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Jeremy Crespin
TDCJ No. 1807429
Hughes Unit
Rt. 2, Box 4400
Gatesville, TX 76597
Clerk
Court of Criminal Appeals of Texas
P.O. Box 12308
Austin, TX 78711
February 28, 2015
RE: WR-82,141-04 and W^-82,141-03
Dear Clerk:
PLEASE FILE THE ENCLOSED MOTION IN BOTH OF THE ABOVE REFERENECED
CASES (WR-82,141-04 and WR-82,141-03).
'• 1
Please find enclosed one original of "Applicant's PRO SE
Motion for Leave to Suggest Court to Reconsider, On Its Own Initiative,
the Denial of Relief in These Writ Application."
Please FILE it in both cases and present it to the Court for
action.
Thank YOU for your time and assistance in this mater
Respectfully,
x
Jerer^ C
Crespin
resDinJ'
Applicant PRO SE
JC/swd
cc: FILE
DA
CCA WRIT NO(S). WR-82,141-03 AND WR-82,141-04
§ IN THE COURT OF CRIMINAL
EX PARTE §
§ APPEALS OF TEXAS
JEREMY CRESPIN §
§ AT AUSTIN, TEXAS
APPLICANT'S PRO SE MOTION FOR LEAVE TO SUGGEST COURT TO RECONSIDER,
PWl OWN INITIATIVE, THE DENIAL OF RELIEF IN. THESE WRIT APPLICATIONS
TO THE HONORABLE JUDGES OF THIS COURT:
Applicant, Jeremy Crespin, first received.a copy of the convicting
court's Findings of Fact and Conclusions of Law ("Findings")
on Monday, February23, 2015. This Court denied felief in these
writ applications on Wendsday, February 25, 2015. Those 2 days
were not sufficient, time for Applicant to file OBJECTIONS to
the convicting Court's Findings.
Priorly, in a "motion to stay", Applicant had asked this
Court to require the convicting court clerk to provide Applicant
with a copy of the Findings. It appears that, rather than resolve
that concern in the open, this Court utilized back channel (and
ex parte) communications with the convicting court officals and
"dismissed" the motion to stay. The result being, that while
Applicant (thankfully) received a copy of the Findings, as a
pratical matter Applicant was not given 10 days to file OBJECTIONS
to those findings (as was requested in the motion to stay). See,
Tex. R. App. Proc, 73.4(b)(2).
Thus, Applicant request leave to suggest that this Court
RECONSIDER, on its own initiative, the denial of relief in these
article 11.07 writ cases. See, Tex. R. App. Proc.,79.2(d).
And, that upon reconsideration, or rehearing, that this Court
consider Applicant's OBJECTIONS to the convicting court's Findings.
Primarly, this Court had previously determined that Applicant
had alleged facts -that, if true, might entitle him to relief and
that additonal facts were needed. See, CCA Order in Writ No.
wr-82,141-03 (12/17/2014). Yet., the only additonal facts gathered
was trial counsel's "answer" which contains no facts relative
to the grounds raised in the writ applications.- Thus, the Convicting
court's Findings are not supported by the writ record before
this Court. See. JEx parte Evans, 964 S.W.2d 643, 648 (Tex.Crim.
App.l998)("Although the findings indicate that documents ...
corrob.ra.te-Appl-icant'.s allegations.,...our recorjLdoes not include
any such documents. The record is devoid of anp evidence..."
to support the trial court's findings.) Worse still, the convicting
court puportsto make a credibility determination:about trial
counsel; however, even if the convicting court were, privy to !
confidential attorney-client communications between trial counsel
and other defendants, the advice given to other defendants does
1
not.support Findings on what advice counsel gave to Applicant.
See, Pension v. Ohio, 488 U.S. 75,.. n. "(1988)(very real
concern that counsel can just be lazy in one case is one reason
an Anders.brief is necessary). Applicant's OBJECTIONS to the
convicin^ court's Findings^follow: .
1) Irrespective of what happen in the juvenile court,
the convicing court did not have jurisdiction to enter
the Judgment of convictin in writ No. WR-82,141-03
because Section 8.07 of the Penal Code prevents prosecution
and conviction of.any one under the age of 15 for a
second degree -4^oJ^W1 and on the date of this offense, .
as recorded in the Judgment, Applicant was under the
age of 15. See, Ex parte Waggoner, 61 S.W.3d. 429,
431 (Tex.Crim.App.2001)
2) An 11.07 writ application seeks relief from a
final felony Judgment and, therefore, it is the date
of the offense recorded in the Judgment that matters;
which, requires that the law in effect on the date
of the offense, as recorded in the Judgment, to be
applied (and in 1994 Applicant did not have to object,
prior to trial, to problems with age restrictions). See,
Waggoner, 61 S.W.3d at 431 n.2.
3) The express findings set out.on the face of the
juvenile court Order limited the transfer to conduct
that happen when Applicant was 16 years old; therefore,
inspite of any "on or about" language the juvenile
court never waived its exclusive jurisdiction over
conduct that happen on the date of the offenses, as
recorded in the Judgment, and the convicting court
did not have any jurisdiction to enter the Judgments
of conviction in Writ No(s). WR-82,141-03 and WR-82,14104.
See, Moon v. State, No. PD-1215-13 (Tex.Crim.App. -
December 10, 2014)(PUBLISHED)(insufficiency of the
evidence to be measured by the express.findings set'
out on the face of the juvenile court Order); Taylor v.
State, 332 S.W.3d 483, .491-492 (Tex.Grim.App.2011)
(language in jury instruction could limit.the "on or
about" dates the jury could consider to dates when
the defendant was over 18 years old.) .
4) Applicant wasvNOT required to cite law in the writ
application, rather law must be cited in the memorandum
of law, and in his memorandum of law Applicant did
cite to Richardson.v. State, 770 S.W.2d 797, 799 (Tex.
Crim.App.1989) which relies upon Section 54.02(g) of
the Family Code to prohibit the separate prosecution,
or rather the retroactive separation of a companion
case out of the underlying juvenile court order. See,
"Instruction" for 11.07 writ application form (rev. 01/14/2014)
5) The statue, Penal Code 3.01, itself threatened •
stacked sentences of these two separatly indicted cases
and, regaurdless of any other promises, by pleading
guilty in exchange for, 5 years deferred adjudication
probation, Applicant avoided.the threatened result.
6) There is a fourth category, that creates ex post
facto laws, mainly laws that "permit conviction on
quantum of evidence, where that quantum, at the time
the new law was enacted, would have been legally insufficient"
^and under the statue of limitations in effect on the
date of these offense^ at the time of trial there would
-have-been -i-n-s-ltf-f-i-c-i-en-t evidenee—t-o- sustain- the-Gonvic-tions
-SeeVXarmeTI v". Texas; t20^STCr:-l&20, 1&40(2000) ;- - "-
Phillips v. State, 362 S.W.3d 606, 610 (Tex.Crim.App.2011).
(acknowledging fourth category); See, also, ie., Lemell v.
State, 915 S.W.2d 486, "488 (Tex .Crim. App .1995) (failure
to prove statue of limitaions dates results in reversial
for insufficient evidence).
1. Moreover, while the convicting court is allowed to use personal, recollection
to resolve disputed facts (under Article 11.07 § 3(d)) ~ that provision refers
to personal recollection about the case at hand NOT any general knowledge the
Judge might have, especially when there is nothing in the writ record before
this Court to support those findings. See, Evans,. 964 S.W.2d at 648.
7) Trial counsel's "answer" contains no facts relative
to the grounds raised in the writ application and,
thus, the convicting court's Findings concerning ineffecitve
assistance of counsel are not supportted by the record
before this Court. See, Evans, 964 S.W.2d at 648;
See also, Perillo v. Johnson, 79 F.3d 441, 445, 451
(5th Cir 1996)(additional discovery and evidentiary
hearing were required, in part,, when counsel's affidavit
did not squarely address the relevant issues).
8) The convicing court made imporoper jumps in logic
in its Findings, to include:
a) Trail counsel's conduct in other cases
proves what knowledge of the law counsel
- -has -gene-rally, what-investigation-counsel
~di~d "±n~~t'he's"e case~s7"~and-what— advice counsel
gave to Applicant.
b) The fact that trial counsel discussed
some unspecified strategies with Applicant
proved that counsel actually discussed matters
of law that Applicant complains counsel did
not in the writ applications.
c) The fact that trial counsel was ready
to proceed to trial proves that counsel correctly
advised Applicant about the guilty plea.
d) The fact that Applicant choose to plea
guilty proves that trial counsel either did
not have to provide adequate advice about
the guilty plea or that counsel did provide
correct advice.
e) That just because Applicant was prescribed
anti-psychotic medications that it proves
trial counsel was aware of that fact^ and
that counsel inveestigated that fact»5> impact
upon Applicant's competency.
9) The convicting court never resolved numerous controverted
previously unresolved facts, to include:'
a) Was the complainant present and available
to testify on June 15, 2010? See, Applicant's
Exhibit "A" (Affidaivt of Debra Crespin).
b) Did trial counsel tell Applicant whether
the complainant was or was not available
to testify on June 15, 2010?
c) Did trial counsel advise Applicant that
the State could obtain a conviction without
the testimony of the complainant?*
d) Did trial counsel advise Applicant that
the State could use the "out-cry" statement
against Applicaat(to obtain a conviction)?
e) Did trial counsel advise Applicant that
the State could use the recorded phone call
between Applicant and the complaintant to
either help convict him or at the sentencing
hearing to obtain a harsher sentence?
f) Regardless of what the plea papers state,
did trial counsel advise Applicant that the
defferred adjudication probation had severe
disadvantages that the 5 years in prison
plea bargain did not have?
g) Did trial counsel investigate at all
the problem with,the dates between the juvenile
court Order and the indictments and did counsel
advise Applicant that if the State only proved
at trial the 1994 dates and the defense made
the State "elect" which dates it was seeking
a conviction for -- that there was a chance
to prevent the convietion(s), or at least
to prevent a stacked sentence.
h) Was trial counsel aware that Applicant
had mental helth problems and was taking
prescribed anti-psychotic medication AND
did trial counsel perform any investigation
into Applicant's competency?
10) The police believed that Applicant's demeanour
during the recorded phone call between Applicant and
the complainant was incriminating and the recording
could have been used at sentencing; therefore, the
recording should have been supressed when Applicant
had invoked his right to counsel and, thereafter,
never waived his right to counsel. See, Rhode Island v.
Innis, 100 S.Ct. 1682, 1689 (1980)(anytype of incrimination
is suffienct. to require suppression).
11) No where does Applicant claim that the registration
requirment was an ex post facto violation; rather,
at all times, becuase Applicant was under the age of
17 on the date of the offenses., Applicant was only
required by law to register once a year --•• never every
90 days -- and the appeal was affirmed soley upon the
failure to register.every 90 days (the amendment of
the statute of limitaions was a separate error of counsel)
AND, insufficient, or no evidence, claims may be raised
for the first time on appeal. See, Tex.Code. Crim.
Pore, art. 62.001(6) and 62.058.
12) Yet, the convictingf;:court failed to aquire a response
from revocation counsel or revocation appellate counsel.
Thus, not.only are the convicting court's Findings not supported
by the record, they continually misconstrue Applicant's grounds
forvrelief.and: the applicable law.. This Court should not have
denied relief based upon the Convicting court's Findings. Indeed,
it would be a denial of DUE PROCESS to deny relief based upon
such poor Findings. See ie., Townsend v. Sain, 83 S.Ct. 745
(1963) (state habeas court must provide full and fair opportunity
to develope facts and have the factual basis of calims considered),
overruled in part on other grounds, Keeney v. Tamayo-Reyes, 112 S.Ct.
1715 (1992)(n.5 still requires full factual develope in state court
proceedings), Ex parte Young, 418 S.W.2d 824 (Tex.Grim.App.1967)
(same); See also, (Michael) Williams v. Taylor, 120 S.Ct. 1479 (2000).
DISCUSSION OF ONLY TWO OBJECTIONS
Rather than represent arguements on each and every one of
Applicant's OBJECTIONS, Applicant will focus on the convicting
court's lack of jurisdiction to enter the Judgments and that
the writ record before this Court does not support the convicting
court's Findings. (Applicant has filed numerous pleadings addressing
the content of the OBJECTION^ to include, a REPLY to the State's
Response, A REPLY to this Court's Order of 12/17/2014, a Motion
to STRIKE Trial Counsel's Response, and, of course, the original
memorandum of law.)
JURISDICTION TO ENTER JUDGMENTS
The convicting court's Findings appear to conclude that
because the "proper" date for the offenses are in September 1996,
when Applicant was 16 years old, that these is nothing wrong
with these convictions. It is correct that it will be important
to focus on the conduct when Applicant was 16 years old. However,
the Findings (or conlcusions) overlook that it is the date in
the Judgment(s) that will determine if these convictions are
improper. Especially, when the only evidence to support the
Judgments are the judical confessions that admit to offenses
in Septmber 1994 (over which the convicting court had no jurisdiction)
Applicant is entitled to RELIEF.
Date In Judgments Matter
An 11.07 writ application seeks relief from a final felony
judgment. See, Tex. Code Crim. Proc, art. 11.07 § 1... The Judgments
in these cases record the dates of the offenses, as .required
by law, as September 1994. See, Tex. Code Grim. Proc, art.
42.01 §1(14). The only eviednce introduced' at trial were the
judical confessions, and they admit to the offenses happening
in September 1994- -Thus, the -dates_t.ha.t- mater in .these .cases. _.. .
~2 " "~"
are the dates in the Judgment. At this point, the dates in the
juvenile court order and the indictment, are immaterial.
Date in Judgments = Applicable Law
The law is already establishes by this Court that for offense^
that happen in 1994, there is no requirment to object to a district
court's lack of jurisdiction based upon age-related reasons.
See, Waggoner, 61 S.W.3d 431 n. 2. Thus, this Court, and the