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CAUSE NO. 2008-CR-1459
20!': J.. : ::; A \b i\ 2
IN THE COURT OF APPEALS/ FOURTH JUDICIAL DISTRICT,
IN BEXAR COUNTY/TEXAS
JERRY SOLIZ MARTINEZ
vs.
THE STATE OF TEXAS
A MOTION OF AN OUT-OF-TIME APPEAL OF THE ORDERS OF THE 437th DISTRICT COURT
TO THE HONORABLE)JUDGES OF THE COURT OF APPEALS:
Now comes/ Jerry Soliz Martinez/ Appellant pro se and respect
fully moves the Honorable 4th Court of Appeals to hear the following
Out-of-Time appeal/ to the orders issued by 437th District Court's
on July 2nd/ 2013. The orders in the form of conclusions of law
were issued in response to a form 11.07 Writ of Habeas Corpus
(2008 CR 1459-Wl), submitted by Appellant on October 12th, 2012,
contesting his conviction. In support of this appeal Appellant
brings forth the following grounds and would show the Court,
I.
1/ the Appellant wa3 convicted and sentanced in the 437th
District Court of Bexar County/ Texas/ of Indecency with a
Child/Contact, on the 22nd day of June/ 2011.
n.
The Trial Court' committed fundamental error when it unilaterally
added un-negotiated terms to the plea agreement. Appellant was
prejudiced by the Trial Court's order given June 22nd, 2011, vol. 2
pg. 26, (court transcripts) and attempted to correct on July 2nd,
2013. The Affirmative finding of a 3g offense, is prejudicial
towards Appellant's incarceration in the form of an un-negotiated
punishment and added collateral consequences on Appellant's
conviction and sentence." This added punishment was not negotiated
in the plea agreement coerced by attorney's for the Appellant and
prosecutor's office. Also, the enhancement was never read or
mentioned by an/one at the trial date setting of April 6th, 2011,
vol. 1 (court transcripts).
nr.
The pronouncement, of "I'm making an affirmative finding of a 3g
offense," by the Honorable Judge on,pg. 26, vol. 2, (court trans
cripts) was made without any legal reasoning or investigation into
the proof needed of the un-negotiated punishment on Appellant.
The Trial Court's attempt to correct the record is not a "clerical
error," but is a judicial error in which Trial Court must have
used legal reasoning behind such an order. The pronouncement of
this enhancement has the effect of adding stricter requirements
on Appellant's liberty, which are afforded citizens through Due
Process clause of the Fourteenth Amendment of the U.S. Constitu
tion and the Texas state Constitution Art. 1, sections 10 & 19.
Also added are the collateral consequences associated with the
Tex. C. C. Proc. Art. 42.12 3(g) and the requirements of Chapter
62/ Sex Offender Registration Program.
W.
The Trial Court failed to inform Appellant by a timely notice of
the amount of time required by T.R.A.P. 25.2 (h) "Advice of Right
to Appeal." In the conclusions of law#9, the Trial Court ruled
tnat "Appellant was not subject to an affirmative finding of a
3g offense." The admonishment is a judicially fundamental error
that did induce collateral consequences. The legal question asked
by Appellant is what "Legal reasoning" did the Trial Court have
when nothing was ever mentioned on April 6th/ 2011, (court trans
cripts) Vol. 1.
V.
Counsels were ineffective for not investigating this enhancement.
Also, if Appellant would have been advised of the time required
to file an appeal of the Trial Court's order, he would have filed
the required motions per T.R.A.P. 26.2(a), 26.3(a)(b) and,
10.5(b)(1)(2). Appellant would have used due dilegence, while
attending a six hour vocational course (Horticulture) at Diboll
Correction Center.
VE
Furthermore, this error is of fundamental standards and Appellant
would ask the Honorable 4th Court of Appeals to vacate his con
viction or return him to the original position.as he was before
the coercive signing of the plea deal, on April 6th, 2011.
YH.
Wherefore, Premises Considered, Appellant moves the Honorable
4th Court of Appeals to make specific findings as to the contro
verted issues of fact concerning the orders of the Honorable
437th District Court. Appellant prays the Honorable 4th Court of
Appeals to hear the motion of appeal and rule on its merits, and
return Appellant to his original position before April 6th, 2011,
or vacate his conviction and set aside his sentence. Appellant
prays the Honorable 4th Court of Appeals to instruct the 437th
District Court to issue orders for the release of Appellant from
cdhfinement in the Texas Department of Criminal Justice, at the
Goree Unit, 7405 Hwy. 75 South, Huncsville, Texas, 77344. App
ellant forever prays.
Respectfully submitted,
Appel'lant Pro Se
CERTIFICATE OF SERVICE
I hereby certify that on this the day of , 2014,
a true and correct-copy of the above and foregoing Motion to Appeal
was transmitted and delivered to the office of the Bexar County
District Attorney, Cadena-Reeves Criminal Juscice Center, 300
Dolorosa, San Antonio, Texas, 78205.
ORDER
On this the day of , 2014, came to be heard
Appellant's Motion to Appeal and said motion is hereby,
( ) GRANTED ( ) DENIED
Signed this the day of ,2014.
Judge Presiding
. cause \n.ioof\cRvtxq
IN THE FOURTH COURT0FAPPEALS, JUDICIAL
DISTRICT, BEXAR COUNTY, TEXAS
EY PARTE JTfRRY SOLiz. IvURTTNEZ:
vs.
THE STATE OFTEXAS
AMOTION TO SHOW CAUSE •
ftEJCOURTQFAPPEALS NO, ; 04-14-00%8-CR
TRIAL COURTCASE m;3008CRlW
TO THE HONORABLE JUDGES', FOURTHCOURToFAffEALS:
Comes n«w, Jerry SpLiz l\Ac\p+Mez, Appellant
Pro Se and respec+fully mcvts-H\e Honorable WH Court erf
Appeals 4© hear -Hie AAo-ficn-h?3hiw Cawe '6? hls*Od+-0lLjJpuns.mKt-b+h<>cf'MCe>ctrt
O-P AfpnoiU cries daAei July 18,2.0^. AppelUtyf
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I.
JURISDICTION
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