RODOLFO GARCIA 768418
3l,%s-to
LYNAUGH UNIT
1098 S.HIGHWAY 2037
FT.STOCKTON,TX 79735
COURT" OF CRIMINAL APPEALS OF TEXAS
P.O.BOX 12308,CAPITOL STATION,
AUSTIN-, TEXAS 78711 RECEIVED IN' .
COURT OF CRIMINAL APPEALS
FEB 23 2015
RE: THE STATE OF TEXAS VS.RODOLFO GARCIA CAUSE* 2154
and 2156. Abel ACCtife. Clfflk
Dear Court Of Criminal Appeals Of Texas:
In June 24th 2013 I sent two Motions to the 83rd District Clerk
to this address Gayle Henderson knxkhxsxai&i&KBSs 400 S.Nelson St.
Fort Stockton,Texas 79735.
The two motions are for Court to order District Attorney
to file Motion to reopen punishment in the above cause numbers.
To this day Feb. /% 2015 I would like confirmation when
these documents were filed with the Court and aproximate date
these documents are schedule on the Court Docket for considerati
on. Your assistance in this matter is appreciated.
Thank You.
Sincerely,
^J<®MJLp9u ManrA)
CAUSE No.2154 & 2156
THE STATE OF TEXAS IN THE 83rd DISTRICT
Vs. COURT OF
RODOLFO ALVARADO GARCIA PECOS COUNTY,TEXAS
MOTION FOR RULING ON PENDING MOTION
TO REOPEN PUNISHMENT
Comes now Rodolfo A.Garcia and moves this court to rule upon pet
itioners motion for District Attorney to reopen punishment mailed this
court in June 28,2013. In support petitioner would show the following.
The Court of Criminal Appeals has ruled in RE STATE EX REL YOUNG
236 SW.3d 207,210 (XR.App 2007)(Trial court has a ministerial duty to
rule on a properly filed motion timely presented for a ruling).See als
0 IN RE SHAW 175 SW.3rd 901,904(TX-App.Texarkana 2005)(WHEN A MOTION
is properly filed and pending before trial court,considering and ruli ,
ng on that motion is a ministerial act and mandamus may issue to comp .
el trial court to act).
Petitioner has given trial court proper notice by way of motion
to reopen punishment where this courts judgement of two 40 year fee^s
terms consecutive violate Article 1 ss 15,Tx.Const.By removal of
from a felony altogether and violates Art.26.14 VACCP'S prohibition
of sentencing in any manner than by assessment of an absolute fixed
term,or empanelinq a iurv to assess the punishment.
This court has the power and authority to correct an illega
1 sentence at any time,see MIZELL V.STATE 119 SW 3rd 804,806-807(2003
and it is mandatory the. court correct its void,it has no discretion
whether it wants to hear the issue,see METROPOLITAN TRANSIT AUTHORITY
VS. JACKSON 212 SW 3rd 797,802 (HOUSTON APP-2006).
(1)
-2-
GROUND OF ERROR No. 1
INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL IN PUNISHMENT STAGE
1. The sixth amendment of the U.S.Constitution guarentees every
accused the right of effective assistance of counsel in a criminal
proceeding against him;and the accused must demostrate counsel acts
or omission failed to meet the prevailing professional norms expected
of competent counsel, STRICKLAND -V.WASHINGTON 104 S.Ct. 2052 At
2066 (1980).He must also demostrate he was prejudiced by counsels
deficient performance,ID at 2067."Prejudiee is demostrated when
reasonable probability exists that the . outcome of proceeding may
have been different:, ID at 2068" .
2. An attorney is responsable for knowing the laws and procedures
of the State he practices in and how those laws and practices apply,
FIELDING V. STATE 719 SW 2nd 361,367 (APP.Dallas 1986); EX PARTE
WELBURN, 785 SW 2nd 391,393-394 (Crim.App.1980)(Trial Counsel must
have a firm grip on the applicable law.) When he fails to properly
prepare,argue or object co proceedings not authorized by iaw,deffenda
nt has been prejudiced by incompetency!
3. In •the instant case trial counsel failed to famalarize himself
with the laws governing plea proceedings; that failure resulted
in defendant not being told he was constitutionally prohibited from
entering into contract with the State to accept a 40 year sentence
under Art. 5 ss 10,TX.Const. And the Criminal laws of Texas.
(3)
4. Defendant was never admonished Texas Law,Art.26.14 VACCP
limited punishment to the minimum term for a first deqree felony
(5) Years and if the court refused to follow leqeslative fixed
terms,defendant had the right to withdraw his plea and proceed
to trial by jury.
5. Defense counsels ignorance the plea practice developed
in the District Courts violate defendant's right of trial by
jury under Art. 1 ss 15 Tx.Const,by unlawful removal of jury
from a felony matter,conduct an unlawful bench trial not provided
by law and was prejudiced by entering into an unlawful agreement
to surrender liberty before a judge having no authority to assess
punishment beyond the absolute fixed term established by the
legislature; thus violate Art. 1 ss 15,TX.Const, and Art. 26.14
VACCP.
6. Defense counsels blind acceptance of plea practices in
the District Court without having examined Art. 26.14 VACCP,
requiring absolute fixed terms or jury punishment has been law
since 1965,not to understand this caused defendant to waive
his liberty in violation of common law and suffer imprisonment
of 3 years beyond the 5 years prescribed by legislature.
GROUND OF ERROR No.2
PROSECUTORIAL MISCONDUCT IN THE
SENTENCING STAGE OF TRIAL
7.Prosecution, like defense counsel/is responsible for knowing
the laws and procedures of the State he practices in,FIELDING
V. STATE, supra (1986);. EX PARTE WELBURN, supra (1990).
(4)
8. Prosecution,like defense counsel,failed to understand
the constitutional provisions and statutory limitations governing
plea proceedings; that faailure caused prosecution to mis advise
the judge of proper punishment range fixed by legislature (5)yea
rs that limited judges authority to assess punishment;causing
judge to enter a void judgement of sentence beyond statutory
maximum,Art.26.14 VACCP And violate right of trial by jury under
Art.l ss 15.Tx.Const, and conduct an unlawful bench trial..
9. Had prosecution a firm grip on the common law base of
all Texas Law,defendant would not have been allowed to enter
agreement to voluntarily surrender is liberty because prosecution
like defendant,is prohibited from seeking .loss of liberty at
its discretion,punishment is beyond the scope of either party
and duly placed in the hands of a jury or fixed term by legislati
tion. ., ,
10. Prosecution's ignorance of the unlawfulness of punishment
in this matter,and refusal to activate its mandatory ministerial
duty under Art.44.02 (A)(6)VACCP to reopen punishment when made
aware such was illegal shows bad faith sufficient to deprive
defendant of due process of law by refusing to render corrective
process available under law to leave defendant in an unconstituti
onal imprisonment beyond punishment established by the
legislature of Texas.
* GROUND OF ERROR- No . 3
VOID JUDGEMENT AND ILLEGAL PUNISHMENT
11. Defendant motioned this court for issuance of an order
that prosecution file for reopening of the punishment to correct
an otherwise void punishment beyond statutory maximums for plea
proceedings; in this the court has not address the motion for
ordered prosecution to commence correction authorized under
-5-
Art. 44:02 (A)(6) VACCP., to leave defendant under a void iudqeme
nt as discussed in the motion to 'reqpen, as such', this court has
shown little regard for its oath of office and less for the
rights of the citizen ...under State or U.S. Constitutional law
of due process, .or due course of law. ... . ,., -. ;.. . ,,j;/t
12. Because.none appear aware Texas Law does not allow removal
of jury from', a felony case with the exception when punishment
is absolutely fixed by the 'legislature,defendant submits the
current practice allowing full bench trial on a plea is based
on an erroneous presumtion a. 1966 change in Article^.07 ss2 ^;
VACCP. Allowing.' jury to find guilt and judge to assess punishment
has" been misconstrued' deliberately to subvert the mandatory
minimum sentence authorized in Art.26.14~VACCP without concern
trial judge usurps jury authority in, ,violaton of Art.l ss 15.TX,
Const.(Jusy- to. remain inviolate in a felony matter). Void punishm
ent" is a'.'* structural .error raisable at any .time, MATH V. STATE
817 SW 2nd, 335, 3.36 (1991) Cf.EX PARTE BECK 922 SW 2nd 18\,182_ ;
(Tc. Crim.App.199.6) And. the court of .Criminal Appeals
has. ruled ^Habeas relief .will issue; to .person in custody of a
void sentence because, punishment •as unauthorized,see EX PARTE
Mciver: 586 SW 2nd 851,854 (1979).
13 Defendant is entitled to Habeas Corps relief and dischar
ge for time, served because failure of defense counsel,prosecution
and trial .judge to .conduct itself within the confines of the
law have prejudiced defendant where he has lost witnesses,evid
ence and confidence his rights will be adheared to where custom
and practice superceeds legal knowledge what is allowable under
common law.
For the -reasons stated above,habeas corpus shoullbe granted
and defendant be ordered release from further restraint for time
served.
Respectfully Submit
ted,
RODOLFO Garcia 768418
Lynaugh Unit 1098 S.
Highway 2037
FT.STOCKTON,TX 79735_
UNSWORN DECLARATION
I,Rodolfo A.Garcia,being incarcerated in the Texas Departme
nt of Criminal Justice Lynaugh Unit on Pecos County Texas.,Hereby
swear the. facts and statements in this document are true:and
correct. Sworn to under penalty of perjury,this day of
•fcL />? 2015.
CERTIFICATE OF SERVICE
I certify I have placed a document entitled brief in suppor
t of Habeas Corpus in the United States Mail,postage pre-paid and
addressed to Gayle Henderson/District clerk,83rd District Court,
400 S.Nelson,Fort Stockton,Texas 79735 on this date the /g
DAY OF -/~g.jb« / f? 2015 Sworn to under penalty of perjury.
^J