FILED

at_ _o.'cfock_____M

AUG 2 3 2017
N0.13-1367-K26-A JJ.A•A ~
Dlatrlot cf:r~Wllllamson Co., TX.
EXPARTE § IN THE DISTRICT COURT
§
§ 26TH JUDICIAL DISTRICT
§
GREGORY RAYMOND KELLEY§ WILLIAMSON COUNTY, TEXAS

PATRICIA CUMMINGS' OBJECTIONS TO
JOINTLY STIPULATED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
RECOMMENDATIONASTOGROUNDFOUR

TO THE HONORABLE JUDGE OF SAID COURT:

NOW ~OMES PATRICIA CUMMINGS, by and through her counsel, David

Botsford, Gary Udashen and Ed Walsh, and submits these Objections to Jointly

Stipulated Findings of Fact, Conclusions of Law and Recommendation As To

Ground Four and would show the following:

I.
Ground Four involves an allegation of ineffective assistance of counsel based

on Applicant's waiver of appeal in exchange for the minimum sentence under the

law. This allegation was contained in Applicant's second amended writ which was

filed on August 22, 2017, at I :20 p.m. This was the first pleading filed ever

mentioning this allegation. The trial court signed these findings at 2:05 p.m., on

Augu~t 22, 2017, exactly 45 minutes after the .second amended writ was filed.

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page l
II.

Cummings objects to the manner in which the findings were signed, the

unusual procedure followed and the fact that there were several serious and

indefensible legal errors in the findings.

First, after significant briefing and discussion of the requirement that a lawyer

be allowed to respond to an ineffective assistance allegation, the Court signed agreed

findings that found Cummings ineffective on a ground that had never been raised or

pied and on which she was not given an opportunity to respond. Moreover, this

occurred after Keith Hampton, attorney for Applicant, stated, in open court, on

multiple occasions, that all ineffective assistance claims, other than the conflict

claim were waived. Of course, the ground the Court signed findings on had nothing

to do with an alleged conflict. Hampton's statements about what claims he was

pursuing were misleading to Cummings (and to the Court). However, by signing

findings on a ground never before pied, and without any notice to Cummings, the

Court allowed Hampton to reap the benefit of his misleading statements. The

procedure adopted by Hampton and the District Attorney was a clearly improper

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page 2
attempt to deny Cummings the opportunity to respond to this ineffective assistance

claim. 1

Second, the legal basis of the ineffective assistance claim on which signed

findings were entered is that the evidence against Kelley was legally insufficient

because the child did not make an in court identification and therefore it was

ineffective to waive appeal in exchange for an agreement to the minimum sentence.

In fact, a few minutes of legal research would reveal the unbroken line of cases that

say that a child sex abuse case can be proven strictly through the testimony of an

outcry witness and the testimony of the child is not even required. see, Tear v. State,

74 S.W.3d 555 (Tex App. Dallas-2002); Eubanks v. State, 326 S.W.3d 241 (Tex

App. Houston (1st Dist.) 2010); Rodriguez v. State, 819 S.W.2d 871 (Tex. Crim.

App. 1991); Riordan v. State, 2017 WL 3378889 (Tex. App.-Austin 2017).

The findings also do not address the trial record, which refutes the factual

claim. The trial record shows that although the child did not make an in-court

identification of Greg (because he testified via closed circuit TV), he did testify that

Greg was the person who had in fact abused him. His mother also testified that the

1In 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 condenmed as unprofessional and incompetent."

Patricia Cwnmings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page 3
child told her that Greg was the person who had abused him and Greg was also

identified by several persons as the Greg who the child was referring to. Under well

established and long standing law in Texas, some of which is cited above, this

testimony is legally sufficient to support a conviction because an in-court

identification by the child is not required. Had this case been challenged on appeal

on the basis that the child did not make an in-court identification of Applicant, the

Court of Appeals would have found the evidence to be legally sufficient. Thus, the

legal basis of this ineffective assistance claim is not even arguable and will certainly

be summarily rejected by the Court of Criminal Appeals.

Moreover, in a meeting between the Court, Cummings and Keith Hampton

(in chambers on August 3, 2017, prior to Cummings' in-court testimony), the

question of the waiver of appeal was raised. In this meeting Hampton acknowledged

that Cummings had consulted with him prior to the waiver of appeal being entered

in court. Yet, the Court signed findings prepared by Hampton and the District

Attorney stating there was no possible legitimate reason to waive appeal in exchange

for the minimum sentence, even though Hampton himself was consulted and

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page 4
provided his opinion that an appeal waiver was an intelligent option that Kelley

should seriously consider. 2

In fact, prior to waiving appeal, Cummings consulted with her co-counsel as

well as Hampton, and they jointly agreed that waiving appeal would minimize

Applicant's risk. Their advice was conveyed to Applicant. And, it is important to

note that while Applicant waived his right to appeal in order to receive the minimum

sentence, he did not waive his right to file a motion for new trial. The agreement

reached by Applicant with the prosecutors specifically preserved Applicant's right

to raise issues, such as the sufficiency of the evidence, in a motion for new trial.

However, at the time of the filing of the motion for new trial, Cummings was no

longer Applicant's lawyer so she was not in a position to raise this or any issues. In

fact, Cummings had referred Applicant and his family to Hampton to file a motion

for new trial. However, Hampton did not argue in any of his motions for new trial

that the evidence was insufficient because the child had not made an in-court

identification. If, as Hampton and the District Attorney now argue, the lack of an

in-court identification makes the evidence legally insufficient, Hampton could have

2This conversation occurred when Hampton informed Cummings that he was dropping all
ineffective assistance of counsel claims and he was going to call her as a witness to ask a
question about the decision to waive appeal. Cummings' response to Hampton was it was
Kelley's decision to waive the appeal and that she had consulted with Hampton at the time about
the issue of waiving appeal in exchange for the minimum sentence. Hampton then
acknowledged that Cummings had discussed the issue with him.

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page 5
and should have argued this in one or more of his motions for new trial. If he had

done so in 2014 and convinced the Court that the evidence was, in fact, legally

insufficient, Applicant would have not been in prison for the last three years.

The third area of concern is that the Court recently signed a search warrant

submitted by Texas Ranger Mitchell where he set out, in a detailed affidavit, facts

concerning his investigation, as well as his interview with Kelley. Yet, in signing the

findings, the Court ignored Rangers Mitchell's affidavit and relied upon the affidavit

of Kelley that was privately submitted to the Court on August 22, 2017, to justify

signing the agreed findings. 3 Moreover, the Court relied upon Kelley's private

affidavit in making this finding without even bothering to obtain an affidavit from

Cummings or her co-counsel, which is clearly required and expected by the Court

of Criminal Appeals.

Fourth, the court is well aware that the District Attorney and Hampton have

presented misleading arguments and withheld evidence from the court. For instance,

the Rangers search warrant affidavit sets out a substantial amount of information

which the District Attorney withheld from the court. And the District Attorney filed

a brief last week arguing that the court should find that Kelley wanted to argue that

'.Applicant's affidavit was not publicly released until August 23, 2017.

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page 6
Jonathan McCarty abused the child, while being in possession of an email from

Cummings' co-counsel, James McDermott, that said just the opposite. The court

knows that the District Attorney only corrected this misleading brief when he was

called on the misrepresentation by counsel for Cummings and the court was

informed of the misrepresentation. Moreover, the court is aware that Hampton has

misrepresented the law on ineffective assistance as it relates to conflicts by claiming

that proof of a conflict is all that is required to obtain relief. 4 Yet, even with this

history, the court allowed Hampton and the District Attorney to rush through agreed

findings in a manner that deprived Cummings, the Ranger, the press or anybody else

of the ability to even know what the allegations were. Effectively, the court

facilitated a secret proceeding, held behind closed doors, in order to push through an

ineffective assistance finding that does not stand up to the slightest scrutiny. Of

course, the idea of resolving writ issues in secret is contrary to the legal requirement

of open courts, as well as the first amendment rights of the press to observe and

report on court proceedings. 5

4 Of course, in this case, there is no conflict. Apparently, Hampton and the District Attorney
have realized this which may be why they submitted this new ineffective assistance claim after
Hampton repeatedly told the Court that the only ineffective assistance claim he was pursuing was
an alleged conflict.
5 It is a strange and alarming procedure to conduct substantial discussions that lead to the Court

signing these findings in a way designed to hide from the public and press what is actually
happening in this case. If the District Attorneys and Applicant's counsel believe this is a
legitimate claim, they should not be so afraid to deal with it in the usual manner, by obtaining a
response from trial counsel and arguing the merits of the claim in open court.

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page 7
III.

For these reasons, Cummings objects to the Jointly Stipulated Findings as they

relate to ineffective assistance and asks the Court to do the following:

1. Vacate the finding as to Ground Four.

2. Allow Cummings and her co-counsel to respond to this newly concocted

ineffective assistance allegation.

3. Properly apply the law to the facts and issue findings rejecting this allegation.

Respectfully submitted,

D~L-~~b~
~vJ~~~~
DAVID BOTSFORD
Bar Card No. 02687950

BOTSFORD & ROARK
1307 West Avenue
Austin, Texas 78701
512-476- 1900
512-479-8040 fax

~ - "/

GARY A. UDASHEN
Bar Card No. 20369590
gau@sualaw.com

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recolllillendation As
to Ground Four - Page 8
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
214-468-8100
214-468-8104 fax

Bar Card No. 208 6500

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
Patricia Cummings' Objections to Jointly Stipulated Findings of Fact, Conclusions
of Law and Recommendation As to Ground Four was delivered to the following
individuals, on this the _ _ day of August, 201 7:

Keith Hampton
Atto1ney for Applicant
1103 Nueces Street
Austin, Texas 78701

Shawn Dick
Williamson County District Attorney's Office
405 MK Blvd.
Georgetown, Texas 78626

Patricia Cummings' Objection to Jointly Stipulated Findings of Fact, Conclusions of Law and Recommendation As
to Ground Four - Page 9