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San Jacinto News-Times - Local News
Stories Added - June 2010
Copyright 2010 - Polk County Publishing Company

Defense attorney tells his side of story
(Response following story)

San Jacinto News- Times

COLDSPRING – In an opinion delivered June 9, 2010 in the Texas Court of Criminal Appeals it is stated that a San Jacinto County resident was sentenced to 10 years’ imprisonment on a Class A misdemeanor. Robert E. Henderson was granted “relief” and the judgment in Cause No. 9466-A in the 411th Judicial District Court of San Jacinto County was set aside and Henderson was remanded to the custody of the county sheriff to answer the charges as set out in the indictment. Receiving a copy of the opinion from the Texas Court of Criminal Appeals, the San Jacinto News-Times went to the San Jacinto County District Clerk’s offi ce to look at the case in Cause No. 9466-A and get background information as to how a man could be sentenced to 10 years for a Class A misdemeanor which is punishable by a fi ne not to exceed $4,000; confi nement in jail for a term not to exceed one year; or both such fi ne and confi nement. Many of the documents were sealed in the two folders containing information about Cause No. 9466-A and therefore, could not be researched. Information from some of those that were researched was made into a front page story in the June 17, 2010 San Jacinto News-Times. In those public record documents were statements made by Henderson’s appeals attorney Richard Burroughs who made accusations about Henderson’s representation from his court appointed attorney Travis Kitchens. Burroughs stated that “the case was a travesty of justice,” and that Kitchens was “a 6th Amendment ornament who did not deserve the paltry wages for the meager effort put forth in Henderson’s defense.” The San Jacinto News-Times attempted to contact Burroughs about Cause No. 9466-A, but our telephone call was not returned. We failed to contact Kitchens for comments. After reading the June 17, story in the San Jacinto News- Times, Kitchens contacted the newspaper and was invited to give his side of the story. Kitchens brought up three interesting points in his comments. He states the Texas Court of Appeals for a new trial on punishment obtained by Burroughs raises three interesting legal questions for the State of Texas, Burroughs and the courts: 1. Can the State of Texas re-fi le the more serious resisting arrest with a deadly weapon charge, or will double jeopardy prevent further prosecution of this charge? 2. Can the State of Texas, now that the defect in its indictment for terroristic threat has been acknowledged, re-indict Henderson and make the allegations necessary to make the terroristic threat charge a felony? 3. Can the State of Texas review the Texas Penal Code to see what other felony charges can be fi led against Henderson for his prior actions or does double jeopardy prevent any further prosecution for anything that Mr. Henderson did before Jan. 18, 2010? “Answers to these questions will have to be answered by the courts in the coming months,” Kitchens states. Kitchens was asked by the News-Times to comment on several questions, among which are: 1) Although the grand jury indictment in Cause No. 9466-A charged Henderson with a third degree felony, in the caption the elements actually set fort in the indictment charged only a Class A misdemeanor. How do you think this happened and how do you think it escaped being noticed before sentencing and sending Henderson to prison for 10 years? 2) How did you decide that Henderson was psychologically competent for trial and sentencing when two doctors actually said he was incompetent? In a five page response to the June 17 story, Kitchens made the following statements concerning the opinion delivered June 9 in the Texas Court of Criminal Appeals, saying that my questions would be answered within his five page letter. Kitchens’ response is printed here in its entirety: “This letter is written in response to the front page article your company ran in the June 17, 2010 San Jacinto News- Times, entitled “Man sentenced to 10 years in prison for misdemeanor gets case overturned.” This article goes from printing some of the facts concerning the circumstances surrounding Mr. Henderson and the August 4, 2006 incident where he held numerous law enforcement and other persons at bay for some six (6) hours before he was finally taken into custody to a personal attack against me by attorney Richard Burroughs, where my reputation as an attorney in this area for the last thirty-two (32) plus years was impugned. It is my understanding from our telephone conference on Saturday, June19, 2010 that your article was based on “public records,” primarily pleadings filed by Mr. Burroughs, and not from an interview with Mr. Burroughs. “I would like to congratulate Mr. Burroughs on his zealous representation of Mr. Henderson. Mr. Burroughs has, in his legal career, zealously represented his clients. I would like to believe that I have done likewise. However, that being said, I must take issue with Mr. Burroughs’ failure to accurately and fully relate all of the facts concerning Mr. Henderson in this complicated prosecution resulting from the emotional upheaval from a divorce. “I believe that if you were to review all of the public files and transcripts concerning Mr. Henderson, including those in the County Clerk’s office and the District Clerk’s office, and including the resisting arrest with a deadly weapon charge that was dismissed by the State pursuant to the agreement of Mr. Henderson to plead no contest to the terroristic threat charge, the protective order and the divorce file, you might get a better understanding of the complexity of this case. “Nonetheless, I think that in its effort to report facts correctly a news organization would contact a person whose reputation is attacked by an attorney in a public record so that such person can have an opportunity to respond before the article is run as “fact.” “The response I am providing you can be found in the public records and testimony from public hearings. A. My representation of Mr. Henderson “On October 3, 2007 I was appointed to represent Mr. Henderson by 258th Judicial District Court Judge Elizabeth Coker. My first appearance in Court on Mr. Henderson’s behalf was on October 3, 2007. At the time of my appointment, Mr. Burroughs was representing Mr. Henderson in his divorce proceeding in San Jacinto County, Texas. “As an attorney representing a citizen accused of a crime, it is my responsibility to investigate the facts and circumstances surrounding the criminal charges against the citizen, and to find the best possible result concerning the facts and circumstances involved in the criminal prosecution. Sometimes that involves leaving the matter up to jurors, sometimes to judges, but most of the time through plea bargain and charge bargaining agreements. “In Mr. Henderson’s case, as is my normal practice, I interviewed Mr. Henderson (on several occasions), I obtained the police reports, the psychiatric evaluations, and the videos of the standoff. I did additional research concerning the charges and the issue of competency. Over the next several months I had several conversations with Mr. Henderson. I also discussed the case with the prosecutors to determine what resolution, if any, could be made of the cases. “At the time of my appointment, Mr. Henderson was charged with two felonies. Of these two charges, the more serious offense, in my opinion, was the resisting arrest charge because such charge contained an allegation of the use of a deadly weapon. When resisting arrest is committed while using a deadly weapon, the use of the deadly weapon elevates the offense to a third degree felony. When the Court makes a finding of the use of a deadly weapon, the defendant is not entitled to good time credit nor consideration for parole until that person has served at least one-half of the sentence. “Mr. Henderson’s case had what is called a “charge bargaining” agreement; sometimes this is referred to as a “plea bargain.” The agreement in his case was for the dismissal of the most serious offense, the resisting arrest with a deadly weapon, and a “no contest” plea to the offense charged in the indictment. It should be noted that neither in the indictment, nor in the ensuing judgment, concerning the terroristic threat, is there use of the word “deadly weapon.” Indeed, the ensuing judgment specifically found no deadly weapon used in the commission of the offense. This was part of the chargebargaining agreement. Further, under Texas law a person found to have used a deadly weapon cannot be given community supervision (also known as probation) for that offense. The only way a person can get community supervision for a felony offense that involves use of a deadly weapon is if the person pleads no contest or guilty and the Judge places the person on probation without a finding of guilty. This is called “deferred adjudication.” When the no contest plea was entered on January 18, 2008, Judge Coker specifically deferred a finding of guilt (i.e. she deferred adjudication). “The record reflects that Mr. Henderson, on February 27, 2008, specifically stated that he did not want probation; however, as part of the papers filed on January 18, 2010 there was an eligibility of probation statement made, so he was eligible for probation. Mr. Burroughs also requested the Court, in the new trial hearing, to grant Mr. Henderson probation. This was denied by Judge Trapp. “The “charge-bargaining” (i.e. plea bargain) agreement provided that the offense of resisting arrest with a deadly weapon would be dismissed. The agreement was placed on record, in open court, on January18, 2008. There was no finding of use of a deadly weapon on the terroristic threat charge, thus the Court could grant probation and/or if Mr. Henderson was sent to prison then he would become eligible for good time credit and/or parole without having to wait until he had served one-half of his sentence. He was also given credit for all time in jail back to August 4, 2006. Indeed, the Texas Department of Criminal Justice website shows Mr. Henderson’s “parole eligibility date” as September 29, 2007, which was five (5) months before he was sentenced. Thus, at the time of his sentencing on February 27, 2008 he was already eligible for parole. “Additionally, if the trial court sentenced Mr. Henderson to prison without probation, the court could consider releasing Mr. Henderson from prison on probation after Mr. Henderson had been in prison at least 90 days, but before 180 days from the sentence. This is often called “shock probation.” As things worked out, my representation of Mr. Henderson ended when Mr. Burroughs, after his representation of Mr. Henderson in his divorce ended and apparently retained by Mr. Henderson, took over his representation in the criminal prosecution and filed a Motion for New Trial on March 28, 2008. From my review of the public record, Mr. Burroughs did not file an application for shock probation. B. Competency to Stand Trial “Mr. Burroughs has alleged that Mr. Henderson was not competent to stand trial. This allegation was rejected by the Beaumont Court of Appeals, in their written opinion. “It is a requirement of the law that an accused citizen be competent to stand trial. Article 46B.003 of the Texas Code of Criminal Procedure provides ‘( a) A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person. (b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.’ “After his arrest, and while waiting trial, Mr. Henderson had three psychiatric evaluations. These three evaluations were acknowledged by the Beaumont Court of Appeals in its October 23, 2009 opinion. However, the June 17, 2010 newspaper article, apparently relying on Mr. Burroughs’ pleadings, mentions only two of these evaluations. The second evaluation, where Mr. Henderson was found competent, was not mentioned. The Beaumont Court of Appeals rejected Mr. Burroughs’ argument that Mr. Henderson was incompetent to stand trial. “When I was appointed on October 3, 2007, Mr. Burroughs was representing Mr. Henderson in the contested divorce action. At no time did Mr. Burroughs contact me and advise me that he thought Mr. Henderson was not competent to stand trial. The public record will reflect in November 2007 a sworn Inventory and Appraisal where Mr. Henderson itemized all the property involved in the divorce action. The public record will also show that Mr. Burroughs allowed Mr. Henderson to testify at the divorce hearing on January 31, 2008, just a few days after the January 18, 2008 no contest plea and less than a month before the sentencing hearing on February 27, 2008. At this hearing Mr. Henderson testified for one and a half hours. His testimony involved a discussion of the criminal prosecution, his properties and what he wanted the court to award him. “In his ‘Motion for Reasonable Bail Pending Appeal,’ filed on March 28, 2008, Mr. Burroughs attached a proposed bond for $10,000.00, signed March 27, 2008. Mr. Burroughs signed Mr. Henderson’s name to this document as “Robert E. Henderson Principal by Richard R. Burroughs, Power of Attorney.” A person has to be competent, and of sound mind, to sign a power of attorney. Where is this power of attorney and when was it signed by Mr. Henderson? Mr. Burroughs did not appear in the divorce action under October 2, 2007. Did Mr. Henderson sign a power of attorney to Mr. Burroughs after October 2, 2007 and before March 27, 2008? “At no time during my representation did I feel that Mr. Henderson was not competent to stand trial. As required by the presumption contained in Article 46B.003, I believed that Mr. Henderson had both a sufficient present ability to consult with the person’s lawyer (i.e. me) with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against the person. This opinion was formed after over thirty (30) years of practicing law, having worked in a psychiatric hospital, and my interviews with Mr. Henderson. This conclusion was placed on the court’s record on December 12, 2007. If I had not formed this opinion of competency, then I would have required the issue be resolved by the Court, or a jury, during a competency hearing. C. The effects of the Charge- Bargaining Agreement “Mr. Burroughs attacks me for not moving to quash the Terroristic Threat indictment against Mr. Henderson. He neglects to discuss the dismissal, as part of the plea bargain agreement, of the more serious resisting arrest with a deadly weapon charge, also a third degree felony. “In response to Mr. Burroughs’ allegations in the Writ of Habeas Corpus, had I filed a motion to quash the terroristic threat indictment, and the charging defect been pointed out, the State of Texas could have gone back to the grand jury and figured out what the correct charge was to make terroristic threat a felony under Section 22.07. If the State figured out how to charge a felony terroristic threat, then the end result would have been the same - a ten (10) year sentence. If the State could not have figured out how to make a felony terroristic threat, then it would not have dismissed the resisting arrest with a deadly weapon charge against Mr. Henderson, as the State was intent on convicting Mr. Henderson of a felony and putting him in prison for the maximum. If Mr. Henderson had been convicted of resisting arrest with a deadly weapon, then he would have had to serve at least five (5) years before receiving any good time credit or consideration for parole. “The remand by the Texas Court of Appeals for a new trial on punishment obtained by Mr. Burroughs raises three interesting legal questions for the State of Texas, Mr. Burroughs and the Courts: 1. Can the State of Texas refile the more serious resisting arrest with a deadly weapon charge, or will double jeopardy prevent further prosecution of this charge? 2. Can the State of Texas, now that the defect in its indictment for terroristic threat has been acknowledged, re-indict Mr. Henderson and make the allegations necessary to make the terroristic threat charge a felony? 3. Can the State of Texas review the Texas Penal Code to see what other felony charges can be filed against Mr. Henderson for his prior actions, or does double jeopardy prevent any further prosecution for anything that Mr. Henderson did before January 18, 201O? “Answers to these questions will have to be answered by the Courts in the coming months. D. Conclusion “I cannot speak to the motives of Mr. Burroughs in his personal attacks on me in the pleadings your newspaper quoted in its June 17, 2010 article. Mr. Burroughs, early on in his representation of Mr. Henderson, attempted to bring this issue to the attention of the courts but his argument was rejected for two and a half years by a variety of judges and courts until June 9, 2010. Again, my congratulations to Mr. Burroughs for his zealous representation of Mr. Henderson. “I realize that this letter is quite lengthy; however the article to which this is addressed took up a large part of the front page of the San Jacinto News-Times and continued on several pages inside the paper. Had your newspaper performed a diligent investigation, these facts, as well as others I have placed in this letter, could have been presented in your June 17,2010 article, and a “fair and balanced” treatment could have been presented to your readers for their evaluation of Mr. Burroughs’ accusations that my representation of Mr. Henderson was a ‘travesty of justice”’and I was nothing more than ‘a 6th Amendment ornament who did not even deserve the paltry wages for the meager effort that [I] put forth in Henderson’s defense.’ Based on all the facts and circumstances in this case, which are of public record if one looks hard enough, I would respectfully disagree with Mr. Burroughs’ allegations. “I respectfully request that you complete your investigation into the full facts in this matter, if you feel the same is news worthy, and further publish this response, in its entirety, so that your readers will, as Paul Harvey said at the conclusion of his broadcasts, know ‘the rest of the story.’ Respectfully submitted, Travis E. Kitchens, Jr

 

Defense attorney tells his side of story

San Jacinto News- Times COLDSPRING - In an opinion delivered June 9, 2010 in the Texas Court of Criminal Appeals it is stated that a San Jacinto County resident was sentenced to 10 years' imprisonment on a Class A misdemeanor. Robert E. Henderson was granted "relief" and the judgment in Cause No. 9466-A in the 411th Judicial District Court of San Jacinto County was set aside and Henderson was remanded to the custody of the county sheriff to answer the charges as set out in the indictment. Receiving a copy of the opinion from the Texas Court of Criminal Appeals, the San Jacinto News-Times went to the San Jacinto County District Clerk's offi ce to look at the case in Cause No. 9466-A and get background information as to how a man could be sentenced to 10 years for a Class A misdemeanor which is punishable by a fi ne not to exceed $4,000; confi nement in jail for a term not to exceed one year; or both such fi ne and confi nement. Many of the documents were sealed in the two folders containing information about Cause No. 9466-A and therefore, could not be researched. Information from some of those that were researched was made into a front page story in the June 17, 2010 San Jacinto News-Times. In those public record documents were statements made by Henderson's appeals attorney Richard Burroughs who made accusations about Henderson's representation from his court appointed attorney Travis Kitchens. Burroughs stated that "the case was a travesty of justice," and that Kitchens was "a 6th Amendment ornament who did not deserve the paltry wages for the meager effort put forth in Henderson's defense." The San Jacinto News-Times attempted to contact Burroughs about Cause No. 9466-A, but our telephone call was not returned. We failed to contact Kitchens for comments. After reading the June 17, story in the San Jacinto News- Times, Kitchens contacted the newspaper and was invited to give his side of the story. Kitchens brought up three interesting points in his comments. He states the Texas Court of Appeals for a new trial on punishment obtained by Burroughs raises three interesting legal questions for the State of Texas, Burroughs and the courts: 1. Can the State of Texas re-fi le the more serious resisting arrest with a deadly weapon charge, or will double jeopardy prevent further prosecution of this charge? 2. Can the State of Texas, now that the defect in its indictment for terroristic threat has been acknowledged, re-indict Henderson and make the allegations necessary to make the terroristic threat charge a felony? 3. Can the State of Texas review the Texas Penal Code to see what other felony charges can be fi led against Henderson for his prior actions or does double jeopardy prevent any further prosecution for anything that Mr. Henderson did before Jan. 18, 2010? "Answers to these questions will have to be answered by the courts in the coming months," Kitchens states. Kitchens was asked by the News-Times to comment on several questions, among which are: 1) Although the grand jury indictment in Cause No. 9466-A charged Henderson with a third degree felony, in the caption the elements actually set fort in the indictment charged only a Class A misdemeanor. How do you think this happened and how do you think it escaped being noticed before sentencing and sending Henderson to prison for 10 years? 2) How did you decide that Henderson was psychologically competent for trial and sentencing when two doctors actually said he was incompetent? In a five page response to the June 17 story, Kitchens made the following statements concerning the opinion delivered June 9 in the Texas Court of Criminal Appeals, saying that my questions would be answered within his five page letter. Kitchens' response is printed here in its entirety: "This letter is written in response to the front page article your company ran in the June 17, 2010 San Jacinto News- Times, entitled "Man sentenced to 10 years in prison for misdemeanor gets case overturned." This article goes from printing some of the facts concerning the circumstances surrounding Mr. Henderson and the August 4, 2006 incident where he held numerous law enforcement and other persons at bay for some six (6) hours before he was finally taken into custody to a personal attack against me by attorney Richard Burroughs, where my reputation as an attorney in this area for the last thirty-two (32) plus years was impugned. It is my understanding from our telephone conference on Saturday, June19, 2010 that your article was based on "public records," primarily pleadings filed by Mr. Burroughs, and not from an interview with Mr. Burroughs. "I would like to congratulate Mr. Burroughs on his zealous representation of Mr. Henderson. Mr. Burroughs has, in his legal career, zealously represented his clients. I would like to believe that I have done likewise. However, that being said, I must take issue with Mr. Burroughs' failure to accurately and fully relate all of the facts concerning Mr. Henderson in this complicated prosecution resulting from the emotional upheaval from a divorce. "I believe that if you were to review all of the public files and transcripts concerning Mr. Henderson, including those in the County Clerk's office and the District Clerk's office, and including the resisting arrest with a deadly weapon charge that was dismissed by the State pursuant to the agreement of Mr. Henderson to plead no contest to the terroristic threat charge, the protective order and the divorce file, you might get a better understanding of the complexity of this case. "Nonetheless, I think that in its effort to report facts correctly a news organization would contact a person whose reputation is attacked by an attorney in a public record so that such person can have an opportunity to respond before the article is run as "fact." "The response I am providing you can be found in the public records and testimony from public hearings. A. My representation of Mr. Henderson "On October 3, 2007 I was appointed to represent Mr. Henderson by 258th Judicial District Court Judge Elizabeth Coker. My first appearance in Court on Mr. Henderson's behalf was on October 3, 2007. At the time of my appointment, Mr. Burroughs was representing Mr. Henderson in his divorce proceeding in San Jacinto County, Texas. "As an attorney representing a citizen accused of a crime, it is my responsibility to investigate the facts and circumstances surrounding the criminal charges against the citizen, and to find the best possible result concerning the facts and circumstances involved in the criminal prosecution. Sometimes that involves leaving the matter up to jurors, sometimes to judges, but most of the time through plea bargain and charge bargaining agreements. "In Mr. Henderson's case, as is my normal practice, I interviewed Mr. Henderson (on several occasions), I obtained the police reports, the psychiatric evaluations, and the videos of the standoff. I did additional research concerning the charges and the issue of competency. Over the next several months I had several conversations with Mr. Henderson. I also discussed the case with the prosecutors to determine what resolution, if any, could be made of the cases. "At the time of my appointment, Mr. Henderson was charged with two felonies. Of these two charges, the more serious offense, in my opinion, was the resisting arrest charge because such charge contained an allegation of the use of a deadly weapon. When resisting arrest is committed while using a deadly weapon, the use of the deadly weapon elevates the offense to a third degree felony. When the Court makes a finding of the use of a deadly weapon, the defendant is not entitled to good time credit nor consideration for parole until that person has served at least one-half of the sentence. "Mr. Henderson's case had what is called a "charge bargaining" agreement; sometimes this is referred to as a "plea bargain." The agreement in his case was for the dismissal of the most serious offense, the resisting arrest with a deadly weapon, and a "no contest" plea to the offense charged in the indictment. It should be noted that neither in the indictment, nor in the ensuing judgment, concerning the terroristic threat, is there use of the word "deadly weapon." Indeed, the ensuing judgment specifically found no deadly weapon used in the commission of the offense. This was part of the chargebargaining agreement. Further, under Texas law a person found to have used a deadly weapon cannot be given community supervision (also known as probation) for that offense. The only way a person can get community supervision for a felony offense that involves use of a deadly weapon is if the person pleads no contest or guilty and the Judge places the person on probation without a finding of guilty. This is called "deferred adjudication." When the no contest plea was entered on January 18, 2008, Judge Coker specifically deferred a finding of guilt (i.e. she deferred adjudication). "The record reflects that Mr. Henderson, on February 27, 2008, specifically stated that he did not want probation; however, as part of the papers filed on January 18, 2010 there was an eligibility of probation statement made, so he was eligible for probation. Mr. Burroughs also requested the Court, in the new trial hearing, to grant Mr. Henderson probation. This was denied by Judge Trapp. "The "charge-bargaining" (i.e. plea bargain) agreement provided that the offense of resisting arrest with a deadly weapon would be dismissed. The agreement was placed on record, in open court, on January18, 2008. There was no finding of use of a deadly weapon on the terroristic threat charge, thus the Court could grant probation and/or if Mr. Henderson was sent to prison then he would become eligible for good time credit and/or parole without having to wait until he had served one-half of his sentence. He was also given credit for all time in jail back to August 4, 2006. Indeed, the Texas Department of Criminal Justice website shows Mr. Henderson's "parole eligibility date" as September 29, 2007, which was five (5) months before he was sentenced. Thus, at the time of his sentencing on February 27, 2008 he was already eligible for parole. "Additionally, if the trial court sentenced Mr. Henderson to prison without probation, the court could consider releasing Mr. Henderson from prison on probation after Mr. Henderson had been in prison at least 90 days, but before 180 days from the sentence. This is often called "shock probation." As things worked out, my representation of Mr. Henderson ended when Mr. Burroughs, after his representation of Mr. Henderson in his divorce ended and apparently retained by Mr. Henderson, took over his representation in the criminal prosecution and filed a Motion for New Trial on March 28, 2008. From my review of the public record, Mr. Burroughs did not file an application for shock probation. B. Competency to Stand Trial "Mr. Burroughs has alleged that Mr. Henderson was not competent to stand trial. This allegation was rejected by the Beaumont Court of Appeals, in their written opinion. "It is a requirement of the law that an accused citizen be competent to stand trial. Article 46B.003 of the Texas Code of Criminal Procedure provides '( a) A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person. (b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.' "After his arrest, and while waiting trial, Mr. Henderson had three psychiatric evaluations. These three evaluations were acknowledged by the Beaumont Court of Appeals in its October 23, 2009 opinion. However, the June 17, 2010 newspaper article, apparently relying on Mr. Burroughs' pleadings, mentions only two of these evaluations. The second evaluation, where Mr. Henderson was found competent, was not mentioned. The Beaumont Court of Appeals rejected Mr. Burroughs' argument that Mr. Henderson was incompetent to stand trial. "When I was appointed on October 3, 2007, Mr. Burroughs was representing Mr. Henderson in the contested divorce action. At no time did Mr. Burroughs contact me and advise me that he thought Mr. Henderson was not competent to stand trial. The public record will reflect in November 2007 a sworn Inventory and Appraisal where Mr. Henderson itemized all the property involved in the divorce action. The public record will also show that Mr. Burroughs allowed Mr. Henderson to testify at the divorce hearing on January 31, 2008, just a few days after the January 18, 2008 no contest plea and less than a month before the sentencing hearing on February 27, 2008. At this hearing Mr. Henderson testified for one and a half hours. His testimony involved a discussion of the criminal prosecution, his properties and what he wanted the court to award him. "In his 'Motion for Reasonable Bail Pending Appeal,' filed on March 28, 2008, Mr. Burroughs attached a proposed bond for $10,000.00, signed March 27, 2008. Mr. Burroughs signed Mr. Henderson's name to this document as "Robert E. Henderson Principal by Richard R. Burroughs, Power of Attorney." A person has to be competent, and of sound mind, to sign a power of attorney. Where is this power of attorney and when was it signed by Mr. Henderson? Mr. Burroughs did not appear in the divorce action under October 2, 2007. Did Mr. Henderson sign a power of attorney to Mr. Burroughs after October 2, 2007 and before March 27, 2008? "At no time during my representation did I feel that Mr. Henderson was not competent to stand trial. As required by the presumption contained in Article 46B.003, I believed that Mr. Henderson had both a sufficient present ability to consult with the person's lawyer (i.e. me) with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against the person. This opinion was formed after over thirty (30) years of practicing law, having worked in a psychiatric hospital, and my interviews with Mr. Henderson. This conclusion was placed on the court's record on December 12, 2007. If I had not formed this opinion of competency, then I would have required the issue be resolved by the Court, or a jury, during a competency hearing. C. The effects of the Charge- Bargaining Agreement "Mr. Burroughs attacks me for not moving to quash the Terroristic Threat indictment against Mr. Henderson. He neglects to discuss the dismissal, as part of the plea bargain agreement, of the more serious resisting arrest with a deadly weapon charge, also a third degree felony. "In response to Mr. Burroughs' allegations in the Writ of Habeas Corpus, had I filed a motion to quash the terroristic threat indictment, and the charging defect been pointed out, the State of Texas could have gone back to the grand jury and figured out what the correct charge was to make terroristic threat a felony under Section 22.07. If the State figured out how to charge a felony terroristic threat, then the end result would have been the same - a ten (10) year sentence. If the State could not have figured out how to make a felony terroristic threat, then it would not have dismissed the resisting arrest with a deadly weapon charge against Mr. Henderson, as the State was intent on convicting Mr. Henderson of a felony and putting him in prison for the maximum. If Mr. Henderson had been convicted of resisting arrest with a deadly weapon, then he would have had to serve at least five (5) years before receiving any good time credit or consideration for parole. "The remand by the Texas Court of Appeals for a new trial on punishment obtained by Mr. Burroughs raises three interesting legal questions for the State of Texas, Mr. Burroughs and the Courts: 1. Can the State of Texas refile the more serious resisting arrest with a deadly weapon charge, or will double jeopardy prevent further prosecution of this charge? 2. Can the State of Texas, now that the defect in its indictment for terroristic threat has been acknowledged, re-indict Mr. Henderson and make the allegations necessary to make the terroristic threat charge a felony? 3. Can the State of Texas review the Texas Penal Code to see what other felony charges can be filed against Mr. Henderson for his prior actions, or does double jeopardy prevent any further prosecution for anything that Mr. Henderson did before January 18, 201O? "Answers to these questions will have to be answered by the Courts in the coming months. D. Conclusion "I cannot speak to the motives of Mr. Burroughs in his personal attacks on me in the pleadings your newspaper quoted in its June 17, 2010 article. Mr. Burroughs, early on in his representation of Mr. Henderson, attempted to bring this issue to the attention of the courts but his argument was rejected for two and a half years by a variety of judges and courts until June 9, 2010. Again, my congratulations to Mr. Burroughs for his zealous representation of Mr. Henderson. "I realize that this letter is quite lengthy; however the article to which this is addressed took up a large part of the front page of the San Jacinto News-Times and continued on several pages inside the paper. Had your newspaper performed a diligent investigation, these facts, as well as others I have placed in this letter, could have been presented in your June 17,2010 article, and a "fair and balanced" treatment could have been presented to your readers for their evaluation of Mr. Burroughs' accusations that my representation of Mr. Henderson was a 'travesty of justice"'and I was nothing more than 'a 6th Amendment ornament who did not even deserve the paltry wages for the meager effort that [I] put forth in Henderson's defense.' Based on all the facts and circumstances in this case, which are of public record if one looks hard enough, I would respectfully disagree with Mr. Burroughs' allegations. "I respectfully request that you complete your investigation into the full facts in this matter, if you feel the same is news worthy, and further publish this response, in its entirety, so that your readers will, as Paul Harvey said at the conclusion of his broadcasts, know 'the rest of the story.' Respectfully submitted, Travis E. Kitchens, Jr

 

Polk County Publishing Company