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Click here for the full text of this decision FACTS:On Feb. 6, 1998, the complainant in this case was brutally beaten at her place of employment, Burk’s Plumbing, a business co-owned by her father. Two days before this assault, she had had a heated verbal altercation with Gilbert Amezquita, who was working there at the time of the argument. Amezquita was employed by a bail-bond company but had been loaned to Burk’s Plumbing. After the argument, he left the plumbing business and did not return. The complainant remained in a coma for 10 days and after recovering consciousness was unable to tell police investigators who had assaulted her. On Feb. 25, 20 days after the assault, when asked by police who had hurt her, the complainant whispered the name Gilbert. She eventually selected Amezquita’s photograph out of a photo spread, identified him at trial as her attacker and testified at trial that applicant committed the assault on her. Amezquita, a military veteran with no criminal record, vehemently denied that he was the perpetrator and at the writ hearings presented evidence in support of his contention that an employee of the plumbing company, Alonzo “Gilbert” Guerrero, a parolee with a criminal history that included convictions for violent offenses, had committed the assault. Testimony presented at the hearing included evidence connecting the complainant’s missing cell phone to Guerrero and showed that, shortly before the assault, there had been a confrontation between the complainant’s brother and Guerrero over Guerrero’s behavior toward the complainant. Amezquita asserted a number of claims, including allegations of ineffective assistance of counsel. After conducting multiple evidentiary hearings, the trial court made findings of fact and conclusions of law. The trial court also found the trial counsel did not investigate information contained within the police offense report which would have lead to information reflecting that an Alonzo Gilbert Guerrero had some relevance to the primary case. It also specifically found that, had trial counsel investigated the names and cell phone numbers contained within the police offense report, he would have had reason to investigate Alonzo Gilbert Guerrero prior to or after Amezquita’s trial in the primary case. Based upon writ-hearing testimony from an assistant district attorney, the trial court found that, in 2002, that assistant district attorney, accompanied by a district attorney’s investigator, had spoken with Christina Allen, who had been linked to phone calls made from the complainant’s cell phone after the assault alleged in the primary case. The trial court found that the assistant district attorney and investigator also met with a state-jail inmate, James Wilder, who told them that he had been in possession of the complainant’s cell phone immediately after the assault in the primary case and that he identified Alonzo Gilbert Guerrero from a photo spread as the person from whom he had obtained the cell phone, but was unable to identify anyone in a photo spread which contained applicant’s photo. HOLDING:The Court of Criminal Appeals (CCA) granted habeas corpus relief and ordered a new trial. To obtain habeas corpus relief for ineffective assistance of counsel under the Strickland v. Washington, 466 U.S. 668 (1984), the CCA stated that Amezquita must show that his counsel’s performance was deficient and that a sufficient probability exists that the outcome would have been different but for counsel’s deficient performance. The CCA stated there was no evidence that Amezquita was ever in possession of the complainant’s cell phone. Neither was there evidence, other than the complainant’s post-assault testimony, that Amezquita was at the plumbing business on the day of the assault, the CCA stated. The CCA concluded that in making reasonable deductions, the evidence showed that the attacker took the complainant’s cell phone. But there was no evidence, the CCA stated, that Amezquita was ever in possession of the complainant’s cell phone, nor was there evidence, other than the complainant’s post-assault testimony, that Amezquita was at the plumbing business on the day of the assault. In contrast, the CCA noted that the record contained evidence that Alonzo Gilbert Guerrero, a parolee with a history of violent crime and who had recently been confronted about his harassment of the complainant, was at the plumbing business the day of the assault and possessed the complainant’s cell phone shortly after the attack. The circumstantial evidence supports such a conclusion that Guerrero was the attacker, the CCA majority found. Amezquita’s counsel performed deficiently by failing to investigate the evidence involving the complainant’s cell phone, the CCA held. In addition, the CCA held that the trial counsel’s deficient performance undermined confidence in the result of the trial and so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. OPINION:Johnson, J., delivered the opinion of the court in which Price, Womack, Holcomb and Cochran, J.J., joined. CONCURRENCE:Cochran, J., filed a concurring opinion. “The trial judge found that trial counsel was constitutionally ineffective and she recommends that applicant be granted a new trial. There is sufficient evidence in the record that supports her findings and recommendation. I therefore agree that we should accept her recommendation, although, based upon the conflicting (sometimes contradictory) evidence, I would also have deferred to contrary factual findings and recommendations.” DISSENT:Hervey, J., filed a dissenting opinion in which Keller, P.J., Meyers and Keasler, J.J., joined. “This record contains no evidence that the victim’s cell phone was taken by her attacker or that she even had her cell phone during the attack. And, other than unsupported-by-the-record assertions of applicant’s writ counsel, there is nothing in the record to show that Guerrero was even at the plumbing company at the time of the assault with a not-getting-his-paycheck motive to harm the victim. The victim knew applicant and identified him as her attacker by name and in person. She has not recanted her testimony. I would decide that applicant has not sustained his burden of establishing his right to habeas corpus relief.”

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