PD-1597-15 PD-1597-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/10/2015 7:59:20 PM Accepted 12/11/2015 12:37:59 PM ABEL ACOSTA NO. _____________ PD CLERK
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS ___________________________________________
EX PARTE
JAMES AGBEZE Petitioner,
_________________________________________________________
Petition in Cause No. 1288928 from the TH 180 District Court of Harris County, Texas and the Court of Appeals for the 14TH District of Texas _________________________________________________________
PETITION FOR DISCRETIONARY REVIEW _________________________________________________________
TOM ABBATE 440 LOUISIANA ST, STE 200 HOUSTON, TX 77002 T: 713.223.0404 F: 800.501.3088 tom@tomabbatelaw.com SBOT # 24072501
ATTORNEY FOR PETITIONER December 11, 2015
IDENTITIES OF PARTIES AND COUNSEL
PETITIONER: JAMES AGBEZE
PRESIDING JUDGE: HON. CATHERINE EVANS 180th District Court Harris County Criminal Justice Center 1201 Franklin, 18th Floor Houston, Texas 77301 (713) 755-6344
HABEAS COUNSEL FOR STATE: MR. STAN CLARK Assistant District Attorney Harris Co. District Attorney’s Office 1201 Franklin, Ste 400 Houston, Texas 77002 (713) 755-5800
HABEAS COUNSEL: MR. TOM ABBATE 440 Louisiana, Ste 200 Houston, Texas 77002 (713)-223-0404
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2 INDEX OF AUTHORITIES........................................................................................................... 4 STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6 STATEMENT OF THE CASE....................................................................................................... 6 STATEMENT OF PROCEDURAL HISTORY ............................................................................. 8 QUESTION PRESENTED FOR REVIEW ................................................................................... 9 REASON FOR REVIEW ............................................................................................................... 9 The Law Regarding Appellate Review of 11.072 Habeas Generally.............................................. 9 Analysis ......................................................................................................................................... 10 PRAYER FOR RELIEF ............................................................................................................... 12 CERTIFICATE OF SERVICE ..................................................................................................... 13 CERTIFICATE OF COMPLIANCE ............................................................................................ 13 APPENDIX ................................................................................................................................... 14
INDEX OF AUTHORITIES Cases Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007) .......................................................... 9 Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)............................................................ 10 Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) ....................................................... 10 Ex parte Scott, 190 S.W.3d 672 (Tex. Crim. App. 2006) ............................................................... 9 Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ............................................................... 9 Statutes Tex. Code Crim. Proc. art. 11.072 .................................................................................................. 9
NO. _____________ PD
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
EX PARTE
JAMES AGBEZE Petitioner,
_________________________________________________________
Petition in Cause No. 1288928 from the TH 180 District Court of Harris County, Texas and the Court of Appeals for the 14TH District of Texas __________________________________________________________
PETITION OF DISCRETIONARY REIVEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS
James Agbeze, petitions the Court to review the judgment affirming The denial of his Application for Writ of Habeas Corpus Pursuant to Article 11.072 of the Texas Code of Criminal Procedure
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would assist to resolve whether the evidence was legally sufficient to support the conviction obtained against the Petitioner in this case.
STATEMENT OF THE CASE
During the investigation of the conviction at issue, Appellant was approached by one of the investigators in this case, who solicited him for a bribe. Appellant was informed that if the requested funds were provided, a report would be generated allowing him to avoid prosecution for the crime at issue in this case. Appellant refused to provide the bribe, and was then informed by the investigator that he would face prison time for failing to do so.
Subsequently, Appellant was indicted for submitting a series of fraudulent Medicaid reimbursement claims. The jury convicted Appellant of theft of property by a government contractor with an aggregated value of $1,500 or more, but less than $20,000, assessed punishment at seven years community supervision, and imposed a $10,000 fine. The trial court ordered Appellant to spend 90 days in jail as a condition of community supervision and to pay $18,169.45 in restitution.
On the appeal of the trial, Appellant argued that (1) there was insufficient evidence to prove that he intentionally or knowingly committed theft or that individual over-charges were part of a larger criminal scheme to allow the theft amounts to be aggregated and tried as one offense and that (2) the trial court abused *7 its discretion in ordering him to pay $18, 169.45 in restitution. The Court of Appeals denied Applicant’s grounds for relief and affirmed the judgment of the trial court. Applicant then filed a Petition for Discretionary Review with the Texas Court of Criminal Appeals, but was denied. Applicant’s subsequent Motion for Rehearing was also denied.
During the pendency of the above appeals, the investigator in question was indicted for bribery. The investigator entered a plea of guilty to the charge and was convicted under the terms of a plea bargain.
Subsequently, Appellant filed the instant Application for Writ of Habeas Corpus pursuant to Article 11.072 alleging that he was actually innocent of the crime and that the state had committed a Brady violation by failing to disclose the corruption of its investigator to trial counsel. After the submission of affidavits, the habeas court entered findings of fact and conclusions of law dismissing Appellant’s allegations and ordering that all requested relief be denied.
STATEMENT OF PROCEDURAL HISTORY
This is an appeal from the Habeas Court’s DENIAL OF RELIEF and FINDINGS OF FACT AND CONCLUSIONS OF LAW in Appellant’s
APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO ARTICLE
11.072. Appellant filed a NOTICE OF APPEAL on MAY 7, 2015.
The court of appeals rendered its decision affirming Petitioner’s conviction on November 5, 2015. Petitioner did not file a motion for rehearing, and the decision of the court of appeals became its final ruling on November 20, 2015. This petition was then filed with the clerk of the court of appeals within 31 days after such final ruling.
QUESTION PRESENTED FOR REVIEW
Did the Trial Court abused its discretion in denying Appellant’s requested relief?
REASON FOR REVIEW
The Law Regarding Appellate Review of 11.072 Habeas Generally
"Habeas corpus is an extraordinary remedy and is available only when there is no other adequate remedy at law." Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007). Article 11.072 establishes the procedures for an applicant in Appellant's situation to seek habeas corpus relief "from an order or a judgment of conviction ordering community supervision." Tex. Code Crim. Proc. art. 11.072, § 1. The statute expressly provides that writ relief is not available "if the applicant could obtain the requested relief by means of an appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure." Id. § 3(a).
An applicant for habeas corpus relief must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial court's order denying habeas corpus relief, the facts are viewed in a light most favorable to the trial court's ruling. See Kniatt, 206 S.W.3d at 664. The reviewing court will uphold the trial court's ruling absent an abuse of discretion. See id.
Almost total deference is afforded to the trial court's determination of the historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). Likewise, the reviewing court will defer to the trial court's application of the law to the facts, if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See id. Analysis
The habeas court abused its discretion in denying Appellant’s requested relief. Appellant provided evidence sufficient to show that he was entitled to a new trial based on theories of actual innocence and a Brady violation. Further, habeas counsel reviewed all of the evidence provided by the state, and pointed out to the court that the reports generated during the investigation of Appellant failed to detail, or even mention, Nnadi’s involvement.
The habeas court, however, found the affidavit of Jesse Mack to be credible despite the inconsistencies contained therein. Mack initially stated that Nnadi was involved solely as an “observer since there was an investigative auditor assigned and already working on the case.” Therefore, he was not listed as a participant in the interview. Further, Mack stated that Nnadi did not have input as either an auditor or investigator at any time.
However, Mack also stated that he and Nnadi met with Appellant at least twice during the pendency of the investigation. Further, Mack stated that Nnadi did participate in preparing for the trial of Appellant. Therefore, Nnadi’s involvement was more than solely as an observer.
Finally, the criminal complaint and corresponding affidavit show that at least the Federal Bureau of Investigations was aware of Nnadi’s corruption as far back as 2007, although it appears to have decided not to do anything about the matter until 2014.
Therefore, Appellant proved his allegations by a preponderance of the evidence and the habeas court abused its discretion in denying the requested relief.
PRAYER FOR RELIEF
ACCORDINGLY, this Court should GRANT this PETITION FOR DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the question of whether the evidence against the Petitioner was legally sufficient to support his conviction.
Petitioner further prays for all relief to which he may be entitled.
Respectfully submitted,
______________________________ TOM ABBATE 440 LOUISIANA ST, STE 200 HOUSTON, TX 77002 T: 713.223.0404 F: 800.501.3088 tom@tomabbatelaw.com SBOT # 24072501
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
This is to certify that on the day of DECEMBER 8, 2015 a true and correct copy of the above and foregoing Petition for Discretionary Review was served on the Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston, Texas 77002, by FAX (713.755.5809).
______________________________ TOM ABBATE
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 1534 words contained in this document.
______________________________ TOM ABBATE
APPENDIX
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