Ex parte Skelton

• Decision Date: 28 May 2014
• Docket Number: No. 04–12–00066–CR.,04–12–00066–CR.
• Parties: Ex Parte Patricia Foster SKELTON.
• Court: Texas Court of Appeals

434 S.W.3d 709

Ex Parte Patricia Foster SKELTON.

No. 04–12–00066–CR.

Court of Appeals of Texas, San Antonio.

May 28, 2014.

Nancy B. Barohn, Attorney At Law, San Antonio, TX, for Appellant.

Daniel J. Kindred, 38th District Attorney, Hondo, TX, Edward F. Shaughnessy, III, Attorney At Law, San Antonio, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, REBECA C. MARTINEZ, Justice, LUZ ELENA D. CHAPA, Justice.

OPINIONOpinion on Rehearing

Opinion by: LUZ ELENA D. CHAPA, Justice.

On July 10, 2013, we issued an opinion and judgment affirming the trial court's order denying Patricia Foster Skelton habeas relief from her conviction for forgery. After Skelton timely filed a motion for rehearing, we invited the State to file a response, which it did not do. We grant Skelton's motion because we conclude we did not fully address one of the grounds supporting her ineffective assistance of counsel claims on original submission. We therefore withdraw our opinion and judgment of July 10, 2013, and issue this opinion and judgment in their place.

Skelton appeals from the habeas court's order denying her application for habeas relief as frivolous. She applied for habeas relief on three grounds, claiming that she is actually innocent, she was denied a fair trial due to prosecutorial misconduct, and she received ineffective assistance of counsel. We now hold Skelton proved by a preponderance of the evidence that her trial counsel performed below an objective standard of reasonable representation and his deficient performance prejudiced her defense. Therefore, we reverse the trial court's order, grant relief, and vacate Skelton's conviction and sentence so that she may receive a constitutionally fair trial.

Background

Skelton was convicted by a jury of forging the will of a deceased client, Ysidro Canales. The investigation into Skelton began after Canales died and his nephew asked Skelton to file his will with the court. Skelton's paralegal suspected that the will filed by Skelton was forged, and she reported her suspicions to the Real County Sheriff. The sheriff asked Texas Ranger Coy Smith to lead the investigation of Skelton because she had previously served as the county attorney of Real County. Ranger Smith secured a search warrant for Skelton's office and led the search. This was when Skelton first became aware that she was being investigated.

A person commits the offense of forgery if she forges a writing with intent to defraud or harm another. Tex. Penal Code Ann. § 32.21(b) (West 2011). The State alleged Skelton committed the act of forgery by altering a writing so it purported to be an act of Canales, who did not authorize the act. See id. § 32.21(a)(1)(A)(i). At trial, the prosecution and the defense agreed that Skelton had literally cut and pasted the signatures of Canales and two witnesses onto a writing purporting to be a will executed by Canales. She then photocopied the altered document and filed that copy with the court. She did not inform the court that neither Canales nor the witnesses ever signed that particular document. The primary point of contention at trial was whether Skelton had acted “with the intent to harm or defraud.” ¹

The prosecution contended that Skelton fabricated the terms of the will out of whole cloth to the benefit of Canales's nephew, who was the main beneficiary of the will filed by Skelton. One of the motives alleged by the prosecution was that Skelton was afraid Canales's nephew would sue her for malpractice if she could not produce Canales's will. To support its theory of the case, the prosecution presented evidence that suggested neither Skelton nor Canales could have met in her office in Leakey, Real County, Texas, to execute a will on the date stated on the filed copy. The prosecution presented evidence that Skelton attended a hearing in Kerrville, Kerr County, Texas, on the morning of the alleged date of the will's execution. And two of Canales's relatives, who would receive a larger share of Canales's estate if he had died intestate than under the terms of the filed will, testified that Canales was on his way to gamble in Louisiana with his sister that afternoon. The prosecution contended that Skelton's act in filing the purported will was circumstantial evidence that she altered the filed will with the intent to harm or defraud the court and Canales's relatives who would have received a larger share of Canales's estate, had he died intestate.

The defense contended that the will filed by Skelton accurately represented a will actually executed by Canales. Skelton testified the document she created was a computer printout of a will that Canales validly executed while he was still alive. She testified Canales kept the original will, which was never produced, and that after Canales died, she located the signed copy of the will she kept in her office. Skelton testified the signed copy was severely water damaged from a flood her office suffered the year before, rendering parts of it legible and others not. She had cut out signatures from the signed copy of Canales's will and pasted them onto a new copy of the will, and admitted she did not inform the court of what she had done. She testified she did not know she could probate an unsigned copy of his will. Both of the witnesses whose signatures Skelton attached to the filed will testified that they had witnessed Canales execute a will on the date stated. Under the defense's theory of the case, Skelton did not act with the intent to harm or defraud anyone because the will she filed completely and accurately represented Canales's intentions.

Skelton was convicted, sentenced to a suspended one-year term of imprisonment, and placed on community supervision for two years. Her term of community supervision was stayed pending the disposition of her direct appeal. She appealed her conviction to this court, and we affirmed the judgment. Skelton v. State, No. 04–08–00720–CR, 2010 WL 2298859 (Tex.App.-San Antonio June 9, 2010, pet. ref'd) (mem. op., not designated for publication). Skelton's term of community supervision began to run after the issuance of our mandate.

During the State's investigation of Skelton, some of Canales's relatives contested Canales's purported will.² That court stayed the will contest until Skelton's criminal trial was completed. After Skelton's conviction, the probate case resumed, and the fact of Skelton's forgery conviction was entered into evidence. The civil jury found (1) that Canales executed a valid will, (2) that Skelton did not forge the will she filed with the court, and (3) that the probated will was an accurate copy of Canales's will. The jury question that specifically asked whether Skelton had forged the will offered for probate used the Texas Penal Code's definition of forgery and other relevant terms.

While on community supervision, Skelton applied for a writ of habeas corpus under article 11.072 of the Texas Code of Criminal Procedure and requested an evidentiary hearing.³SeeTex.Code Crim. Proc. Ann. art. 11.072 (West Supp.2013) (establishing procedure for habeas application seeking relief from order or judgment ordering community supervision). The habeas court did not hold a hearing, determined from the face of the application that Skelton was manifestly not entitled to relief, and denied Skelton's application as frivolous without making written findings of fact or conclusions of law. On appeal, Skelton initially asked this court to reverse the habeas court's order, or in the alternative, to remand the case for an evidentiary hearing on her habeas application. We abated the appeal and remanded the case to the habeas court to conduct an evidentiary hearing and to make written findings of fact and conclusions of law with respect to Skelton's ineffective-assistance-of-counsel claim. The parties have filed supplemental briefs based on the record of the hearing and the habeas court's findings of fact and conclusions of law.

Standard of Review

The habeas court may dispose of an application for habeas corpus under article 11.072 of the Texas Code of Criminal Procedure in two ways. The court shall deny an application as frivolous “[i]f the court determines from the face of an application or documents attached to the application that the applicant is manifestly entitled to no relief.” Tex.Code Crim. Proc. Ann. art. 11.072, § 7(a). In all other cases, the court must make written findings of fact and conclusions of law when granting or denying relief. Id.

We review de novo the habeas court's determination that an application is frivolous on its face and that the applicant is manifestly not entitled to relief. Ex parte Zantos–Cuebas, 429 S.W.3d 83, 88–89 (Tex.App.-Houston [1st Dist.] 2014, no pet.). However, when the habeas court has made written findings and conclusions in support of its order, we review the court's order for an abuse of discretion. Ex parte Garcia, 353 S.W.3d 785, 787–88 (Tex.Crim.App.2011) (adopting the abuse-of-discretion standard articulated in Guzman v. State, 955 S.W.2d 85 (1997) for appellate review of article 11.072 habeas proceedings). The habeas court is the sole finder of fact in an article 11.072 habeas proceeding, and we afford almost total deference to its determinations of historical fact that are supported by the record, especially when those findings rely on evaluations of witnesses' credibility and demeanor. Id.;Ex parte Urquhart, 170 S.W.3d 280, 283 (Tex.App.-El Paso 2005, no pet.). The trial court's application of the law to the facts is accorded the same deference if it turns on points of evidence related to credibility and demeanor. Urquhart, 170 S.W.3d at 283; see Guzman, 955 S.W.2d at 89. But if the resolution of those ultimate questions turns only on the application of legal standards, the trial court is not in an appreciably better position than an appellate court to make that determination, and we review de novo. Ex parte Mello, 355 S.W.3d 827, 832 (...