Home invasion or aggravated assault: Witnesses not called…
Columbus, Colorado County, Texas – Exhibit 4 looks like some kind of snapshot from a demented family album. But it’s bound into a dreaded “red jacket” in the 25th State District Clerk’s Office, as ‘Exhibit 4’ in the official court record of a felony trial that put a man in the pen for an enhanced sentence of 65 years as an habitual offender – the “little bitch.”
One glance tells the story. Someone wanted to hurt Christopher Lujan very badly, so the shooter aimed the black .22 six-shooter at his groin, and as he twisted away from the muzzle, the bullet missed his genitals and pierced his peritoneal cavity.
Add in the fact that it was way past beer-thirty – 3 a.m. on a boozy August night in 2006 in the rural suburb of Eagle Lake – and you begin to get a grip on the background to this fine mess. Amado Hernandez Aguilar had not been free from the penitentiary and parole term he was still serving for burglary of a habitation for the five years required for a felon to legally own a firearm. What’s more, when the officers arrested him later, he was still drunk. They initially charged him with public intoxication. Not good.
The shooting victim – fresh back home from a helicopter ride to a Houston emergency ward – identified Aguilar as his assailant. He gave officers a statement that included details of how he had been at the Aguilar residence earlier in the evening, had words with his alleged assailant, and left. Lujan said Aguilar had pulled the gun and displayed it; he told Lujan he was going to shoot him. Lujan said he told Aguilar that if he was going to shoot him, go ahead, but, Lujan told the cops, Aguilar thrust the gun back into his waist band, said the gun was for “the Casanova brothers.”
When he returned, he wanted to visit David Aguilar, who had already gone inside. As he tried to walk past Aguilar and “some girl called Misty,” he stepped onto the porch to knock on the door. Amado Aguilar asked him, “Are you trying to sneak up on me?” He then pulled the same gun he had earlier displayed as they argued. Aguilar shot him from where he stood in the yard. He crouched over Lujan, according to the victim’s statement, and pointed the gun at his head, asking if he wanted him to shoot him again.
Unable to walk due to the severity of the pain, Lujan crawled away to a spot where he collapsed halfway in the yard and half in the street, where officers snapped his picture when they arrived.
When prosecutors presented the case to a Grand Jury, they asked for and got an indictment for aggravated assault with a firearm, a second degree felony that calls for a minimum term of 25 years in the penitentiary, enhanced by the fact that he was at the time of the alleged offense a convicted felon in illegal possession of the firearm, an aggravated offense that calls for enhancement to 65 years as an habitual offender.
Standing trial is for Amado Aguilar a time of intense activity, punctuated by flurries of filing motions to dismiss his court-appointed counsel, then seeking redress with The State Bar of Texas to discipline his trial lawyers and appellate counsel for various transgressions.
His claims of ineffective counsel and court error have now been rejected by the 14th District Court of Appeals in Houston and the Court of Criminal Appeals at Austin. He is headed for U.S. District Court in Houston, and his complaints have something in common with an increasing chorus heard far and wide in the The Lone Star State. Members of the defense as well as prosecution bars have been clamoring for reform of the procedures used in courts statewide to discover exculpatory evidence that could exonerate accused offenders. In many cases, convicted felons have been released from penitentiary cells after serving many years when crusading lawyers have discovered evidence that exonerated them of their crimes – evidence that was previously undisclosed due to “agreed orders for discovery.”
Aguilar alleges that lawyers who have appeared in his behalf have by omission withheld vital discovery information that could exonerate him by various means, including dragging their feet to argue motions before the Court, stalling in timely filing of applications for appeal or writs, the outright failure to call witnesses or to cross examine prosecution witnesses, and ignoring his demands for action and more action in the investigation of witnesses who, he now claims have “new discovery” that will show a jury he is innocent.
Texas courts have responded by saying that his points on appeal consist of harmless error regarding moot points and dismissed them out of hand, without publishing their holdings.
Incarcerated at the James Allred Unit near Wichita Falls in 2008, he churns out lengthy writs and motions on a daily basis in turgid legalese that is filled with typos, syntactical vagaries, and terribly twisted grammatical usages.
A sample: “The crime scene photographs adduced at trial, while tending to support Wilson’s account of Luhan’s (sic) condition, also depict Luhan laying approximately 10 to 15 feet to the left of where the walkway, leading from the doorstep of the residence Luhan testified that he went to first, intersects with the road, which fully evinces, to be where he was at, when Wilson arrived, Luhan would have been going in the wrong direction to reach his professed destination. See (Exhibit-3). Also compare, Luhan’s testimony. (S.F.Vol.1.pgs. 168-169).”
And so it goes, banker boxes filling with material, two volumes of the red jackets thickening by the days and weeks and months that pass.
Nevertheless, his allegations of his attorneys’ malfeasance are serious. Among them:
- Counsel refused to investigate a number of witnesses or visit the crime scene;
- The appeals attorney filed his application 108 days late;
- Counsel refused to get 9-1-1 tapes and interview the caller;
- The victim was not shot at the Aguilar residence, but in another location;
- Counsel refused to obtain copies of witness statements;
- Counsel intentionally misrepresented (defendant’s) request for continuance;
- Counsel claimed a critical misrepresentation of when officers found the victim;
- Counsel was aware of the lack of evidence to prove that;
Defendant had only one encounter with the victim – when he told him to leave.
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