Kanybitabo, Mathieu

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-93,371-01 & WR-93,371-02

Ex Parte MATHIEU KANYABITABO AKA MATHIEU KANYBITABO, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 13819-D & 14123-D IN THE 350TH DISTRICT COURT
FROM TAYLOR COUNTY

KELLER , P.J., filed a dissenting opinion in which YEARY and SLAUGHTER , J., joined.

DISSENTING OPINION

The Court grants Applicant a new punishment hearing on both of his convictions. I dissent

for two reasons.

First, after a live hearing, the habeas court made express, nuanced findings of fact regarding

the credibility of the witnesses and their testimony, and the court recommended denying relief. The

credibility findings support the court’s recommendation. For reasons unstated, this Court declines

to defer to those findings and grants Applicant a new punishment hearing. I would defer to the

habeas court’s credibility findings.

Second, on an ineffective-assistance claim, it is an applicant’s burden to show that there is
KANYABITATO DISSENT — 2

a reasonable probability that, but for counsel’s errors, the sentencing judge would have reached a

more favorable penalty phase verdict.1 The habeas judge in this case was also the sentencing

judge—the same judge who heard the evidence, assessed Appellant’s punishment the first time

around, and now recommends denying relief. The judge has already considered the new mitigating

evidence, and he believes it, but he still recommends denying relief. This means that, looking

backwards, he has concluded that he would not have assessed a shorter sentence had he known about

the new mitigating evidence. Applicant has therefore not shown a reasonable probability that the

new evidence would have resulted in a more favorable penalty phase verdict.2 I respectfully dissent.

Filed: March 29, 2023
Do not publish

1
Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012).
2
Applicant was convicted of assault and theft. In the assault case, he shot a gun into a car
full of people (hitting one in the head) because someone had mocked a friend’s death and someone
had threatened another friend. In the theft case, while he was in eleventh grade, Applicant stole three
gold chains and a gold cross worth over $2,500 from a jewelry store. His punishment was assessed
at thirteen years for the assault and sixteen months for the theft.