyers and the trial court called these closed proceedings "depositions." Yet,
in fact, they were simply a continuation of the evidentiary hearing since they
occurred in precisely the same way that a hearing occurs: in court with the judge
presiding. In fact, any section of the reporters record that is designated as a
deposition is really just a closed portion of the evidentiary hearing.
offense. Kelley’s Writ Attorney even admitted at the hearing to unseal
Cummings' affidavit that Cummings had investigated Johnathan
McCarty and the possibility that he committed the offense. The argument
put forth by the lawyers was wrong legally and factually but was limited
in the nature of the claim. By contrast, in her findings and conclusions,
the trial court recast the allegation as a direct attack on Cummings
ethics. The trial court's findings were a statement that Cummings had
deliberately caused Kelley to be convicted in order to protect someone
else. This is an accusation that has absolutely no factual basis, and the
trial court found it to be true even though there was no evidence to
support it. Moreover, the trial court made the finding without Cummings
being given notice or an opportunity to respond. Making findings such
as this, without any factual or legal basis, is certainly "remarkable and
highly unusual."
In addition to this violating Cummings' rights to due process, these
actions also violated Cummings' right to confrontation and cross-
examination. The importance of the right to confrontation and cross-
examination was recognized by Presiding Judge Keller in her concurring
opinion in Ex Parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005, where
she said:
"The Confrontation Clause reflects a judgment about how the

reliability of testimony can best be determined. The Clause
commends that reliability be assessed by testing in the
crucible of cross-examination. That judgment is valid
regardless of the circumstance that the Confrontation Clause
does not apply to the State.
. . . adversarial testing is the constitutionally prescribed
method of assessing reliability, and it 'beats and bolts out the
Truth much better' than the procedure used here."
An adversarial testing of the evidence presented by Kelley's Writ
Attorney and the District Attorney is clearly the best way to ensure all
the evidence comes out. It certainly "beats and bolts out the truth much
better than the procedure used here."
Proposed Relief
Cummings reiterates that the record fully refutes the ineffective
assistance allegations and asks the court to so find. 21 However, if the
21
The trial court's findings that Cummings was ineffective and had a conflict of
interest have done substantial damage to Cummings' professional reputation. Each
day that these findings remain in effect, without a ruling from the Court of
Criminal Appeals, compounds this damage to Cummings' reputation. Since the
trial court's findings are clearly wrong, both legally and factually, Cummings has a
significant interest in a prompt resolution of this issue by the Court of Criminal
Appeals. For this reason, Cummings' primary request is that the court not remand
the case, and instead, issue an order finding the claims of ineffective assistance and
conflict of interest to be without merit based on the record before the court.
court takes the suggestion of the State Prosecuting Attorney and
remands the case, Cummings respectfully asks the court to do the
following:
1. To set out some specific procedures to be followed in this case, and
in other cases where lawyers, be it defense lawyers or prosecutors, have
been accused of ineffective assistance or prosecutorial misconduct. This
procedure should give life to the directive of Bone that an accused
attorney have an opportunity to explain himself and present evidence on
his behalf. The procedure should also comply with the due process rights
recognized by the Supreme Court and should include the right to fully
defend oneself by presenting evidence, confrontation and cross-
examination of adverse witnesses, the right to make legal arguments and
present legal authorities, the right to notice of the accusation and the
evidence against the lawyer, and the right to have a neutral and detached
magistrate decide the issue.22
22
Further guidance for standards to be employed in this procedure is found in T. R.
Civ. P. 60, Petition in Intervention. This rule allows a person to intervene in a
pending lawsuit under these circumstances: 1) if the action had been brought
against the intervenor he could have defeated the action in whole or part, 2)
intervention would not complicate the case by excessive multiplication of the issues,
and 3) intervention is almost essential to protect the intervenor's interest. Guar.
Fed. Sav. Bank v. Horsehore Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); Orion
While the Kelley case may be the most egregious example that
exists of a lawyer being denied the opportunity to fully and fairly defend
themselves, setting out these guidelines will be useful to ensure that all
lawyers' due process rights are protected in these types of cases.
ISSUE III
Kelley received ineffective assistance on his motion for new trial.
ARGUMENT
Instead of Cummings, Hampton represented Kelley on a motion for
new trial. Hampton had been consulted during the trial and was familiar
with the case. Hampton filed a motion for new trial, which was denied.
He then appealed to the Court of Appeals, which affirmed the denial.
Unfortunately, Kelley received ineffective assistance from Hampton on
the motion for new trial including failure to raise on the motion for new
trial the very issues that have now been raised on the writ application.
Waiver of Issue
Cummings recognizes that this issue is likely not before the court
since Hampton had Kelley execute a waiver of pursuing this issue. The
Reining Corp. v. UOP, 259 S.W.3d 749, 777 (Tex. App. - Houston [1st Dist.] 2007,
pet. denied).
waiver signed by Kelley stated that he did not think Hampton had been
ineffective on the motion for new trial and so waived the claim. During
Kelley's testimony on November 1, 2017, Kelley acknowledged he was
waiving the ineffective assistance claim on the motion for new trial. (p.
4-10). The trial court accepted the waiver and cited it in the findings.
The following should be noted about this waiver:
1. Hampton stated that the state suggested that he discuss with
Kelley waiving the ineffectiveness on the motion for new trial claim.
Apparently, Hampton had intended to not discuss this with Kelley at all.
(p. 4).
2. Hampton had not shown Kelley the affidavits filed by Cummings
that set out the basis for the claim against Hampton. (pp. 4-5).
3. It is clear from the discussion in court that Kelley had no idea what
he was actually waiving.
Based on the impropriety of Hampton advising his client to waive
any assertion of Hampton's own ineffectiveness, this court should
remand the case to ensure that Kelley receives some independent legal
advice on this issue. This remand is particularly important based on the
strength of the argument that Kelley received ineffective assistance on
the motion for new trial. By having Kelley sign a waiver of this issue,
Hampton has essentially placed Kelley in a position of stating that, if the
Court of Criminal Appeals rejects his other writ grounds, and the only
way he avoids going back to prison for 25 years, is for the court to find
that Hampton was ineffective on the motion for new trial, then he will
just go back to prison. Since it is obvious that Kelley has not been
adequately advised of the consequences of this waiver, and that he
received no personal benefit from the waiver, 23 and the only benefit was
to Hampton, this court should not simply accept and enforce the waiver.
Although this is an unusual situation, there is guidance to be found
in Christeson v. Roper, 135 S.Ct. 891 (2015) where Christeson's appointed
attorneys had missed a filing deadline on a federal habeas petition.
Christeson requested substitute counsel who would be able to argue for
equitable tolling of the filing deadline based on ineffective assistance.
The Supreme Court found he was entitled to substitute counsel stating:
"Tolling based on counsel's failure to satisfy AEDPA's statute

of limitations is available only for "serious instances of
attorney misconduct." Holland v. Florida, 560 U.S. 631, 651-
652, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Advancing such
a claim would have required Horwitz and Butts to denigrate
23
See Jenkins v. State, 495 S.W.3d 347 (Tex. App. - Houston [14th Dist.] 2016, no
pet.) (defendant received no benefit for appeal waiver and thus appeal waiver was
invalid).
their own performance. Counsel cannot reasonably be
expected to make such an argument, which threatens their
professional reputation and livelihood. See Restatement
(Third) of Law Governing Lawyers § 125 (1998). Thus, as we
observed in a similar context in Maples v. Thomas, 565 U.S.
___, ___, 8, 132 S.Ct. 912, 925, n. 8, 181 L.Ed.2d 807 (2012), a
"significant conflict of interest" arises when an attorney's
"interest in avoiding damage to [his] own reputation" is at
odds with his client's "strongest argument - i.e., that his
attorneys had abandoned him."
Law on Ineffective Assistance on Motion for New Trial
The right to effective assistance of counsel applies at the motion for
new trial. Cooks v. State, 240 S.W.3d 906, 908 (Tex. Crim. App. 2007).
In Griffith v. State, 507 S.W.3d 720 (Tex. Crim. App. 2016), Judge Hervey
concurring, the following was stated concerning ineffectiveness on a
motion for new trial:
"To prove harm, the defendant must present at least one

"facially plausible" claim to the court of appeals that could
have been argued in a motion for new trial but was not due to
ineffective assistance of counsel. Cooks, 240 S.W.3d at 912;
Bearman v. State, 425 S.W.3d 328 (Tex. App. - Houston [1st
Dist.] 2010, no pet.) (abating the appeal for the appellant to
file an out-of-time motion for new trial because he presented
a "facially plausible" claim that trial counsel was ineffective).
To make a "facially plausible" claim, a defendant is not
required to marshal all evidence germane to potential
ineffective-assistance-of-counsel claims, but he has to do more
than just listing things trial counsel may have possibly done
(or not done) that could possibly constitute ineffective
assistance of counsel. See Cooks, 240 S.W.3d at 911-12."
In Rogers v. State, 2011 WL 7290492 (Tex. App. - Houston [14th
Dist.] 2011, no pet.) (not designated for publication), the court discussed
the meaning of a facially plausible claim. The state had argued that the
record demonstrated that the defendant would not prevail at a hearing
on the motion for new trial. The Rogers court responded as follows:
"Further, the State has cited no authority for the argument

that we should consider record evidence in determining
whether a claim is "facially plausible." To the contrary, courts
seem to resolve this issue by looking to the allegations alone
without considering any contradictory record evidence."
Therefore, under the law, the assessment of whether Kelley
received ineffective assistance on the motion for new trial involves a
simple determination of whether there is a facially plausible ground that
could have been raised on the motion for new trial but was not. This
determination is made by looking at the allegation, and the evidence
submitted in support of the allegation, without consideration of whether
there is evidence in the record that would refute the allegation. If the
applicant presents a facially plausible ground that could have been raised
on a motion for new trial, then the Court of Criminal Appeals will grant
writ relief and allow him to file a new motion for new trial. It is at a
hearing on this motion for new trial that a full consideration of the record
will be made to determine whether to grant the motion. See State v.
Webb, 244 S.W.3d 543 (Tex. App. - Houston [1st Dist.] 2007, no pet.)
(defense counsel was deficient in failing to assert as a ground for new
trial the illegality of defendant's plea agreement); Barnett v. State, 338
S.W.3d 680 (Tex. App. - Texarkana 2011) (motion for new trial was
facially sufficient to warrant a hearing to determine if failure to subpoena
witness or offer mitigating evidence constituted ineffective assistance);
Monakino v. State, 2016 WL 6087683, No. 01-14-00361-CR (Tex. App. -
Houston [1st Dist.] 2016, no pet.) (defendant entitled to file out of time
motion for new trial since he specifically listed several issues he would
raise in a motion for new trial). Of course at this point, the District
Attorney could simply agree to the motion.
Facially Plausible Grounds
There are clearly facially plausible grounds that could have been
raised on a motion for new trial, including:
1. Whether the evidence was insufficient to sustain the conviction.
Kelley has alleged this in his writ application and the District Attorney
and the trial judge have agreed. In determining whether this is a facially
plausible ground that should have been raised on the motion for new
trial, the ultimate outcome of the question is not a consideration.
Moreover, in deciding whether this is facially plausible ground, the court
does not look at the trial record or the legal authorities. Rather, the
question is simply can Kelley adequately plead that the evidence is
insufficient. Certainly, this is an issue that could have been raised on a
motion for new trial. See State v. Medina, 2017 WL 4657500, No. 04-16-
00199-CR (Tex. App. - San Antonio 2017, no pet.) ("A trial court has
authority to grant a new trial on grounds listed in the Texas Rules of
Appellate Procedure, including when the verdict is contrary to the law
and the evidence. See TEX. R. APP. P. 21.3(h). An allegation that a
verdict is against the law and the evidence is a challenge to the
sufficiency of the evidence. State v. Zalman, 400 S.W.3d 590, 594 (Tex.
Crim. App. 2013) (citing Bogan v. State, 78 Tex. Crim. 86, 180 S.W. 247,
248 (1915)); State v. Moreno, 297 S.W.3d 512, 520 (Tex. App. - Houston
[14th Dist.] 2009, pet. ref'd.").
2. Whether identity was an issue, and whether there was a
requirement under Art. 38.071, Code Crim. Proc., for the child to make
an in-court identification. Again, no reference to the trial record is to be
made in order to determine whether identity was actually an issue. The
question is simply whether Kelley can plead adequate facts on this to
establish a facially plausible claim. Since he made this allegation in his
writ application, and the trial court and District Attorney have agreed,
this is another facially plausible ground that could have been raised on a
motion for new trial.
3. Whether the state withheld exculpatory evidence as alleged in the
writ application. An allegation that the state withheld exculpatory
evidence is a facially plausible claim and the record evidence that may
refute the claim is not to be considered in determining whether there was
ineffective assistance of counsel in not raising this on the motion for new
trial.
4. Ineffective assistance of counsel is also something that could have
been raised on a motion for new trial but was not. And, again, the record
evidence that may refute the ineffective assistance claim is not to be
considered in determining whether this is a facially plausible claim.
Every ineffective assistance allegation that is now before the court could
have been raised on a motion for new trial trial but was not.
An additional area of ineffective assistance on the motion for new
trial involves an examination of what Hampton actually raised on this
motion. The Court of Appeals' opinion sets out the problems with the
manner in which the motion was handled, finding the motion for new
trial was not adequately pled in order to require a hearing. Kelley v.
State, 2016 WL 612932 (Tex. App. - Austin 2016, pet. ref'd) (not
designated for publication).
Moreover, in rejecting the appellate argument that the trial court
erred in not setting a hearing, the court said that the second and third
amended motions for new trial were not timely filed. And, the second
and third amended motions had the following allegations that were not
in the initial or first amended motions:
1. That there was evidence that Kelley was not in the household when
the offense was alleged to have occurred.
2. There was now an expert witness concerning the cell phone and
about 8 other witnesses who could show that Kelley was not in the house
and what he was doing every day. None of this information, however,
was before the court since the motions were filed late.
Second, in analyzing what was timely raised and was actually
before the court, the court said that Kelley's counsel verified that he now
has, or soon will have, evidence establishing that Kelley was not at the
house during the relevant time period. Despite this, Hampton presented
only one insufficient affidavit. The court said that apart from this
affidavit, the motion did not present any evidence, did not specify what
evidence Kelley planned to present, and did not demonstrate why such
evidence was newly discovered. Based on this, the court ruled Kelley was
not entitled to a hearing.
The court's opinion lays out a strong argument for a finding of
ineffective assistance for failing to adequately plead the motion for new
trial. Moreover, the Court of Appeals' opinion identifies ways Hampton
could have pled facts entitling Kelley to a hearing. First, the matters
raised in the second and third amended motions could have been raised
in the original or the first amended motion filed within 30 days of
sentencing. Second, the original or first amended motion could have
more specifically cited evidence in support of the motion, rather than
simply alleging that Kelley had or soon would have evidence establishing
that Kelley was not at the house during the relevant time period.
Finally, in rejecting the argument that the Court of Appeals should
have considered Kelley's second and third amended motions, even though
they were filed outside the 30 day time period, the court stated that the
state objected to the trial court considering these motions. However, the
court recognized that amended motions filed outside the 30 day period,
up to the 75 day time limit, can be considered if the state does not object.
Thus, even if the evidence and factual allegations necessary to entitle
Kelley to a hearing were not fully discovered and developed until
sometime after the 30 day time period, there was still an avenue for
having this material considered. This avenue would have required
asking the trial court to withhold ruling on the motion until the end of
the 75 day time period. Additionally, the District Attorney's Office would
have had to be convinced that an amended motion filed outside the 30
day time period raised substantial issues and that, following their
obligation to seek justice, the District Attorney would agree the court
should be allowed to consider the additional allegations.
Conclusion on Ineffective Assistance on Motion for New Trial
There is a substantial basis to conclude that Kelley received
ineffective assistance of counsel on his motion for new trial. In order to
ensure that justice to Kelley is achieved and that he is not denied his
right to a fair review of his case as a result of a waiver of this ground, the
court should remand this for further inquiry into the validity of the
waiver of this issue. This inquiry should be designed to ensure that
Kelley fully understands that, by waiving this issue, he may be agreeing
to a situation where the Court of Criminal Appeals rejects all of his other
claims, and would have granted the writ application on this ground, had
he not waived it.
CONCLUSION
Based on the foregoing, Cummings, appearing as amicus curiae,
asks the court to do the following: Either find the record does not support
the findings of fact and conclusions of law entered by the trial court on
the ineffective assistance claims and find that Cummings was not
ineffective in her representation of Kelley. Or, in the alternative, find
that Cummings was denied a full and fair opportunity to respond to the
allegations and remand the case and order the trial court to allow
Cummings to fully defend herself from these allegations, including
ordering appropriate safeguards as suggested in Issue II. Additionally,
Cummings asks that the court remand and order the trial court to
conduct a full hearing to determine whether Kelley freely and
intelligently waived his right to raise a claim of ineffective assistance of
counsel on the motion for new trial.
Respectfully submitted,
/s/ David Botsford

DAVID BOTSFORD
dbotsford@aol.com
BOTSFORD & ROARK
1307 West Avenue
Austin, Texas 78701
512-476-1900
512-479-8040 fax
/s/ Gary A. Udashen

GARY A. UDASHEN
gau@udashenanton.com
UDASHEN | ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
214-468-8100
214-468-8104 fax
/s/ Ed Walsh
ED WALSH
ed@edwalshlaw.com
405 Round Rock Avenue
Round Rock, Texas 78664
512-255-6665
512-255-6654 fax
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for
Gregory Raymond Kelley was electronically delivered to the following
individuals, on this the 10th day of January, 2018:
Keith Hampton
Attorney for Applicant
1103 Nueces Street
Austin, Texas 78701
Shawn Dick
Williamson County District Attorney's Office
405 MK Blvd.
Georgetown, Texas 78626
/s/ David Botsford

DAVID BOTSFORD
/s/ Gary A. Udashen

GARY A. UDASHEN
/s/ Ed Walsh
ED WALSH
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 73.1, undersigned counsel certifies that this
document complies with:
1. the type-volume limitation of TEX. R. APP. P. 73.1(d) because this document
contains 14,989 words.
2. the typeface requirements of TEX. R. APP. P. 73.1(e) because this document
has been prepared in a conventional typeface using Word 2016 in 14-point Times
New Roman.
/s/ David Botsford

DAVID BOTSFORD
/s/ Gary A. Udashen

GARY A. UDASHEN
/s/ Ed Walsh
ED WALSH
APPENDIX
APPENDIX TO AMICUS BRIEF
A. Affidavit of James McDermott
B. Affidavit of Richard E. Wetzel
C. Affidavit of John G. Jasuta
D. Photograph of 26th District Court during non-public

hearings on Kelley writ proceedings.
lj iD"
~I ,:
iJ
1'1
111
NO, 13-l3§7-K26A !,
II
EX)>ARTE § IN THE DISTRICT COURT
§
§ 26Tll :JUDICIAL DISTRICT 11
§. ti'
GREGORY RAYMON!) KELLEY § WILLiAMSON COUNT\', TEXA.S
11
AFFfDAVIT OF JAMES MCDERMOTT i

.',I
::!
,,
THE STATE OF TEXAS
i1
COUNTY OF WlLLJAMSON .
II
''My·name h James McDermott. arid I am over eighteen years· of age and competent to
make this affid;tvit
"Attached hereto are true and correct copies of the following:

"!. A W~1i\1ei· of Attorney-Client Privilege signed by Greg Kelley and provided to nie
by Shawn Dick.
An e111ail that J wrote to Keith Hampton on July 24, 2017 and that! forwarded to
' .
Shawn Dick and Lindsey Robe11s on August I, 2017.;,
Affiant
SWORN TO AND SUBSCRJBED before me on the 'lj1JJ<lay of UuJ1,1@f , 2017.

(]
(/,
{/'1
· ry Public in and for the State ofTcxas
fl LED
l!:lit o'el.oe!J;'--_ _M.
AUG i 3 2017
JI·.~~
District ~Wliliarrmoi) Co., 1){.
AFFIDA \!IT OF JAMES MC_DERMO'IT-Pag" 1
No. 13-t~67-K26~A
EX PAR.TE § IN THE COURT «JF
§ cRiMINA]L APPEALS
§
GREGORY RA YMONO KE!LLEY, § AND THE
§
§ 26TJH 'DISTRICT COURTOJ!i'
APPLICANT § WILILJAMSON COUNTY, TEXAS
Waiver of Attorney;,Client I'rivi.lege'
. . I. (jreg9ry Raymond K!!llcy, lrcn:by w.aiv.c my auorncy4>He1Jt priv~li;ge ofa1tomey Jiifi1es

McQe1111ottso 1lia1 he may commtmictiii: iibo11\ his' rcprcse1itaiio11, spcciJkally, wht a defense
foaiuring an a!\crmnivc ~uspGC! was not.nursuetf.
'Executed this·<lay, August L 2017

---------- Fo:rwarded message "-c--,--,-
From: .James.MtDermott '<james@centrnlrexas1awyers .corn>
Date: Tue, Aug 1, 2017 at 12:24 .i;>M • ·
Subject: Fwq: Greg KeUey · . ·.
To: shawn.dick@\vilco.oi'g, Lindsey Roberts <li1idsey::roberts@wilco.org>.
James GerardlWcDermott, l1
Thompson Salinas & Mc:Oern19tt, LLf
8140 N. JY[opac, Weslpat1< 4, Suite 250
Austin TX 78759 -
512,201.4083
512.298.1129. (fax)
j ames@centraltexaslay;;yers. com
--~-------Forwarded
• messaoe
·. a ----------
. .
From: James McDermott <james@centrahexas1awyers.com>.
Date: IV1on, Jul 24, 2017 at lO:O:S AM .
..._,u_":-"Jv~.?.:A- ""-"Ji.;_""'5 L-"-':'"'~.11.-~;;
To: Keith Hampton <keithsiiamP-ton@gmaif.com>
Keith,
You have asked: Oid you ever·consider Johnathan 1\ircCarty to- be a suspect? If.so, why?
I am going to rephraseyour .questions: Did lever consider i:he theory that J ohnath11n coulq have corinnil;ted
tlie offenses instead of Greg,. and why. or why not? .
I started almost irnmediatelywif:b. thetheorythat Johnaj:han cmtldliavecomniil:tedthe offensesbalied on

the physical resemblanc.e between him and Greg, an\i Uie fact that the allegatiops ari:Jqe from events a,thjs
hi)me. :Patricia.and I talked about that quite a bit. In the short time I worl\:ed on the case; I.did not find that
theory to be the most frJ.tltfuHor a combination ofreasons. ·
I reviewed all paper discovezy, !reviewed the recotdedinterviews ofLin!dn andHaydentwice1Isai:with.

~ Greginmultiple meeting, andi mterviewed Greg alone.onl!e..
Linkin was able to distinguish between Greg and Johnathan clearly. He ll:new the &fferences between them ..
His telling "had concrete ~etails but had indications of coaching and could be attacked as having the de\ails
:fed by an adtilt.
Hayden had no cpncrete details and elements of his interv:iey.c were verifiably untiue.
Greg would n9t cooperate with any que_stions abcmt .JoImathan, any inv?Stig<itlon of Johnathan, an.;!
defo!!ded Johnathan against any theories presented. He gave us nothing to investigate,. and I was not aware
of any rumors about Jobnathatt.
Greg's individual interview with: me caused concerns on mypartahout whether he was telling methe truth.I.
discussedsexual history, social history, and family history with him. At best, he was evasive.. Often, I felt like
he was jlist telling me what he thought I wanted to hear. My relationship with him led me tci believethata
si:ril,i:egy ofattacklng the allegations themselves as false wocld have a higher chance ofsuccess than reiyiug
on Greg _to offer an alternative to thejurythat the allegations were true but committed by Johnathan inste~d
of Greg with no evidence to sJJbst.antiate the attack on Johnathan. · ·
I hope this answersyour questions.
James Gerard McDermott; II

Thompson Salinas &McDermott> LLP
f!i40 N. Mopac, Wesj:pffi:k 4, Suite 250
Austin TX 78759
512.201.~083
512;298.1129. (fa.X)·
james@.centraltexasla~ers;com
NO. 13-Jl367-:K26A
EXPARTE § IN THE DISTRICT COURT

§
§ 26TH JUDICIAL DISTRICT
§
GREGORY RAYMOND KELLEY§ WILLIAMSON COUNTY, TEXAS
AFFIDAVIT OF RICHARD E. WETZEL
TO THE HONORABLE JUDGE OF SAID COURT:
STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME THE UNDERSIGNED AUTHORITY ON TIDS DAY DID

PERSONALLY APPEAR THE AFFIANT HEREIN, RICHARD E. WETZEL,
AND UPON ms OATH DID STATE THE FOLLOWING:
My name is Richard E. Wetzel. I am over the age of eighteen and competent

to make this affidavit. I was licensed to practice law in the State of Texas by the
Supreme Court of Texas on June 10, 1977. My Texas Bar card number is
21236300. I am also licensed to practice in the Supreme Court of the United States,
United States Court of Appeals for the Fifth Circuit and the United States District
Courts for the Eastern, Northern, Southern, and Western Districts of Texas.
I was Board Certified in-Criminal Law by the Texas Board of Legal

Specialization in 1989 and re-certified 1994, 1999, 2004, 2009, and. 2014. I was
board certification in Criminal Appellate Law by the Board of Legal Specialization
in2011 and re-certified in 2016.
I was a Staff Attorney for State Counsel for Offenders at the Texas
Department of Criminal Justice in Huntsville, Texas, from 1977 to 1979. I was
employed by the Texas Court of Criminal Appeals from 1979. to 2003. While at
the Court, I was a Research Assistant, Staff Attorney, and General Counsel for a
period of 16 years.
1
I opened an office for the practice of law in January of 2004. My practice is
concentrated on habeas corpus and appellate matters in both state and federal
courts. I practice only criminal law.
Over the course of my career at the Department of Criminal Justice, Court of

Criminal Appeals, and privat~ practice, a substantial amount of my practice has
been in the area of statutory habeas litigation under TEX. CRIM. PROC. CODE art.
11.07. While at the Department of Criminal Justice and in private practice, I have
represented in excess of 100 applicants seeking habeas corpus relief from final
felony convictions. At the Court of Criminal Appeals, I reviewed, analyzed, and
advised the Court on a proposed disposition of more than 5000 post-conviction
habeas corpus applications.
I have reviewed the attached redacted affidavit of trial counsel Patricia

Cummings and the attachments thereto, dated August 24, 2017. Based on that
redacted affidavit, it is my understanding that Greg Kelley was convicted by a jury
of two counts of super aggravated sexual assault, each of which carried a sentence
of 25 years to life. It is als~ my understanding that in lieu of proceeding to a jury
for punishment, pursuant to an agreement with the State, Kelley elected to waive
his right to a direct appeal in exchange for the minimum sentence of 25 years oh
each count, which legally could have been cumulated.
As reflected by the attached redacted affidavit, I understand that Kelley was

admonished on the record by the trial judge regarding his waiver of appeal, with
the trial judge determining on the record that the waiver was knowingly,
voluntarily and intelligently made. Finally, it is also my understanding that Kelley
waived his right to appeal with advice from his trial counsel Cummings. The
-affidavit from Cummings also reflects she obtained input from her trial co-counsel.
Before agreeing to waive the appeal, Cummings also sought input from Austin
_attorney Keith Hampton.
Under Lundgren v. State, 434 S.W.3d 594 (Tex. Crim. App. 2014), Kelley's
waiver of the right to appeal did not include a waiver of the right to file a motion
for new trial or pursuing an appeal from the denial of any filed motion for new
trial. Hampton was hired to represent Kelley on a motion for new trial from his
convictions. Kelley's attorney during the time frame of his motion for new trial,
Hampton, was not legally prohibited from raising in a motion for new trial a claim
of insufficient evidence to support the convictions under Counts One and Two.
Thus, in a motion for new trial, counsel Hampton could have raised insufficient
evidence claims along with the argument that the verdicts were contrary to the law
2
I
I and the evidence. Had the motion for new trial presenting sufficiency of the
evidence challenges npt met with success in the convicting court, Hampton could
have appealed the denial of the motion for new trial to the Third Court of Appeals.
I have seen the Trial Court's August 22, 2017, "Stipulated Findings," which
conclude that the advice by trial counsel Cummings to Kelley to waive his appeal
constitutes ineffective assistance of counsel because there could not have been a
strategic reason to waive appeal. This conclusion is based on the further
conclusion that the evidence was legally insufficient because the child did not
identify Kelley in court.
Regardless of the viability of an appellate issue regarding insufficient

evidence, Cummings' affidavit reflects she made a strategic decision ·in advising
Kelley to waive an appeal. Legal advice regarding an appeal waiver necessarily
involves an exercise of strategy; typically, a cost-benefit analysis. Because the
sufficiency of the evidence could still have been raised on a motion for new trial,
the advice to avoid a potential sentence that could have been far in excess of25
years; including the potential cumulation of the two sentences, necessarily
involved a benefit without any cost whatsoever. Certainly, in spite of the ap:eeal
waiver, there was no forfeiture of the ability to raise insufficient evidence in the
motion for new trial.
Furthermore, I can state that historically and consistently, the Court of

Criminal Appeals allows and in most cases actively solicits input and a response
from any lawyer claimed to have provided ineffective assistance of counsel. This
is one of the reasons countless writs are remanded to district courts when trial
counsel have not been provided an opportunity to respond to or provide input at the
district court level in response to a claim of ineffective assistance of counsel. The
only exception to seeking the lawyer's input is when a factually supportable claim
is such that no objectively, reasonably effective counsel would have engaged in the
· challenged conduct.
The waiver of appeal claim in this case involves a multitude of strategic and
tactical decisions by trial counsel and those decisions should be considered in
. conjunction with the claim of ineffective assistance of counsel. While trial counsel
is not a party to the habeas proceeding, her input is essential for an appropriate and
just resolution of a claim of ineffective assistance of counsel. .
The only instances in which I can recall a trial court actively preventing trial
counsel from providing an affidavit or testimony in response to a claim of
3
ineffective counsel have been in response to an ill-conceived assertion of the
att01ney client privilege by an applicant in a habeas corpus proceeding. Those
cases tend to not tum out well for the habeas applicant, because such action
forecloses proof on the very claim the applicant bears the burden of proof upon.
In my opinion, the district court in the Kelley habeas matter should consider
the affidavit/response/objections that trial counsel Cummings and her counsel,
David Botsford, Gary U dashen, and Ed Walsh, have attempted to present to the
district court. If the district court does not do so at this point, it is my opinion that
the district court will be ordered to do so on remand :from the Court of Criminal
Appeals. In the alternative, it is reasonable to assume that Kelley will not prevail
on the claim of ineffective assistance of counsel because he and his current habeas
counsel have prevented the record from reflecting the position of trial counsel
regarding the alleged acts of deficient conduct in conjunction with the decision to
waive an appeal.
FURTHER THE AFFIANT SAYETH NOT.
~t ~_..[:/_
RichardE. Wetzel ~ ·
SWORN TO AND SUBSCRIBED BY THE AFFIANT RICHARD E. WETZEL,

BEFORE :ME, THE UNDERSIGNED AUTHORITY ON THIS THE 28TH DAY
OF AUGUST, 2017.
Notary
State of Texas
My commission expires: Jg 7/; ~
4
Affidavit of John Go Jasu.ta
THE STATE OF TEXAS }
}
COUNTY OF TRAVIS }
BEFORE ME, the undersigned authority, on this day personally
appeared John G. Jasuta, known to me to be the person whose name and
signature are affixed to this affidavit, and after being by me duly sworn on
oath deposed and stated:
"My name is John G. Jasuta. I am licensed to practice law in the State

of Texas and carry State Bar Card number 10592300. I have been
licensed since 1975, and am an attorney in good standing. I have spent
my entire career dealing with appellate and post-conviction matters.
Initially, I was a member of the Staff Counsel for Inmates, Texas
Department of Corrections, dealing with habeas cmpus and other post-
conviction matters. I was then appointed Gene.ral Counsel to the Texas
Board of Pardons and, later, became a member of the Central Staff of the
Texas Court of Criminal Appeals. After almost twenty-five years service
at the Court, I retired in September, 2003, and began a private practice,
which I voluntarily limit to post-conviction matters including criminal
appeals and habeas corpus. Until recently, I maintained an active
appellate and habeas corpus practice throughout the State.
The facts as I understand them to be show Greg Kelley, hereinafter
"Applicant," was convicted by a jury in Williamson County of Super
Aggravated Sexual Assault, which carries a sentence of25 years to life in
prison; Following the conviction, his trial counsel, with the advice and
- assistance of his co-counsel, as well as Keith Hampton, the current
attorney for Applicant, negotiated an agreement with the State that
Applicant would receive the minimum available sentence - 25 years in
prison, in exchange for which he would waive his right to appeal. No
other rights which Applicant had were waived during o:i;- following those
negotiations, including the right to file a Motion for New Trial, or an .
Application for Writ of Habeas Corpus.
Applicant accepted the deal offered by the State, waived his right to
appeal and was sentenced to 25 years in prison. Following the
Affidavit of John G. Jasuta

sentencing, Cummings turned the case over to Keith Hampton for the
purpose of further representation of Applicant on post-conviction
matters.
No previous attack on the sufficiency of the evidence has. been brought,
either at the Motion for New Trial or appellate stage. At this time, trial
counsel, Cummings, has been alleged to have acted deficiently by her
advise to waive appeal because there is insufficient evidence. However,
the waiver did not waive all review processes, leaving the Motion for New
Trial as a viable method of attacking the sufficiency of the evidence.
Thus, in my opinion, Cummings could not have acted deficiently because
her advice to accept the bargain and waive appeal did not affect his
ability to raise the issue which he now contends would have been
succes,sful on appeal. I state this without an opinion on the legal
sufficiency of the evidence to convict Applicant but, rather~ only on the
available remedies. Cummings' actions, and advice, did not foreclose,
but rather preserved, an adequate remedy which Applicant, by and
through his attorney, Hampton, failed to take. Any deficient conduct in
giving up the available review process lies with Applicant, and his
attorney, at the time the decision was made to not raise the issue on
Motion for New Trial. Of course, a judicial decision to deny a Motion for
New Trial is reviewable on direct appeal from that decision.
·It is my opinion based on my experience both in and out of judicial
service that Cummings did not act deficiently in advising Applicant to
accept the deal by which he waived appeal. Further, it is my opinion
that, there being no showing of deficient conduct, the question of any
potential harm to Applicant is irrelevant
Joh~,
SIGNED and SWORN to before me, the undersigned authority, on this
the -~2~4~th~-- day of ____A_u~u=s~t'--;--------------' 2017.
d~wWt"J~~
NtJ:
Printed M~dgie Hot)gshead'
My Commission Expires: December 22, 2019 '

PHOTO OF COURTROOM TAKEN
BY COUNSEL FOR PATRICIA CUMMINGS
DURING CLOSED HEARING ON KELLEY CASE

Amicus Brief of P. Cummings

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Filed: 1/10/2018 2:41 PM

Lisa David, District Clerk

GREGORY RAYMOND KELLEY,

THE STATE OF TEXAS,

BRIEF OF AMICUS CURIAE

DAVID BOTSFORD GARY A. UDASHEN

Pursuant to T. R. App. P. 11, this brief is submitted on behalf of

Patricia Cummings, trial attorney for Applicant, Gregory Raymond

This brief is submitted by David Botsford, Gary Udashen and Ed

amicus curiae brief.

Identity and Interest of Amicus Curiae .................................................... i

Table of Contents ................................................................................ ii-iii

Index of Authorities ............................................................................iv-vii

Summary of the Argument ...................................................................... 1

Patricia Cummings did not provide ineffective assistance to

Background of Case ......................................................................... 5

Waiver of Appeal ............................................................................. 6

Conflict of Interest Claim .............................................................. 13

The Trial Court’s Credibility Findings ......................................... 27

Comments on Specific Findings of Fact ........................................ 29

Comments on Specific Conclusions of Law ................................... 38

Conclusion on Trial Court’s Findings ........................................... 40

Response to State Prosecuting Attorney’s recommendation

Right To Present A Defense .......................................................... 41

Proposed Relief .............................................................................. 56

Issue III .................................................................................................. 58

Kelley received ineffective assistance on his motion for new

Waiver of Issue .............................................................................. 58

Law on Ineffective Assistance on Motion for New Trial .............. 61

Facially Plausible Grounds ........................................................... 63

Conclusion on Ineffective Assistance on Motion for New Trial ... 68

Certificate of Service .............................................................................. 71

Certificate of Compliance ....................................................................... 72

Bailey v. State, 469 S.W.3d 762

Barbaro v. State, 115 S.W.3d 799

Bone v. State, 77 S.W.3d 828

Christeson v. Roper, 135 S.Ct. 891 (2015)............................................... 60

Cuyler v. Sullivan, 446 U.S. 335 (1980) .................................................. 13

Eubanks v. State, 326 S.W.3d 231

Figueroa v. State, 2017 WL 2289031

Guar. Fed. Sav. Bank v. Horsehore Operating Co.,

Holmes v. South Carolina, 547 U.S. 319 (2006) ..................................... 46

Jenkins v. State, 495 S.W.3d 347

Kelley v. State, 2016 WL 612932

Lundgren v. State, 434 S.W.3d 594 (Tex. Crim. App. 2014)............... 6, 12

Macias v. State, 2002 WL 31569002

Martinez v. State, 212 S.W.3d 411

Monakino v. State, 2016 WL 6087683,

Morrissey v. Brewer, 408 U.S. 471 (1972) ......................................... 45, 46

Riordan v. State, 2017 WL 3378889 (Tex. App. - Austin 2017, no pet.) .. 7

Roderick v. State, 494 S.W.3d 868

Rogers v. State, 2011 WL 7290492

Rubino v. State, 2017 WL 1953275

State v. Medina, 2017 WL 4657500

State v. Moreno, 297 S.W.3d 512

State v. Webb, 244 S.W.3d 543

United States v. Mett, 65 F.3d 1531 (9th Cir. 1995) ............................... 13

Wilkins v. Davis, 832 F.3d 547 (5th Cir. 2016) ....................................... 14

Youkers v. State, 400 S.W.3d 200

Codes and Rules

Tex. Code Crim Proc., Art. 38.071 .................................................... 10, 64

Tex. R. App. P. 11 ....................................................................................... i

Tex. R. App. P. 21.3(h)............................................................................. 64

Tex. R. Civ. Proc. 18(b) ............................................................................ 45