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
__________________________
V.
__________________________
Envelope# 21739280
IDENTITY AND INTEREST OF AMICUS CURIAE
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.
Walsh. None of the attorneys have been paid a fee for preparation of this
i
TABLE OF CONTENTS
Page
Issue I ....................................................................................................... 2
Argument .................................................................................................. 2
Issue II .................................................................................................... 40
Argument ................................................................................................ 58
Conclusion .............................................................................................. 69
iii
INDEX OF AUTHORITIES
Cases Page
Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007) ........................ 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
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
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
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
v
Orion Reining Corp. v. UOP, 259 S.W.3d 749
(Tex. App. - Houston [1st Dist.] 2007, pet. denied) ................................. 57
Rodriguez v. State, 819 S.W.2d 871 (Tex. Crim. App. 1991) .................... 7
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
vi
Williams v. Ludwick, 761 F.3d 841 (8th Cir. 2014) ................................ 14
vii
SUMMARY OF THE ARGUMENT
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
unusual. Nevertheless, even with this interference, the record before the
court shows that Cummings was not ineffective and had no conflict of
Moreover, the record does show that Kelley did receive ineffective
assistance, but not from Patricia Cummings. Rather Kelley’s current writ
on his motion for new trial. Yet, Hampton had Kelley sign a waiver of the
against Cummings.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 1
ISSUE I
ARGUMENT
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
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
abuse did not happen at all, despite the fact that she had strong evidence
that the abuse happened and instead presented a defense that the child
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 2
was confused over who abused him, and it was someone other than
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
In order for the Court of Criminal Appeals to adopt the trial court's
ways:
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 3
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.
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
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
6. The court would have to modify the law to conclude that if there is
would need to overrule the cases that require a showing that a conflict
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 4
Background of Case
sexual assault of a child, alleging that he sexually assaulted two four year
old boys. The stories told by the children were fantastical and
that these four year old children were unreliable as witnesses and
therefore there was insufficient proof that the children were abused.
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
to appeal.
legal issues and immediately referred the case to him for filing of a
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 5
motion for new trial. Although the agreement with the prosecutor waived
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
Waiver of Appeal
exchange for waiving appeal. The problems with these findings are:
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 6
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
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.
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
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 7
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
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
testimony, H.M.’s father also saw Greg Kelley interact with H.M. at the
3 - 187). Although H.M. did not identify Greg in the courtroom after he
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 8
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
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
interacted with H.M. while H.M. was attending Shama’s daycare (Trial
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 9
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
identity was an issue. In fact, identity was not an issue and therefore an
See, Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009) (Appellate
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 10
3. Although it was brought to the trial court’s attention that a
motion for new trial, the trial court refused to address or consider that.3
Kelley’s right to make that argument on a motion for new trial, and, if
undisputed fact, the trial court is failing to properly apply the law on
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
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 11
". . . 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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 12
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
The trial court's findings and conclusions are contrary to both the facts
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
defendant must show that his attorney had an actual (not potential)
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
earlier); United States v. Mett, 65 F.3d 1531, 1535 (9th Cir. 1995) (adverse
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 13
representation of the client before the court or in negotiations with the
government); Wilkins v. Davis, 832 F.3d 547 (5th Cir. 2016) (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
reasonable trial strategy, thus alleged conflict could not have had an
Applying the applicable law to the trial court's findings show the
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 14
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
a. Both children clearly knew who Greg was and who Jonathan
was and there was no evidence that they had them confused.
care their children knew. In particular, the child on which the jury
5
An affidavit from Cummings stated:
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 15
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.
accomplice in the same murder on trial and the court found no conflict of
conviction, was not charged, and, as to the child the conviction was based
on, his name was never mentioned. Cummings had never represented
3. The fall back theory of conflict, and the one raised for the first time
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 16
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,
investigation, which is that this brother was not living in the house.
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:
did it.6
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 17
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. -
4. The trial court finds that counsel’s reasons for pursuing a particular
as a conflict of interest, even though the law requires a showing that the
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
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 18
McCarty and knew that, after seeing him and Kelley in person,8 the jury
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
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.
8
No competent prosecutor would have allowed this argument to be made without
bringing McCarty into the courtroom.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 19
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.
33).
claim that other members of the McCarty family may have committed
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 20
7. The trial evidence shows that Cummings presented a strong
defense that the child's claims of being sexually abused at all were
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
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
After receiving the report of sexual abuse, the Cedar Park Police
the child was telling the truth and while using inappropriate interview
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 21
& Vol. 6 - 77 - 116). The forensic interviewer did not appear to be
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
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 22
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
interview (Trial Vol. 3 - 103, 104 & Trial Vol. 6 - 32). So, by the time of
- 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
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).
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 23
case that increased the likelihood that both children were susceptible to
false allegations and false memories. (Trial Vol. 6 - 77). Dr. Thorne then
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
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.
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 24
factors present in the case, failure to follow best practices increases the
8. In the findings on the conflict issue, the trial court makes several
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.
tactic might have been pursued does not require a showing that the
alternative strategy or tactic was better than the one actually pursued.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 25
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
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
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
contending the two people involved were Johnathan and his brother?
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 26
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
McCarty. The trial court does not explain her refusal to consider this
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 27
the case, I did not find that theory to be the most fruitful for
a combination of reasons.
2. The trial court also took other unusual actions in this case, such as
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 28
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
appeal. Hampton stated that Cummings only asked him if he had ever
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
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
3.5.1.13 The trial court states that trial counsel did not adequately
not supported by the record. And, the only thing that the lawyers or trial
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 29
judge claim that Cummings should have told Applicant was that the
have been both factually and legally wrong and Kelley would actually
"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)
"I know that I had advised her to advise him that was what
we should do." (Bachman Testimony, 10-27-2017, p. 12)
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).
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 30
"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
that shows that Cummings did not have any sort of friendship or personal
earlier. Even Kelley himself admitted this in his own testimony when he
Bachman agreed with Cummings that there was no reversible error, including
10
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 31
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
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
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
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 32
3.5.2.9 The trial court states that Cummings acknowledged
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
thinking existent in four year olds. This evidence went directly to 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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 33
McDermott's affidavit, confirm that they did investigate this. This
3.5.2.13 The trial court states that Cummings did not fully inform
p. 22).
3.5.2.17 The trial court finds that Cummings should have changed
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
3.5.2.18 The trial court finds that Cummings told her investigator
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 34
concluded that arguing that he did it was not a good defense. Moreover,
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
case and there was, and still is, no evidence the former client had any
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 35
3.5.2.21 The trial court states that Kelley believed that Cummings
corroborates Cummings and contradicts Kelley. The trial court also fails
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
argument that McCarty had committed the abuse was not pursued
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 36
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
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
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
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
the best defense available to the jury and instead should just throw
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 37
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
3.5.2.25 and 3.5.2.26 The trial court again misstates what the
Cummings not pursuing the alternative suspect defense, rather than the
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
of just one.
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 38
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,
4.4.5. The trial court finds that a failure of the child to make an in-
this, the court cites three cases, dated 1940, 1951 and 1963. Cummings'
counsel has provided Judge King and this court modern era cases that
4.4.9.8 The trial court finds that an alternative suspect defense was
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 39
she presented the wrong defense, which is obviously an incorrect
conclusion.
conclusion reached.
4.4.49.17 The trial court finds that the reason that Cummings did
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
The findings and conclusions of the trial court are clearly not
Criminal Appeals.
ISSUE II
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 40
ARGUMENT
suggestion is made that the Court remand the Case to give Cummings a
Attorney noted, that the “proceedings in this case have been remarkable
And the State Prosecuting Attorney is correct to recognize that there are
and the record before the court is therefore sufficient to find that there
Attorney's suggestion and remand the case, Cummings would ask that
the remand order contain instructions that allow her to fully participate
would involve giving Cummings the right to confront and cross examine
witnesses, present her own testimony (beyond her own affidavits), and
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 41
present legal arguments to the court. If a remand involved nothing more
than the opportunity for Cummings to present another affidavit, then the
and enter findings stating that Cummings was ineffective and had a
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 42
factually incorrect. In entering these findings, the attorneys and trial
court:
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
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
back to the same trial court who sanctioned the “remarkable and highly
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 43
same: the disregarding of Cummings' responses, ignoring of legal
remand appropriate it will be necessary for the court to take strong action
This action must include providing Cummings the due process rights that
“remarkable and highly unusual” way in which the trial court has
conducted these proceedings, this may require the court to take steps to
“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
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).
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 44
district judge, or 2. Cummings should be granted legal status to pursue
In Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002), the
incompetent."
process rights. In Morrissey v. Brewer, 408 U.S. 471 (1972), the court
stated:
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).
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 45
According to Morrissey, when procedural protections apply, due
documentary evidence.
The record before the court shows that these basic due process
547 U.S. 319 (2006). This is a right that should also apply to a lawyer
Attorney, Dick, with the concurrence of the trial court, have engaged in
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 46
1. Making ineffective assistance allegations in secret, and having the
trial court sign findings without Cummings even knowing the allegations
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 47
Among the many acts of interference in Cummings' presentation of
Appeals that states that the response of the defense counsel is required
Kelley’s writ lawyer and the District Attorney, despite being fully aware
assistance claims and have the trial court issue findings without allowing
Cummings made the lawyers and the trial court aware of this by citing relevant
15
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 48
Along with these affidavits Cummings, through counsel, presented
provided authority to the trial court that demonstrated the falsity of the
assistance claim did not waive attorney client privilege and the privilege
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
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 49
c. Even after the extensive briefing provided to the trial court
court allowed Kelley’s lawyer and the District Attorney to pursue a new
Cummings and deny her the opportunity to respond. Several weeks after
the writ hearing in this case, and after the thorough briefing concerning
highly unusual," agreed with Kelley’s lawyer and the District Attorney
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 50
This new allegation involved a claim that Cummings was
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.
First, Cummings' counsel filed pleadings with the trial court again
providing case law making it clear that a trial judge is required to obtain
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'
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 51
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
respond.
August 6, 2017.
prior representation of him. Therefore, this claim can easily be rejected without a
response from Cummings.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 52
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
findings.
Wetzel and John Jasuta. The trial court wholly disregarded these
affidavits.
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
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 53
requested as part of an effort to impede and block Cummings from
court proceedings such as that done here. Nevertheless, the trial court
Court courtroom, with Judge King presiding and her official court
reporter taking down the testimony, Judge King had her bailiff close the
with white panels that read court closed.20 This was another of the many
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
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 54
offense. Kelley’s Writ Attorney even admitted at the hearing to unseal
McCarty and the possibility that he committed the offense. The argument
put forth by the lawyers was wrong legally and factually but was limited
ethics. The trial court's findings were a statement that Cummings had
else. This is an accusation that has absolutely no factual basis, and the
support it. Moreover, the trial court made the finding without Cummings
highly unusual."
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 55
opinion in Ex Parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005, where
she said:
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
Proposed Relief
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 56
court takes the suggestion of the State Prosecuting Attorney and
following:
his behalf. The procedure should also comply with the due process rights
recognized by the Supreme Court and should include the right to fully
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
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 57
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
ISSUE III
ARGUMENT
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.
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).
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 58
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
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.
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).
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
remand the case to ensure that Kelley receives some independent legal
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 59
the motion for new trial. By having Kelley sign a waiver of this issue,
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
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.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 60
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."
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 61
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
on the motion for new trial. The Rogers court responded as follows:
could have been raised on the motion for new trial but was not. This
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 62
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.)
S.W.3d 680 (Tex. App. - Texarkana 2011) (motion for new trial was
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
There are clearly facially plausible grounds that could have been
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 63
trial, the ultimate outcome of the question is not a consideration.
does not look at the trial record or the legal authorities. Rather, the
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
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
requirement under Art. 38.071, Code Crim. Proc., for the child to make
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 64
question is simply whether Kelley can plead adequate facts on this to
writ application, and the trial court and District Attorney have agreed,
this is another facially plausible ground that could have been raised on a
evidence is a facially plausible claim and the record evidence that may
ineffective assistance of counsel in not raising this on the motion for new
trial.
been raised on a motion for new trial but was not. And, again, the record
Every ineffective assistance allegation that is now before the court could
have been raised on a motion for new trial trial but was not.
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 65
motion. The Court of Appeals' opinion sets out the problems with the
manner in which the motion was handled, finding the motion for new
State, 2016 WL 612932 (Tex. App. - Austin 2016, pet. ref'd) (not
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
1. That there was evidence that Kelley was not in the household when
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.
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 66
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
ineffective assistance for failing to adequately plead the motion for new
could have pled facts entitling Kelley to a hearing. First, the matters
raised in the second and third amended motions could have been raised
simply alleging that Kelley had or soon would have evidence establishing
that Kelley was not at the house during the relevant time period.
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 67
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.
sometime after the 30 day time period, there was still an avenue for
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
day time period raised substantial issues and that, following their
obligation to seek justice, the District Attorney would agree the court
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
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 68
waiver of this issue. This inquiry should be designed to ensure that
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
CONCLUSION
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
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 asks that the court remand and order the trial court to
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 69
Respectfully submitted,
/s/ Ed Walsh
ED WALSH
Bar Card No. 20806500
ed@edwalshlaw.com
405 Round Rock Avenue
Round Rock, Texas 78664
512-255-6665
512-255-6654 fax
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 70
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/ Ed Walsh
ED WALSH
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 71
CERTIFICATE OF COMPLIANCE
has been prepared in a conventional typeface using Word 2016 in 14-point Times
New Roman.
/s/ Ed Walsh
ED WALSH
Brief of Amicus Curiae Patricia Cummings, Trial Lawyer for Gregory Raymond Kelley - Page 72
APPENDIX
APPENDIX TO AMICUS BRIEF
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
COUNTY OF WlLLJAMSON .
II
''My·name h James McDermott. arid I am over eighteen years· of age and competent to
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
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
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.-~;;
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? .
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. · ·
STATE OF TEXAS
COUNTY OF TRAVIS
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.
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.
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.
~t ~_..[:/_
RichardE. Wetzel ~ ·
Notary
State of Texas
4
Affidavit of John Go Jasu.ta
THE STATE OF TEXAS }
}
COUNTY OF TRAVIS }
BEFORE ME, the undersigned authority, on this day personally
signature are affixed to this affidavit, and after being by me duly sworn on
Joh~,
SIGNED and SWORN to before me, the undersigned authority, on this
d~wWt"J~~
NtJ:
Printed M~dgie Hot)gshead'