y -O| OZ)Oz/M/ February 25 , 2015 Court Of Criminal Appeals RECE|VED 'N Clerk, 'Abel l\cost;€i_"'."?»v COURT oF CR,M'NAL APPEALS P.o. Box~12308,. capital Statié§n , Austin, Texas 78711 MAR 03 2015 RE= Ex parte Matthew' cotten Abe' Acosta~lclefk Writ NOS. C-432-010371-1222336-A; C-432-010372-1227019-A; C-4'32-‘--l-373-1227020-A; C-432-010374-1227021-A; C-432-010375-1227111-A. Dea]'.' Clerk, Enclosed you will find "Applicant's Traverse__To the '_I‘rial Court's Findings` of FAct and Conclusion of Law" in the above stiled and numbered causes. Please file- Stamp said instrument and bring it to the attention of the court in your usual fashion. Thank you for your time and cooperation. Respectfully Submitted: Matt:hew Cotten No. 1826716 Coffield Unit 2661 F.M. 2054 Tennessee Colony, Te.xas 75884 CC: Steven W. Conder Assistant DiStr'ict Attorney 401 W. Belknap Fort Worth, Texas .76196-0201 writ Nc». c-`432-\010371_)1222_3316;+A Ex Parte In The 432nd Judicial District Court Matthew Cotten mmw}mw} Tarrant County, Texas Applicant's Traverse To The Trial Court's Findings Of Facts And Conclusion Of law Tb The Honorable Court Of Criminal Appeals: Now'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the Court Of Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus. And in support thereof will show this court the following: .Grounds For Relief On January 4, 2015, Applicant filed this foregoing writ of habeas corpus alleging five constitutional violations during the course of his trial court proceeding. In ground nuber one, Applicant contends that his sentence of thirty years in Cause No.1222336b3, is illegal because the "Judgment of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive§ In ground number two, Applicant contends that his sentence of ghirtyiyears in Cause No. 1222336D , is void because the State presented "No Evidence" to support the enhancement paragraphs alleged in the indictment, as' required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Con- stitution. In ground number_three, Applicant contends that he _was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegatiOnS as required by Section 12.42(d), Texas Penal Code; thereby making his thirty year sentence void. In ground number four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he 'failed to read the full "Miranda warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating statement against§zhimself. Argument And Authorities Ground Number One In ground number one, Applicant argued that his=§entence of thirty years in Cause No. 1222336D is illegal because the""Judgment Of Conviction By Court" and the "Record At Trial"-shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. State's Reply To Petition For writ Of Habeas Corpus In addressing ground number one, the district attorney argued that relief should be denied simply because ¥TFthe indictment alleged two prior felony convictions: a 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant!s constitutional questions of law and fact regarding the applicant's clainlthat the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and R.R. Vol#2, pp. 109 through pp. 114). _Applicant maintains that because the "Judgment of Conviction and the Reporter's v Record" at trial shows-ty@t applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#2,pp.109 through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1). Habeas Court Memorandum/ Findings On February 2, 2015,-the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any 4 decussio --"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See; Memorandum / Findings, pp.l). Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation to ground number one based upon the fact that the trial court's findings is contradicted bY, the lrecord of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See; Judg- ment of Conviction By Court and (R.R. Vol#Z,pp.lOQ through pp.114). A review of the "Judgment of Conviction By Court" at trial clearly shows that applicantplead "True" to only- one enhancement paragraph and the trial court found only one enhancement paragraph true. (See; Judgment of ConvictionBy Court-Waiver of JUry Trial"). Likewi$e, a reviewdgfthe punishment hearing shows that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's sentence;qf thirty years void. Mbreover, the record shows that the district attorney only asked the trial court to take iudical notice of the presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to support the enhancement aiiegation, the trial court illegally concluded: !Based upon the foregoing evidence and the information that's been provided to 3 11 "'C a n 11 t ' : ¢ .» ' ,' ". ‘ j,`. ' '. _ ~ : ". .». 4 _ . ' 1 \:‘ ,, , . . r , ' .._. 5 `, . . . , _., g __g .. . _ v 4. u ‘- 1 -. .:' ', ,~ ..¢ » q . j \/_.:. `l l H ..-.,, ~ g ,_ ' '- 1 »l ‘ \ ' ` ' ' d 1 1 1 \ " v s l ‘... ..- .._ `_,__/ . \ _ ‘ 14 the»court and your admission, the court hereby finds you guilty of all five caus§ ' numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the State of Texas versus Matthew C. Cotten. The respective enhancements are also found to be true. In the cause numbers, with the exception of 1227111, the Court hereby sentences you to 30 years in the Institutional Division of the Texas Department of Crimina1 Justice. In Cause No. 1227111, theCourt hereby sentences you to 20 years ~ in the Institutional Division of the Texas Department of Criminal Justice." (R,R. Vol#3,pp.86,line 18 through: pp.87,1ine1-7). § l Section 12;42(d); Texas Penal Code governs the punishment for habitual felony' offenders, and requires the State to present evidence of two prior felony offenses ' inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S.W.3d'508, 511(Tex. Crim. App.2006). IN explaining how Section 12.42(d) operates, the Court of Criminal Appeals have consistantly held »that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the punish- ment`can not be legally 'enhanced. Cole V. State, 611 S.W.2d 79, 80(Tex. Crim. App. 1981); Mizell V. State, 119 S.W.3d at 806(Tex. App. 2006); Jordan V. State, 256 s.w,3d 290, 293§Tex.crim. App. 2008). ` Here, in applicant's case now before the Court of Criminal Appeals the record shows that at the;mnu§mad: hearing the State only asked the court to take judicial notice of the presentence investigation report which did not contain§’ any evidence of any prior felony convictions. (R.R.-, Vol#3,pp.7, line 6 through pp.8, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two and Three In ground number two, applicant argued that his sentence of thirty years is Void because the State presented "no evidence to support the enhancement allegations required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. qy- In ground number three, Applicant argues that he was denied dueg¥process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42 (d), Texas Penal Code; thereby making his thirty year sentence void. State's Reply To Petition For Writ Of Habeas Corpus ln addressing grounds two and three, the district attorney argued that relief should be denied because: VThe record herein is not totally devoid of evidentiary support for enhancing the applicant's sentencing range." (See; Statevs Reply,pp,§), Mbre specifically, the district attorney argues that there is some evidence to support the enhancement allegations based upon (l) "The applicant entered a judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The applicant waived his right to themapbéaran§§;confrontation and cross-examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding applicant's claim that the State presented "no evidence" to support. the essential elements of the enhancement paragraph as required by Section 12.42(d), Texas,Penal Code; Article 1.15, Texas Code of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United'States Consti- tution. (State's Reply, pp.5-6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) armdicant's waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is because the courts Bave long held that in all criminal prosectutions regardless of the plea or whether the punishment is assessed by the iudqe or the iury, in no event shall a person charged with a criminalféoffense be convicted upon his plea without sufficient\evidence to support the same. Artitke 1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex. Crim. App. 1996); Messer V. State, 729 S.W.2d 694,698(TeX.Crim.App.1986); Stokes V. Procunier, 744 F.2d at 483; Thompson V. louisville, 362 U.S. 199, 80 S.CT. 624(1978). Furthermore, proof of prior convictions contained within the presentence inves-~ tigation report is inadmissible as proof of a final ¢onviction where the P.S.I. report . did not con$ain certified copies of prior iudgment of Hconvictions against the appli- cant. Gar¢ia V. State, 930 S§.W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for a stipulation to be considered as evidence where the plea is before the.court, the state must introduce a copy of the iudqment and sentence in each case for enhancement purpose. See: Messer, 729 S.W.2d at 698; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at 368,~ m parte Rich, 194 s.w.zd at 513. Here, in applicant's case nodibefore the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a iudicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- ` examination of witnesses, and consented to oral and written stipulations of evidence. (See§ State's Reply, pp.5). In conclusion, the record clearly shows that the State denied applicant due process aid due cou§se of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12.42(d), Texas.Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth Amendment of the United States Constitution. Consequently, no rational trier of fact could have found the essential elements of the enhance- ment allegations true beyond a reasonable doubt. Habeas Court Memorandum / Findings In addressing ground number two and three, the trial court erred in stating : "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. The Court recommends that grounds for relief be denied. (See: Memorandum / Findinqs, pp. 1). Applicant's Traverse To The Trial Court's Findinqs Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground two and three be denied based upon the trial court's finding that--"applicant's iudicial confession (standing alone) provides some .evidence supporting the enhancement of his sentencing range to habitual offender status." Applicant maintains that his iudicial confession standing alone is not enough to support proof of a final \kpnviction, where the P.S.I. report did not contain certified copies of prior iudgment of convictions against him. See: Garcia V. State, 930 S.W.2d 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte Rich, 194 S.W.3d at 513.‘, *The Texas Court of Criminal Appeals have long held that in all criminal prosecu- tions regardless of the plea or whether the punishment is assessed by the judge or the iury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of Criminal Procedure; Stone V. State, 919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer V. State, 729 S.W.2d 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior convictions contained within the presentence investigation report is inadmissible as proof of a final conviction, where the P.S.I. report did not contain certified copies of prior iudgments of convictions against the applicant. Garcia, 930 S.W.2d at 623. In summary, the State must introduce a copy of each iudqment of conviction, in each case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell V. State, 228 S.W.3d 343 at 346; EX parte Rich, 194 S.W.3d at 513. Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take iudicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R. Vol#2,pp.114,'line 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there wede "no evidence" of prior convictions contained within the P.S.I. report. §Thus, basedv upon the record,l no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the recommendation of the trial court vmust be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearinq. Ground Number Four And Five In ground number four and five, Appligant argued that Detective~Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State Constitution when he failed to read the full "Miranda Warning" to him as required by Article 38.22 § 3(a)(2), Texas Code of Criminal Proceedure. In ground number five, Applicant argued that Detective Anderson violated his-due process right under the fifth and fourteenth amendment of the United States Constitu- tion when he threatend§ physical harm to him and his property in order to coerce him to give a self-jncriminating statement against himself. State's Reply To Petition For Writ of Habeas Corpus In addressing ground number four and five, the district attorney argued that relief should be denied because: "The applicant's Miranda and due process grounds for relief are not cognizable _because these same complaints were reiected on direct appeal." (See; State's Reply, pp.6). However, the district attorney has failed to address applicant's constitutional questions of law and fact regarding additional evidence that is being presentédzgfor the first time in this foregoing habeas corpus petition that was not presented on direct appeal. This evidence creates an exception to the general rule that claims raised and reiected on direct appeal aare not cognizable on habeas corpus. Ex parte Schuessler, 846 S.W.2d at 852(TEx. Crim. App.1992); Ex parte Goodman, 816 S.W.2d 383, 385(Tex. Crim, App. 1991); Ex parte Russell, 738 S.W.2d 644, 646(Tex. Crim.App. 1986). Habeas Court Memorandum / Findings In addressing ground number four and five, the trial court erred in stating: "The Court finds that the applicant's miranda and due process grounds for relief are not itognizable because they were litigated on direct appeal." (See; Memorandum/Finding, pp. 1\. Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trialn~court's recommendation that ground four and five be denied based upon the trial court's finding that: l v ' "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claims now before the court are fundamental constitutional claims that are based upon new theories that were not presented on direct appeal. Ex parte Good- ma`n, 816 S§»w._;">,zd 383, 385(Tex. 'crim. App. 1991); Ex parte Russell, 738 s.w.zd 644(Tex. Crim. App.1986); Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law is clear, although habeas corpus is traditionally }:unavailable to review matters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte Schussier, 846 S. W.2d at 852 (Tex Crim. App. 1992)(granting re1ief due to lack of iurisdiction); Ex parte Russell, 738 8. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void prior conviction); Ex parte Bravo, 702 S.W.2d 189(Tex Crim.App. 1982)(qranting relief do to the improper excusal of a veniremamber): Ex parte Clark) 597 S.W.2d 760(Tex. lCrim.-App.1979)(granting relief due to the trial.;court1s failure to apply the law to the facts of the case). Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial @court-erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated his Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warning" to him as required by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of Iaw, pp.14). After comparing applicant's ground number four in his habeas corpus petition to 'applicant's claim number ione on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently, the trial court's finding that --"applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded back to the trial court for a new trial. n Likewise, a review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review of applicant's fifth ground for review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process right under the Fifth and Fourteenth Amandment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incriminating statement against himself. (See: Applicant's Memorandum of law, Dp.17). In summary, after comparing applicant's ground number five in his habeas corpus petition to applicant's claim number two on his direct appeal, it becomes clear that the claims are not the same because applicant is now presenting a constitutional issue 1of¢'fundamental error based upon a theory not alleged on directrappeal. Consefuently, the trial court's finding that --"applicant's Miranda and due process grounds for re- lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one,.two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- cant So Mbves The Court.. Respectfully Submitted: W/Mg/@MV Matthew Cotten No. 1826716 coffield unit ` 2661 F.M. 2054 Tennessee Colony, Texas 75884 10 Oertificate Of Service - I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct Copy of this foregoing instrument has been served upon S'teven W. Conder, Assistant District Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th day of February, 2015. Siqm WM &12&~ Matthew Cotten No. 1826716 Applicant, Pro sey,_;.§:,§}§ 11 WIit NO. C-432-010372-1227019-A m Parte , In The 432nd Judicial District Court warrant county, `Tezes em_ooooo¢mcoo Matthew Cotten Applicant's Traverse To The Trial Court's Findings Of Facts And Conclusion Of law To The Honorable Court Of Criminal Appeals: -Now'Ccmes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the Court Of Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus. And in support-thereof will show this court the following: Grounds For Relief "Le@;fOn*January”4;;2015;`Applicant'filed?this`foregoin© writ of hah`ea`"s"'~~"c:`oi‘»"p`usi`»~-'`~>-`1#-1~"~~`--~-~-l-`~~~~f‘7 In ground nuber one, Applicant contends that his sentence ofthirty years in Cause No-1227019D _, is illegal because the "Judgment of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive. In ground number two, Applicant contends that his sentence of thirty years in Cause No.1227019D , is void because the State presented "No Evidence" to support_the n enhancement paragraphs alleged in the indictment, as required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Con- stitution. In ground number three, Applicant contends that he _was denied due process and due course of 1aw when the State presented "no evidence" to support the enhancement, nallegations as required by Section 12. 42(d), Texas Penal Code; thereby making his thirty year sentence void. In ground number four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. ` l In ground number five, Applicant~contendsmthatvhetective“£nderson,vdrnrnnai:nis __________ "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating statement against' himself. Argument And Authorities Ground Number One, In ground number one, Applicant argued that his sentence of thirty years in Cause No. 1227019D is illegal because the""Judgment Of Conviction By Court" and the "Record At Trial“ shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. State's Reply To Petition For writ Of Habeas.Corpus ln addressing ground number one, the district attorney _argued that relief should *t~v“'“be~denied“simply because'=“”the indictment alleged two prior'felony convict16ns: 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be true. _Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, -his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's clain1 that the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and R. R. Vol#Z, pp. 109 through pp. 114). § _Applicant maintains that because the "Judgment of Conviction and the Reporter's Record" at trial shows that applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#Z; p.109 through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under 28 U. S. C. §2254(e)(1). Habeas Court Memorandum/ Findings On February 2; 2015, the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any decussion--"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See: Memorandum / Findings, pp~l)~ Applicant's`iTraverse To The Trial Court's Findings _ Applicant now contends that the Court of Criminal Appeals should not adopt the r_ trial court' s recommendation to ground number one based upon the fact that the trial court's t findings is contradicted by the record of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of Conviction By Court and (R.R. Vol#Z,pp;lOQ through pp.ll4). A review of the "Judgment of Conviction By Court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). likewise, a review'gfthe punishment hearing shows that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's sentence of thirty years void. Moreover, the record shows that' the district attorney only asked the trial court to take judical notice of the presentence investigation report and then rested{ (R.R. Vol#3,pp.7, line 6 through pp.S, line 1~15). Nevertheless, without any evidence beingpresented at trial to support the enhancement allegation, the trial court illegally concluded: PBased upon the foregoing evidence and the information that's been provided tol __..,.`.:,.e»: ..:~:»“?=EFNE"¢.M ~¢.~ .. w'~" -a L ,1 f ? .. the cou§t and your admission, the court hereby finds you guilty of all five cause numbers in 1222336, 1227019, 1227020, 1227021, 1227111, ali respectively styled the State of Texas versus Matthew C. Cotten. The respective enhancements are also found to be true. In the cause numbers, with the exception of 1227111, the Court hereby sentences you to 30 years in the Institutional Division of the Texas Department of §=§“z==€f1mTHBL~GHSETEG==EH-€HHSE~N “”TQQVITTz°the€OurE*“H"§:'" "“ " ` “°2“_' "shows that at‘thel§f;.` 'in the Institutional Division of the Texas Department of Criminal Justice." (R. R. Vol#3/Pp- 86, line 18 through pp.87,line1-7). Section 12:42(d); Texas Penal Code governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S W.3d 508, 511(Tex. Crim. App.2006). IN explaining how Section 12. 42(d) operates, the Court of Criminal Appeals have consistantly held vthat.the State must present evidence which supports the enhancement allegations contained in the indictment. This_is because, if the proof at trial fails to correspond with the enhancement allegations, the punishs ment can not be legally enhanced. Cole V. State, 611 S W. 2d 79, 80(Tex. Crim. App. 1981); Mizell V. State, 119 S. W.3d at 806(Tex. App. 2006); Jordan V. State, 256~ .~S. W. 3d 290, 293(Tex Crim. App. 2008) "-~~W~Herepein applicantls~case now:before the Court of~CriminalwAppeals~the-record~-~~~e~e~ .,. ~s.`,,,v.._.`__e "_: hearing the State only asked _the court to _také Judicial notice of the presentence investigation report which did not containr any evidence of any prior felony convictions. (R.R. Vol#3,pp-7, line 6 through pp.8, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant' s sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two and Three 4 _ In ground number two} applicant argued that his sentence of thirty years is void because the State presented "no evidence to support the enhancement allegations required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. t In ground number three, Applicant argues that he was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42_(d), Texas Penal Code; thereby\making his thirty year sentence void. J:jimFFUf“WrIt“Of“HEB§§§“COf§E§’°""_ 1 '_`5_ _':j"“"ii'_ x vIn addressing grounds two and three, the district attorney argued that relief should be denied because: l , _ ( "The record herein is not totally devoid of evidentiary support for enhancing 4 the applicant's sentencing range." (See; Statels Reply,pp_5), Mpre specifically, the district attorney argues that there is some evidence to support the enhancement allegations based upon (1) "The applicant entered a ' judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The applicant waived his right to thehappearanc§,confrontation and cross-examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional 1uniquestions:of:law~andrfactwregarding”applicant"s“claim:that:the;Statenpresentednlno;¢;melfm1 ,_- ' “'evidence" 99 9991>099; ‘ 999 99999999,9;99999999;9;9 ;999;9999999999_9999999999; 99;99999999;` ; ;_ by Section 12. 42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; wm and due process under the Fifth and Fourteenth Amendment of the United States Consti- tution. (State' s Reply, pp.5- 6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) applicant's waiver Of his right to the appearance, confrontation and cross-' examination of witnesses." This is because the courts have long held that in all criminal prosectutions regardless of the plea or whether the punishment is assessed by the iudge or the iury, in no event shall a person charged with a.criminal;;offense' l be convicted upon his plea without sufficient evidence to support the same. Article. ' 1.15, Texas Code Of Criminal Procedure; Stone V; State, 919 S.W.2d 424, 426 (Tex. Crim. App. 1996); Messer V. State, 729 S.WLZd 694,698(Tex.Crim.App.1986); Stokes V. Procunier, 744 F.Zd at 483; Thompson V. louisville, 362 U;S. 199, 80 S.CT. 624(1978). Furthermore, proof of prior convictions contained within the presentence inves-, tigation report is inadmissible as proof of a final conviction where the P.S.I. report 1 did not contain certified copies of prior iudgment of convictions against the appli- cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.l996). Likewise, in order_for a,Stipulationjmiln;cnnsidered-as-evidencelwhere_thelplea_is"before_the_courtnlim;stateg__ nmst introduce a copy of the iudgment and sentence in each case for enhancement purpose. See: Messer, 729 S.W.2d at 698; Stone{ 919 S.w.Zd at 426; Ex parte Brown, 757 S.W.2d at 368; EX parte Rich, 194 S.W.3d at 513. ` Here, in applicant's case nomlbefore the Court of Criminal Appeals the record - shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- _ examination of witnesses, and consented to oral and written stipulations of evidence. (See: State's Reply, pp.5), \_.- y - , .;;;Lé;§§fl<;£'z;$;il<.>;nl'; ible;' 11§<§§@§§;9§?§¥}?;';$§9‘:§ ;§?_1§§;§?1?; _S_'C;a;t.€ ,@€13§ 53 emer,eh`e`[_ theFl_i_e§i:i_e§_§‘_¢_t@rpey_:éieue@_,@h§§_r_e,l;i_ef,§h<_>l_l_lsi_ ~~MW~~“Wbe?denied~simplyabecause'==$the~indictment"alleged'two'prior“felony“convictions?“a""“'*" 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for 'burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's clain1 that the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and~ R.R. Vol#Z, pp§ 109 through pp. 114). V _Applicant maintains that because the "Judgment of Conviction and the Reporter's Record" at trial shows that applicant plead "True" only once during the entire course of trial, and :the trial court found only one enhancement paragraph to be true (See: R¢R. Vol#Z, p.109 through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under 28 U.S.C.~§2254(e)(1); Habeas Court Dkanorandum/ Findings On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any decussion--"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See: Memorandum / Findings, pp~l)- 4-iApf)]_~`i'c‘a"Iit''5§:'~'I!i~'air`é]':i`'.é*fe:'I-'i:i-4`» ?I'kié~ 'I‘i*-ia].i' Court'“sv»Find:iifg's'~- ~ 5 -~ ' `¥ ~ »5~~~"~`¥-'~:--1!1»-¥ m¢__“A.L:»pli_-<'.'_<’al'_ltshowerc:ontends`....that»~.the_,(_Zour`t.,_»of<»,»v»>~~C-r~i:mi“na_»].--»Appea-_ls»-sh_ou»ld»-I_i<.)t*~ad>o_L_)’c»,--~-»t-he~~-\-.»_,‘_-_-__ strial_court!swrecommendation~to~ground_number§one-based~upon~the»faet~that»the»trial ~~~~~~~~~ court's findings is contradicted by, the record of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of Conviction By Court and (R.R. Vol#2,pp.109 through pp.114). A review of the "Judgment of Conviction By Court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court-found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). Likewise, a. review'ofthe punishment hearing shows _that the State never presented any evidenceto support the enhancement allegations thereby making ' the trial court's Senteoce of thirty\years void. Moreover, the record shows that _ the district attorney only asked the trial court to take iudical notice of the presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to support the enhancement allegation/ the trial court illegally concluded: PBased upon the foregoing evidence and the information that's been provided to --¢=~.¢;~{-_§~y ”..Tr,- 1 : 5 ..~`»}'< \ c the court and your admisslon, the court hereby finds you guilty of all five cause numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styleddthe@*' State of Texas versus Matthew C. Cotten. The respective enhancements are also found to be true. In the cause numbers, with the exception of 1227111, the Court hereby sentences you to 30 years in the Institutional Division of the Texas Department of ”`”"* "`mai“"‘"?]t@t"fce. 111 LHUSE“`NO_._ 122/111, theCourt nereDy S€n‘b€nUE'S"YO`lI‘tO 20 ye‘a’r'_S ~ ` shows that at thé'f"' in the Institutional Division of the Texas Department of Criminal Justice." (R.R. Vol#3,pp.86,line 18 through pp;87,line1-7). Section 12.42(d); Texas Penal Code governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S. W.3d 508, 511(Tex. Crim. App.2006). IN explaining how Section 12. 42(d) operates, the Court of Criminal Appeals have consistantly held that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the punish- ment can not be legally enhanced. Cole V. State, 611 S.W.2d,79, 80(Tex. Crim. App. 1981),- Mizeli v. state, 119 s.w.3d at aoe(Tex. App. 2006); Jordan v. state, 256 - s.-w.~3df»290, 2-9~3(»1-9><.€`:1111. App'. 2008). ' ' ` ' »~~_~~-~Her"e,l1n~app11cant»Lc case nowebefore~the~~Court of Cr1m1nal Appeals»theerecord - ¥:1' " hearlng the State on1y asked the court to take _iu§1g1'a1;;;;::;:: notice of the presentence investigation report which did not contain. any evidence of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled nand applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two and Three In ground number 'two, applicant argued that his sentence of thirty years is void because_the State presented "no eviden:e to support the enhancement allegations reguired by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. `\ In ground number three, Applicant argues`that he was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42 (d), Texas Penal Code;-thereby making his .thirty year sentence void{ zu;é===¥§§§"` "*"Y=TE=P§ET£TUHZFUT°WFTE“OE‘Hab§§§°€&rpus In addressing grounds two and three, the district attorney argued that relief should be denied because: \ "The record herein is not totally devoid of evidentiary support_for enhancing the applicant's sentencing range." (See;_gtatels Reply,pp,§), Mbre specifically, the district attorney argues that there is some evidence to support the enhancement allegations based upon (1) "The applicant entered a judicial_confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The applicant waived his right to thehappearancé,confrontation and cross-examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional 1o11questionsgof;law;and:fact;regardingiapplicantlsiclaimithatrthexState;presented;!no;11_n"“1;; m`"wdevidence""t°WSuPP°rt*the“eSSe§P§??§SISD€E§§:?YlFif§EE§§HS?T??F§P§F§S§§RY§§§;E?ZE§F§§;:_-11 by Section 12.42(d)y Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti- tution. (State's Reply/ pp.5-6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) applicant's waiver of his right to the appearance, confrontation and cross- n examination of witnesses." This is because the courts have long held that in all criminal prosectutions regardless of the plea or`whether the punishment is assessed by the iudge or the iury, in no event shall a person charged with a criminal; offense l be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex. Crim. App. 1996); Messer V. State, 729 S.W.2d 694,698(Tex.Crim.App.1986); Stokes V. Procunier, 744 F.Zd at 483; Thompson V. Louisville, 362 U.S. 199, 80 S.CT. 624(1978). Furthermore, proof of prior convictions contained within the presentence inves- tigation report is inadmissible as proof of a final conviction where the P S I. report 1 did not contain certified copies of prior iudgment of convictions against the appli- cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for ' ~heMsidened£aaeyademe;meneamexnlea_d&beimeMnamess;amml must introduce a copy of the iudgment and sentence in each case for enhancement purpose. See: Messer, 729 S.W.2d at 698; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at 368; tx parte Rich, 194 s.w.zd at.513. 4 ‘ Here, in applicant's case novlbefore the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a iudicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- l examination of witnesses, and consented to oral and written stipulations of evidence. (See: State's Reply, pp.5). -..§l!;seil§_li_l§§i;<>n,; the li駧>i.’§§ ;C;L§E§lrf'.l`§'_` ;$T;l§\.§$ § that: th§€i .§ialté ;@ér.i.i §§ ?irilli.`<§éf.l§l <_i§l:e`. 1 ,`_ _ `_ '.` - process aid due course of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12$42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth Amendment of the United States Constitution. Consequently, no rational trier of fact could have found the essential elements of the enhance- ' ment allegations true beyond a reasonable doubt. Habeas Courtb£mxuandum / Findings In addressing ground number two and three, the trial court erred in stating : "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. The Court recommends that.grounds for relief be denied. (See: Memorandum / Findings, Ypp; 1). Applicant's Traverse Tp The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground two and three be denied based upon the trial court's finding that--"applicant's iudicial confession (standing alone) provides some ,evidence supporting the enhancement of his sentencing range to habitual offender status." Applicant maintains that his iudicial confession standing alone is not enough to support proof of a final ~¢onviction, where the P.S.I. report did not contain lcertified copies of prior iudgment of convictions against him. See:‘Garcia V. State, 930 s.w.zd 621, 623(Tex.'App. 1996); Ex parte Brown, 757 s.w.zd at 368; Ex parté Rich, 194 S.W.3d at 513. l . " The Texas Court of Criminal Appeals have long held that in all criminal prosecu- _tions regardless of the plea or whether the punishment is assessed by the judge or 4 the iury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of 'Criminal Procedure} Stone V. State, 919 S. W.2d 424. 426(Tex. Crim. App§ 1996); Messer V. State, 729 S. W.2d 694, 698(Tex. Crim App. 1986).LIkew1se, allegatlons of prlor _ convictions contained within the presentence investigation report is inadmissible as ,proof_ of a final convictlon, where the P. S I report did not containpcertified copies _9f_ prior iudgments of__ convictions_ against the applicant. Garcia, 930 S. W.2d at 623. .......... In summary, the State must introduce a copy of each iudgment of conviction, in each case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell v. state, 228 s.w.3d 343 at 346;-Ex parte Rich, 194 s.w.3d at 513. 6 Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take iudicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R§ Vol#2,pp.114, line 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were "no evidence"- of prior convictions contained within the P.S.I. report. IThus, based _ upon the record¢ no rational trier of fact could have found the enhancement allegations‘ true beyond a reasonable'd_oubt.l In conclusion, the recommendation of the trial »court v must be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearing. Ground Number Four And Five _ In ground number four and five, Applicant argued that Detective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State\Constitution when he failed to read the full "Miranda Warning" to him as required __~by_"""_* '_p&"~Ei~'cIe“-BB‘*-Z€~§“% ”.* "(~a'%‘(‘~'z“)`,~'“'fe`_'xas~€ode“- ‘j°;ir“tr'llri'l;al'"'rrLzLe-=dare. ` In ground number five, Applicant argued that Detective Anderson violated his due process right under the fifth and fourteenth amendment of the United States Constitu¢ tion when he threatend .physical harm to him and his property in order to coerce him to give a self-jncriminating statement against himself. State's Reply To Petition For writ of Habeas Corpus In addressing ground number four and five, the district attorney argued that relief should be denied because: FThe applicant's Miranda and due process grounds for relief are not cognizable »Mbecause.these.same complaints were re1ected on direct appeal." (See; State!s Reply, pp.6). ~ Howeverthedlsmctattomeyhasfa ledtoaddressappllcantS»~c@nstltutlonal » »~ -,;§§[. ;§.;qliéé£'i'c§£§:$§;`i£i};éhal ._fa'c‘t`§ ` édér&indl.éaai?¢i`c§r{a`i levi déii:`€=_{ that Eé,§péih&f_.pré`s'ér{£é§_;fbi ;§;,1§'_`_`;1 the first time in this foregoing habeas corpus petition that was not presented on direct appealt This evidence creates an exception to the general rule that claims` raised and re1ected on direct appeal are not cognizable on habeas corpus. EX parte Schuessler, 846 S.W.2d atn852(TEx; Crim. App.1992); Ex parte Goodman, 816 S.W.2d 383, 385(Tex. Crim, App, 1991); EX parte Russell, 738 S.W.2d 644, 646(Tex. Crim.App. 1986). Habeas\Court Memorandum / Findings _In addressing ground number four and five, the trial court erred in stating: "The Court finds that the applicant's miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding, pp. 1\. Applicant's Traverse Tb The Trial Court's Findings> Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground four and five be denied based upon the trial court's finding that: ___*___ ` _,__ ` ___*_____-_______~ "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claims now before the court are fundamental constitutional claims that are based upon newltheories that were not presented on direct appeal. EX parte Good~ nen, 816 SFW;Zd 383, 385(Tex. Crim. App.-1991); EX parte Russell, 738 S.W.2d 644(Tex. Crim. App.1986); EX parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law ' is clear, although habeas corpus is traditionally .unavailable to review matters'which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte Schussier, 846 S. W.2d at 852 (Tex. Crim. App. 1992)(granting relief due to lack of iurisdiction); EX parte Russell, 738 S. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void r.prior,convictlon),_Ex parte Bravo, 702:S W.2d 189(Tex Crim App. 1982)(qrant1ng;re11ef“_A_ _ do to the improper excusal of a veniremamber): Ex vpa"rte Clark, 597 S. W.2d 760(Tex.'~~--~-~~-*» Crim.App.1979)(granting relief due to the trial court's failure to apply the law to the facts of the case). Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals, pp. 4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective>Anderson violated his Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warnin " to him as required by Article 38:22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of law, pp.14). ` After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number one on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently, the trial court's finding that --"applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded back to the trial court for a new trial. 'Idkewise, a review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and voluntarily made. (See: Opinion of the Eight Court of Appeals, pp. 5). However, a review of applicant's fifth ground for review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process right under the Fifth and v Fourteenth Amendment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incriminating statement against himself. (See: Applicant's Memorandum of Law, pp.l?). »111 99919¢1'_19;£19; 9999911~';1_99 applicant'$ qrou_nd~nu@er five in his habeas Corpus petition to applicant's claim number two on his direct appeal, it becomes clear that the claims 1are not the1 same because applicant is now presenting a constitutional issue h._of. fundamental error based upon a theory not alleged on direct appeal. Consequently, *TW~&* the trial court' s finding that --"applicant's Miranda and due process grounds for re- lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the alternative, applicant' s cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- cant So Moves The Court. Respectfully Submitted: Matthew Cotten No. 1826716 Coffield Unit 2661 F. M. 2054 Tennessee Colony, Texas 75884 10 Certificate Of Service I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct copy_of this foregoing instrument has been served upon Steven W. Conder, Assistant DYLLi£t Att°£n@'>" 401 W~ B£,l_knap, Fort worth, Tean 76196-0201. executed an this 25thwm_ day of February, 2015. ' " . _ SiQ'Il! WVAW/ &ZZE\_/ Matthew Cotten No. 1826716 Applicant, Pro se ll '_-wri_t No. c-4,32_`~‘_0_10;374-1`227021-A; m me 432nd__.nmpiai ; District court In ground nuber one, applicant contends that his sentence of thirty years in Cause No. 1227021D ,_ i§ illegal because the "Judgment of Conviction By Court" and the "Reoord At Trial" shows that the trial court found only one ermanowent paragraph true; thereby making his punishment excessive. l. m ground nwhert\u;, applicant contends that his sentence of thirty years in Cause No. 12276_21]). , i§ void because the State presented "No Evidence" t`o support the ' whanowent paragraphs alleged in the indictment, as required by Section 12. 42(d), Texas Penal Code§ thereby denying him due process under the State and Federal Och- stitution. A ry §;?. . '?Se».'-\>' ." \ In grand maher three, Applicant contends that he was denied due process and due course of l§w when the State presented "no evidence" to support the enhancement allegations as required by Section 12 42(d), Texas Penal Code; thereby making his thirty year sentence void. ' » q In ground nwber four, Applicant contends that Deteotive Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required by Article 38 28§ 3(a)(2), Texas Code of Criminal Procedure. ?".r:-' . In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating n statement against himself. " -' " § Argwent And Authorities Ground Numberg O`ne -5; 1 In ground nmnber one, applicant argued that his sentence of thlrty years in Cause No._ 1222336D is illegal because the""Judgment Of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. state's Repiy 1§9¢;1-.1§1¢;1 ear writ of Habeas corpus In4 addressing ground number one, the district attorney argued that` relief should:_'.` be denied simply because -"_'the indictment alleged two prior felony convictions a 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not exeessive." (See; State's Reply 'Ib Petition For writ Cf Habeas 4 Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's claim that the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction iBy Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the V’,hab,itual ` offender allegations. (See: Judgment Of Conviction By Court, Appendix No. .1-5, and R.R. vo1#2, pp. "109 through pp. 114). ' App11cant maintains that because the "Judgment or Conviction and the Reporter'e Record" at trial shows tha't applicant plead "True" only once during the entire course of tr1a1_, and the trial court found only one enhath paragraph to be true (See: R.R. vol#Z¢pp.lOQ through pp.lld) there le no evidence contained within the record to support the tr1e1 court's habitual offender finding. Therefore, the holman court'e findinge le not ent1tlad to the preemption of correctness under 28 U.S.C.i§Z_?S#(e)(l). mmcourtimndmv?indinge v On February 2, 2015, the habeas court induce 1t'e"iiemrand1m / Findinge" adopt1ng the district attorney_° o interpertation of the events on all five constitutional claim without addreaaeng applicant's questions of law and facts _ " In addressing ground nminer one, the trial court simply stated without any decuaeion--"'lhe court finds that the applicant's thirty year sentence is not emmaaiva. The court recommends that this ground for relief be denied." (See: mirandqu / Findinge, pp.l). ~,` ` ‘ 1 \ v , . t . Applicant'o Travm 1b The Trial court's Findings Applicant now contends that the Court of Criminal Appeale should not adopt the trial court's remendation to ground amber one based upon the fact that the trial court's findings le contradicted nw the record of evidence at trial which shows that the trial court only found one enhancment paragraph to be true. (See: Judg- - mut of Conviction .By Court and§,.('R.R. Vol#Z,pp.wQ through pp.lld). A review of the "Judgment of Conviction By `Gourt" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of €onvictionBy Court-waiver of JUry Trial"). Likewise, a review ortho punishment hearing above that the State never presented anyghr evidenceto support the enhancement allegations thereby making the trial court's sentence of thirty years void. iioreover, the record above that the district attorney only asked the trial court to take judicial notice of the presentence investigation report and then rested. (R.R. Vol#B,Pp-?, iine 6 through pp.8, line 1_-15). Nevertheleee, without any evidence beingpresented at trial to support the enhancement allegation, the trial court illemlly concludede 'E>\Baaed upon the foregoing evidence and the information that's been pro\{1ded to 3 the court and your admission, the court hereby finds you guilty of all five cause numbers in 1222336, 1227019, 1227020, 1227021, 12271_11, all respectively st`yled the State of Texas _;versus Matthew C. Cotten. The respective enhancements are also found to be true. In the cause numbers, with the exception of 1227111, the Court hereby sentences you to 39 years in. the Institutional Division of the Texas Departnent of Crimina1 Justice. In Cause No. 1'227111, theCourt hereby sentences you to 20 years in the Institutional 9ivision of the Texas Department of Criminal Justice.'§ (9.R. Vol#3,pp.86,line 18 through pp.87,_line1-7) e,_<-w»' ;- Section 12. 42(d), Texas Penal Code governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as _a habitual offender. Ex Parte Rich, 194 S W. 3d 508, :j;:"ii'"! 511(Tex Crim. App.2006) IN explaining how Section 12 42(d) operates, the Court of “Criminal Appeals have consistently held that the State must present evidence whish» supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the punish- ment can not be legally enhanced. cole v. state, 611 s.w.zd 79, ao(Te¢'. cirim. App.. ?"' 1981); Mizell V. State, 119 S W.3d at 806_('I_“ex. App. 2006),- Jordan V. ,State, 256 s.w.ad `_290,` 293('1~@¢ crim. App. 20081. ' ' ' ` ~ 35 ' "Here, in applicant's case now before the Court of Criminal Appeals the record shows that at the- “&`, ` hearing the State only asked the court to teke judicial notice of the presentence investigation report which did not sontainf.. any evidence of any prior felony sonvictions. (R.R. ; V01#3,pp.7, line 6 through pp.8, line 1-15) Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fast could have found the enhancement allegations true beyond a reasonable doubt In conclusion, the ' findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. In ground number two, applicant argued that his sentence of thirty years is void because the State presented "no evidence to support the enhancement allegations required by Section 12. 42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. In ground number three, Applicant argues that he was denied due process and due course of 1aw when the State presented "no evidence" to support the enhancement allegations as required by Section 12 42 (d), Texas Penal Code,- thereby making his thirty year sentence void. - ‘. ~j~.`,*~r,»~:t 4 state's_ memy 1b Petit;m nor Writ of repose corpus ` g should be denied because- "’l‘he record herein 1s not totally devoid of evidentiary support for enh ing the\ applicant's sentencing range." (See, State 5 Reply,pp,§) §_;E §§ , § 51 §§ .:; ,K`~s .' . ,_,_\ § '.., _ More specifically, the district attorney argues that there 1a some evidence to support the enhancement allegations based upon (1) "'I_‘he_ applicant entered a _», judicial confession admitting to all of the allegations in the indictment, including the enhancement andv habitual allegations; and (2) "The applicant waived"*his right to the: appearnce, confrontation and cross-examination of witnesses, and consented to ora1 and written stipulations of evidence." (State's Reply, pp.5). z ;-f. j ' L; ;.» `.‘~ r . . _ .":r’ , ~ = '€ ;# ~,.:- » <' ~ ,. ‘ .~ . r_` ;§__§~,-._.“ _ -'. ._=_.*:,_ Hoxsn=:ver,»1 the district attorney failed to address applicant's constitutional questions of law and fact regarding applicant's claim that the State presented "no evidence" to support _the essential elements of the enhancement paragraph as regizired by Section 12.42(d)`, 'Iuras Penal Code; Article 1 15, Texas Qode of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti-:- tution. (State' s Reply, pp.S~G) § Applicant mintains that proof of prior felony convictions regoires more_` than (1) applicant's judicial confession admitting to all of the allegations in the indictment, and (2) applicant' s waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is bmause the courts have long held that in all criminal prosectutions regardless of the plea or whether the punishment is assessed by the judge or the jury, in no event shall a person charged with a criminal§ offense be convicted upon his plea without sufficient evidence to support the same. Articl;e 1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 ('I’e:r. crim. App. 1996); Messer v. state, 729 s.w.zd 694,698(1ex.cr1m.1\pp.1986);. stokes pv. Procunier, 744 F.Zd at 483; Thcropson V. flouisville} 362 U.S. 199, 80 S.C‘l‘.'l 62§(1978).[ / `{(~ Furthermore, proof of prior convictions contained within the presentence inves- tigation report is inadmissible as proof of a final conviction where the P.S.I. report did not contain certified co§ies of prior judgment of' convictions against the appli- cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex. Crim. App.1996). Likewise, in_ order for a stipulation to be considered as evidence where the plea is before the court, the state must introduce a copy of the judgment and sentence in each case for enhancement purpose See: Messer, 729 S.w.Zd at 698; Stone, 919 S.w.Zd at 426; Bx parte Brown, 757 S.w.Zd at 368; m parte Rich, 194 S.w.Zd at 513. ' '~ ~ 4 Here, in applicant's case now before the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: _ ‘ ’ *The applicant entered a judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations '_ *The applicant:`!i`waived his right to the appearance, confrontation and cross- exai\ination of witnesses, and consented to oral and written stipulations of evidence. (See; State's Reply, pp.5). ' ' In conclusion, the record clearly shows that the State denied applicant due process and due confess of law when the district attorney presented "no evidence" ` at trial to support the enhancement allegations as required by Section 12.42(d), Tecas penal code miele 1.15, rees code of criminal Procedure. and the Fifth and Fourteenth“Amendment of the lxiln:lted States Constitution. Consequently, no rational trier of fact could have found the essentia\ almonte of the enhance- ment allegations true beyond a reasonable doubt. mbeasoourtumorand\m/Findings In addressing ground number two and three, the trial court erred in stating a "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. ) The Court recommds that grounds for relief be denied. (See; Hemorandmn / Findings, ppc 1). Appiioarlt's Traverse "ro 'nle_ mai court's Findings Applicant now contends that the Court of Criminal Appeals should not ado§t the trial court's recommendation that ground two and three be denied based upon the trial court's finding that--"applicant's judicial confession (standing alone) provides some evidence supporting the enhancement of his sentencing range to habitual offender , status." Applith maintains that his judicial confession standing alone is not enough to support proof of a final conviction, where the P.S.I. report did not contain `~_ certified copies of prior judgment of convictions against him. See: Garc\e v_. State, 930 s.w.zd 621`, 623(Tex App. 1995); ax parte Brown, 757 s.w.2d at 360; F.x parte 1 4 Rich, 194 s. w.3a a_\~,§ 513. 9 1 v y The Te`xa§ Court of Criminal Appeals have long held that in all criminal presecu-: tions regardless of the p1e§ or whether the punisl'ment is assessed by the judge or the jury, in `no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article _1. 15, Texas Code of Criminal Procedure; Stone V`. State, 919 S.W.2d 424. 426('I'ex._ Crim. App.11996); Messer V. State, 729 S.W.2d 694, 698(Tel'c.Crim.App.1986).I.Ikewise, allegations of prior convictions contained within the presentence investigation report is inadmissible as proof of a final conviction, where the P.S.I. report did not contain certified copies v of prior judgments of convictions against the applicant. Garcia, 930 S.W. 2d at 623. " In slmmary, the State must introduce a copy of each judgment of conviction, in each case used for enhancement purpose. See: Section 12. 42(d), Texas Penal Code; Terrell V. State, 228 S.w. 3d 843_ at 846; Ex parte Rich, 194 S.W.3d at 513. _ Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take judicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp. 114, line 16-21) and (R.R. Vo_l#$,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were "no evidence" of prior convictions contained within the P.S.I. report. 1 iqhus, based upon the record, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the recommendation of the trial court must be overruled and applicant's case remanded back to the trial court for a new punishment hearing. " . men t : . 1 §§ n . _ ' emmammesrrour elusive , ,` g fn ground number four and five, Appli dant argued that Datective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State Constitution when he failed to read the full "Miranda Warning" to h1m as required by Article 38;22 § 3(a)(2), dens Code of Criminal Proceedure. v __ In ground number five, Applicant arg; ed that Detective Andarson violated his due ' process right under the fifth and fourteenth amendment of the Im1ted States Constitu- tion when ha threatande» physical harm to him and his property 1n order _to pearce him to give _a self- incriminating statement against himself. _ 5 . "," § ' ," l x . , ' ‘ }_ il l state"s<-nspiyl"re; manion For writer levees ooqu In addressing ground nlnnber four and five, the district attorney argued that ` _' " relief should ha denied because: v . . ., _ :` §__ ‘ "The applicant's :Miranda and due process grounds for relief are not cognizable '~ ', because these sama complaints were rejected on direct appeal." (See; _Stata's Reply, pp-G) ' ‘~ ~ ‘ .`¢ _ However, the district attorney has failed to address applicant's constitutional . questions of law_ and fact regarding additional evidence that is being presented_jj for the first time in this foregoing habeas corpus petition that was not presented on` direct appaal. ‘I_'his_ evidence creates an exception te the general rule that claims raised and rejected on direct appeal are not cognizable on habeas corpus. Eli parte Schuessler, 846 S.W.2d at 852('1'Ex. Crim. App.1992); Ex parte Goodman', 816 S.W.2d 383, 385('1'e_x.Crim, App. 1991); Ex parte Russell, 738 S.W.2d 644, 646(T,ex._Cr1m.App. 1986) if .~ _ `_ ` _’ In addressing ground number four and five, the trial court erred in stating: "The Court finds that the applicant's miranda and due process grounds for relief are not cognizable because they were litigated en direct appeal." (Sae_l_ liemorandlml/Finding, pp’ 1). _ n ;- ?j 5 § .l ~ ' \ »"l ,. . Applicant's Traverse 'ro 'l'he ‘l’rial Court's Findings Applicant now contends that the Court of Criminal hppeals should not adopt the trial court's reconmendation that ground four and five be denied based upon the trial court's finding that: ' . ;` "applicant's Miranda and due process grounds for relief are not cognizable because they versilitigated on direct appeal." (See: Memorandum / Finding, pp.l~). Applicant maintains that his claims presented in ground numbers four and five j of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claim nos before the court are fundamental constiti'ltional claims that are based upon new theories that were not presented on direct appeal. Ex parte Good~ l'xlnal‘x, 816 S,H 2d 383, 385(Tex. Crim. App. 1991); Ex parte Russell,_ 738 S.i'_l.2d §44('I’ex Crim. App.1986); Ex parte Schuessler, 845 S.W.2d at 852('Dax Crim. App. 1992). 'l-‘he law is clear, although hmas corpus is traditionally unavailable to review matters which were raised and rejected on appeal, claire involving jurisdictional defects or invoking f\mdmental constitutional rights may be raised. Ex parte Schuss_\_'-er, 846 S__.w.2d at 852 ('Dex. Crim. App. 1992)(granting relief due to lack of jurisdiction); Ex parte Russell, 738 S.W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void prior conviction); Ex parte Bravo, 702 S.w.Zd 189('1'90¢ Crim.App. 1982)(granting relief do to the improper excusal of a veniramber)s mr parte Clark, 597 S.W.2d 760(Tex crlm.zlpp.1979)(grantlng relief due to the trial court's failure to apply the law co ' the facts of the case). \ ‘ ' Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38. 22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court o_£ Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated his wranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warning" to him as required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memrand\m of law, pp. 14). After canparing §pplicant's ground number four in his habeas corpus petition to applicant's claim number i.}nne on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory _not_ alleged on direct appeal. Consequently, the trial court's finding _, that-- --"applicant' s Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded back to the trial court for a new trial. ‘ 5".~ § : '. .~€ _ ` ; ' ‘ ' »‘-’ §§ '= ‘;L; §§ ‘. _'» \ .é Likewise, a review of applicant's second claim on direct appeal shows that he _ argued that his waiver of his statutory rights was not knowingly, intelligently, and "“` voluntarily made§ (See: opinion of the Eight Court of Appeals, pp.5). However, a review " 'of applicant's fifth ground for review on his habeas corpus petition showsiv that he allaged that "Detective Anderson violated his due process right under th" Fifth and§ Fourteenth Amandment 6f the United States Constitution when he threatened physical ' abuse to applicant and his property in order to coerce him to give a self»incriminating statement against hicself. (Seer Applicant's Memorandum of law§ pp.17) §§‘ "ff_` ‘ .rl \ ; '*’~ ln' smcnary after canparing applicant's ground number five in his habeas corpus petition to applicant's claim number two on his direct appeal, it because clear that x the claims are not the same because applicant is now presenting a constitutional issue of‘fundamental error based upon a theory not alleged on direct-f appeal. Conse@uently, . ` the trial court's finding that --"applicant's Miranda and due process grounds for re- w ‘lief are not cognizable because they were litigated on direct appeal"-nmst be over- " ruled and the case remanded back to the trial court for a néw trial. " “ conclusion In conclusion, the findings of fact and conclusion of law recanmended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the altemative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- cant So Moves Tha Court. Respecr~.f'uny sumir~.eed= §§¥H§i’dc§§i€“ N°- 1826715 o _ ' ' 2661 F.rr. 2054 Tennessee Colony, Texas 75884 10 ”"" " certificate Of Serv:loe I, Matthew Cotten, Applicant, Pro se, do hereby certify that true grid correct ¢'\¢Z- copy of this foregoing instrument has been served upon Steven W. Conder, Aesistant District Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th day of February, 2015. » _ ' . § ._ . Matthew cowen No.’- 1»826716"_ _‘- m : 1 ` ' ~ ’ Applicant, Pro ' ` " w § §§ j 1-.1_ 1 -'.§ . l ;;`I vi z_d ny :»:., 1 §§ 11 ,.~.writ No. c-432-Co16'375"-§1-2271'1..'1;A . m Parte " m me 432nd societal maurice own 'iarrant munty,._ ‘rmras' §3. 4 w ` z ` 1 On January 4, 2015, Applth filed this foregoing writ of homes corpus § - ' alleging;: five constitutional mrblations during the course of his trial court praceeding. ’ ` In ground huber m3 5991ioant contends that his sentence of twentyf Years in Cause No. 1227111D , is iiiegal because the "Judgment of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhanowent` paragraph true; thereby making his punishment excessive. In ground timber tr`n>, Applicant contends that his sentence of thirty years in Cause No. ‘1.227111D . is void because the State presented "No Evidence" to support the enhancement paragraphs alleged in the indictment, as required hy Section 12.42(d),4 Texas penal Code, thereby denying him due process under the Stat”e:and Federal Con- stitution. In gro\md maher three, Applicant contends that he was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42(d), Texas Penal Code; thereby making his thirty year sentence void. In ground -nul§aer faur, Applicant contends that Datective Anderson violated his- "Miranda Right" guaranteed to' him by the Fifth and Fourteenth Amendment,"z;`uhen he failed to read the full "Miranda warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. .v In ground timber 111¢9, Applicant contends that Detective Anderson violated hi:e " "Due Frocess Ri';.y;ht'!n under the Fifth and Fourteenth mendmant, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminat1ng statement against himself. ._4~ act mm And Autvoritiee * z f Ground Nmuber One ; In ground number one, Applicant argued that his "§entenc_e of twenty, years in Cause No. 1227111D is illegal because the""Judgment cf conviction By court" and the "Record At Trial" shows that the trial court found only one enhancement para» graph true, thereby making his punishment emessive. state-enemy ns reviews nor writ or Habeas corpus In addressing ground number one, the district attorney argued that relief should be denied simply because -»-"the indictment alleged two prior felony convictions: a 2003 conviction for possession of a firearm by a felon, and a 199'7 conviction for 4 , burglary of a habitation. The trial court found these prior convictions to be true. ' 5 Thus, the applicant qualifies as a habitual felony offender. The applicant's twenty id year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive.” (See; State's Reply To Petition For writ Of habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's claim that the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction `By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancwe`nt paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment Oi’ Conviction By Court, Appendix No. 1-5, and R.R. Vol#2, pp. 109 through pp. 114). Applicant maintains that because the "Judgment of Convictionm and the Reporter' 's § § Record" at trial shows that applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#2,‘pp.109 through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1). .;- xiv-q mheascourtumnrandm/Findings 0n February 2,:§? 2015, the habeas court issues it's "Mem_orandum / Findings" adopting the district attorney s interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and facts " ' f` '¢'E In addressing ground number one, the trial court simply stated without any decussion-~"’I_he Court finds that the applicant's thirty year sentence is not excessive. The court recmmends that this ground for relief he denied." (See: Memorandum / Findinge, pp.l). ' ~ _§,5" ":; ' 4 .. ~._';.;\l; ` '_ . -;'- '.' ' ‘) \Applicant's Traverse ‘Ib The Trial Gourt's Findings -¢' Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recomnendation to ground nmnber one based upon the fact that the trial court's findings is contradicted by the record of evidence at trial which showe that the trial lcourt only found one enhancement paragraph to be true. (See. Judg- mens of convictipn 'By; court anal.-;('R.n. voi#z,pp.log through pp.114); ' A review of the '_'Judgment of Conviction By court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). Likewise, a revieon the punishment hearing shows that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's sentence of twenty years void. lmreover, the record showe that the district attorney only asked the trial court to take judical notice of the k presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Nevertheless, without any evidence beingpresented a_t trial to support the enhancement allegation, the trial court illegally concluded: 'i§‘Based Won the foregoing evidence and the information that's heeii provided'to 3 the court and your admission, the court hereby finds you guilty of all five cause numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the State of Texas versus Matthew C. witten.'rhe respective enhancements are also found to he true. In the cause nmbets, with the exception of 1227111, the Court hereby sentences you to 30 years in the Institutional Division of the wise Department of Criminal~.justice. In muse No. 1227111, theCourt hereby sentences you to` 20 years in the I_nstitutional Division of the Texas Department of Criminal Justica.'_' (R.R. Vol#?,pp.&€,line 18 through pp.87¢1ineI-7) Section 12 42(d), Texas Penal Code governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior lfelony offenses inorder to sentence anyone as a habitual offend§r. Ex Parts Rich, 194 S.W.3d 808, 511('1"ex Crim. App.20_06). m explaining how Section 12.42(d) operates, the Court of Criminal Appsa_ls have consistently held that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because i§ the proo§ at trial fails to correspond with the enhanoonant allegations,` the punish-_- mt can not vs ieg§iiy enhances cort v. st§§e. 611 s.w.za 79, a’o<'r§x. crim__. zipp. ` 1981), Mizell V. E`§tata, 119 S.W.BG at BCS(Tsic; App. 2006); Jordan V. 8tate, 256 S.Ci¥.$d 290, 293(Talc. Crim. App. 2008). ~ ‘ Here, in applicant's case now before the Court of Criminal Appeals the record ,.":', ‘_'_,-__hearing the State only asked the court to take judicial notice of the presentence investigation report which did not containc;jj, any evidence of any prior felony convictions (R.R. " 1 Voi#§,pp.?, line 6 through pp.8, line 1-15)¢ Thus, the record clearly shows that the State presented no evidence to suwo,rt the exuiancemen_t allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and rsnanded back tothe trial court for a new punis?rment hearing. In ground number two, applicant argued that his sentence of twenty years is void because the State presented “no evidence to support the enhancment allegations § required by Section 12. 42(d), Texas penal Code, thereby denying him due process under the State and Fedsral Ormstitution. ' ' ' h In ground number three, Applicant argues that ha was denied due(.-;.{f proceée and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42 (d)`, 'Baxae meal Code; thereby making his twenty;` year sentence void. 4 State’e- Reply To` Pe_titim For Writ of ms corpus In addressing grounds two and three, the district attorney argued that relief should be eenlee because: ` ' . ... :~. . "The remrd€ herein le not totally devoid of evidentiary support for enhancing the applicant's sentencing range.” (see¢ state‘e Reply,'.pp.§) § n ` lmra specifically, the district attorney argues that there le some evidence to support the enhancemnt allegations based upon (1) "The applicant entered a _, judicial confession admitting to all of the allegations in the indictment, including thez-_ appearance, confrontation and cross-examination of witnesses, and consented to ora1 and written stipulations of evidence." (State's Reply, pp.5). ` _,;:- ' However,' the §iatrict attorney failed to address applicant's constitutional questione of law and fact regarding applicant's claim that the State presented "no evidence" to support the eesential elements of the enhancement paragraph as required by Section 12 42(<3), Texas Penal Code; Article 1 15, Texas Code of Criminal Procedure; and due process trader the Fifth and Fourteenth Anendment of the United States Consti- tution. (State's Reply, pp.S-S). Applicant maintains that proof of prior felony convictions requires more than (1) 4 applicant's judicial confession admitting to all of the allegations in the indictment, and (2) applicant's waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is because the courts h"ave long held that in all criminal prosectutions regardless of the plea or whether the punishment is assessed by the judge or the jury, in no count shall a person charged with a criminally offense- be convicted upon hie`.plea without sufficient evidence to support the same. Arti€l)e 1.15, rees code of criminal Procedure; stone v. state 919 s.w.ze 424. 42`6 (!re¢. crim. App. 1995).} cgeeeer v.` scate, 729 s.w.za sge,ssa(m.crm.zxpp.was): stokes v. Procunier, 744 F.Zd at 483; 'lhompson V. louisville, 362 U.S. 199, 8¢)'$.€’1‘..l 624(1$78.). Furthermor§, §roof of prior convictions contained within the presentence inves- tigation report is inadmissible as proof of a final conviction where the P.S.1. report did not contain certified copies of prior judgment of convictions against the appli- cant. Gar¢ia V. State, 930 S..w.Zd 621, 623(Tex. Crim. App 1996) Likewise, in{: order for a stipulation ~»to: be:;iv cnnsidered as evidence where the plea is before the court, the state must introduce a copy of the judgment and sentence in each case for enhanth purpose See: Messer, 729 S.W.2d at 698; Stone, 919 S.w.Zd at 426; Ex parte Brown, 757 S W.2d at . _"l,. 368; Ex parte Rich, 194 S WZd at 513. 4 j:_; _? »;§\ , - .», . . Here, in applicant's case now before the Court of Criminal A§peals the record . shows that the district attorney admitted that the only evidence supporting the § _: enhancing of applicant's puziishment at trial area " ‘ """ " *_'Ihe applicant entered a judicial confession admitting to all _of the allegations in the indictment, including the enhancement and habitual allegations, ,_ <'. *The applicant waived his right to the appearance, confrontation and cross- »»»»» evidence. (See; State's Reply, pp.5). In conclusion, the record clearly shows that the State denied applith due process and due coui*se of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12 42(d), Texas Penal Code; Article 1 15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth: Amendment of the United States Constitution. Consequently, no rational trier- of fact could have found the essenti;i'\ elements of the enhance-' ment allegations true beyond a reasonable doubt. In addressing ground number two and three, the trial court erred in stating s "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. The Court reccnmends that gr6unds for relief be denied. (See: Memorande / Findings, pp. 1) Applicant's Traverse ~'m The Trial court's Findings Applicant now contends that the vCourt of Criminal Appeals should not adept the trial court's recenmondation that ground two and three be denied based upon the trial court's finding thet--"applicant's judicial confession (standing alone) provides some evidence supporting the enhancement of his sentencing range to habitual offender status.” Applicant maintains that his judicial confession standing alone is not enough._' to support proof of a final tondction, where the P.S.I. report did not contain _ certified copies of prior judgment of convictions against him. See: Garcia §. State, 930 S.W.2d 621, 623(m App. 1996); E:_c parte Brown, 757 S.W.2d at 368; Ex parte Rich, 194 S. W.3d at 513. The 'I‘euca_s Court of Criininal appeals have long held that in all criminal presecu- tions regardless of the plea or whether the punishment is assessed by the judge or the jury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Articlo 1 15, Texas Code of Criminal Procedure; Stone V. State, 919 S.w.Zd 424. 426('I'ex. C_'rim. App. 1995); Messer v. seate, 729 s.w.za 694, ega(mx. crim.App. _1936). Likewise, auegations or prior ' convictions contained within the presentence investigation report_is inamissible as '. proof of""a final conviction} where the P.S.I. report did not contain certified copies of prior judgments of convictions against the applicant._ Garcia, 930 S.W. 2d at 623. In summary, the State must introduce a copy of each judgment of conviction, in each case used for exu\ancmuent purpose. See: Section 12 42(d), Texas Penal codes Terrell V. State, 228 S.W. 3d 343 at 346; Ex parte Rich, 194 S.w.Bd at 513._ Here, in applicant's case ncuh_e_foro the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take judicial notice of the presentence investigation report and then rested without pre- senting any evidonco of a judgment of prior conviction, (Seez R.R. vol#2,pp.11\`i;'4, line §16-21) and (R.R. Vol#d,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were "no evidence" of prior convictions contained -vithin the P.S.I. report.»f'§§'!f‘hus, based upon the record, no rational trier 'o_f_ fact couldhave found the enhancement allegations true beyond a reasonable"`doubt. In_ conclusion, thereconmendation of the trial court must be overruled and` applicant's case remanded back to the trial court for a nev ` punishment hearing. ne . j Grolmd NmbveerrAndFive ' In;ground_ number four and five, Appliéant argued that _Detective Anderson" violated me Miranda night guaranteed tn him by the fifth and fourteenth amendment of the xmitea ' State Constitution when he failed to reed the full "Miranda Narning`" to him as required by Ar§ic_le 38.22 § 3(a)(2), Tm¢as Code of Criminal Proceedure. _ ~ » g ‘ - In ground number five, Applicant amued that Detective Anderson violated his due process right under the fifth and fourteenth amendmnt of the United States Constitu- tion when he threatend physical harm to him and his property in order §o coerce him to give a self-»lncriminating statement against himself. ' . ds\».ate'¢=,¢ nepiy,:mpetitijmrormt.ofaabeae corpus 1 _ I_n addressing ground number four and five, _§hs d1s§rict attorney argued that relief should he denied because: ` ~ ~ » "The applicant's mran`da and due process grounds for relief are not cognizable becausel these same cmplaints were rejected on direct appeal.“ (See; State's Reply, . pp.e) " ; , l »~ __ _ ' / ‘ _However, the district attorney has failed to address applicant's constitutional questions of vla\_'i'hari;d_ fact regarding.` additional evidence that is being presented:_“; for ` the first time in §hie',fore§oing habeas corpus.petition that was not presented on direct appeal. This evidence creates an exception to the general rule that claims raised and rejected on direct appeal si-are not cognizable on habeas corpus. Ebc parte Schuessler, 846 ,S.W.Zd_at 852('!'32:, Crim. App.ng2); Ex parte`Goown, 816 S.N.Zd 383, 385('1ex.- Crim,__‘ App. 1991); Ex parte Ruseell, 738 S.W.2d 644, 646('1'ex._` Crim.App. 7 1986). ' ' In addressing ground number four and .,five,. the trial.court erred in,statin§c "The Court finds that the applicant's miranda end due process grounds for relief are not cognizable because they were litigated on direct appeal." (See; r!emorandxm\/Finding, ppc 1)¢ Applicant's Traverse To "I‘he Trial court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground four and five be denied based upon the trial court's finding that: _. ' . 4 ~ "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (Swz D£enprand\m / Finding, pp.l) ' Applicant maintains that his claim presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected tc procedural bar, 4 because his claims now before the court are fundamental constitutional claims that _, are based upon new theories that were not presented on direct appeal. Ex parte Good- '~ man, 816 S.de 383, 385(Tex. Crim. App. 1991); Edc parte Russell, 738 S.W.2d 644('I'ex Crim. App.1986), Ex parte Schuessler, 846 S.W.2d at 852('Iex. Crim. App. 1992) The law is clear, although habeas corpus is traditionally;§~f ~!:.unavailable to review matters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutin rights may be raised. Ex parte Schuss§er, 846 S.W.2d at 852 ('I'ex. Crim. App. 1992)(granting relief due to lack of jurisdicti_on); Ex parteskussell, 738 S.W.2d 6_44'(Tex. Crim. App. 1986)(granting relief d'ue to improper admission of void prior conviction); }hc parte Bravo, 702 S. W. 2d 189(‘1‘ex Crim.App.1982)(granting relief do to the improper excusal of a veniremamber)z Ex parte Clark, 597 S.W.2d 760(Tex. ' Crim.App.`19‘79)(granting relief due to the trial court's failure to apply the law to . the facts of the case). ' Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that on direct'appeal Cotten argued that the trial 'j~`court erred in failing to suppress his first statment because it's procurenent violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38 22 of the 'Iexas Code of Criminal Procedure. (See; Opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated hi's Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warning" to him as requiredby Article 38.22 § 3(a)(2)ms, TexasCode of Criminal Procedure. (See: Memrand\m of law, pp.14). ' ` ` ` ` ' ' After cmpar_ing applicant's ground number four in his habeas corpus petition to applicant's claim number ane on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error l based upon a theory not alleged on direct appeal. Consequently, the trial court's finding that --»"applicant*s Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded back to the trial court for a new trial. Likewise; a` review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and l voluntarily made. (Seez opinion of the Eight Court of Appeal€i pp-B). However, a review of applicant's fifth §round for review on his habeas corpus petition shows that he alleged that -”Detective Anderson violated his due process right under the Fifth and Fourteenth Amandment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self~incrini noting statement against himself. (See: Applicant°s lmrandum of law,' pp.l?). ‘ ' l 21 In summary, after comparing applicant's ground number five in his habeas corpus ` petition to applicant's claim number two on his direct appeal it because clear that the claims are not the same because applicant is now presenting a constitutional issue _ of :;fundamental error based upon a theory not alleged on directli_"" appeal'. Consequently, Vthe trial court's finding that --"applicant's Miranda and due process grounds for re- ` lief are not cognizable because they were litigated on direct appeal"--amst be over- ' ruled and the case remanded back to the trial court for a new trial. ‘ ' ' ' Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment,hearing based upon grounds one, two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five~ Appli- ¢ cant So Moves The Court. l ' l kespectfully Submitted= YS§§¥EY<§°BR§€“ "°' 1_826716 2661 F.M.»' 2054 Tennessee Colony, Texas 75884 10 ‘~~s.e I¢ ' Matthew Cotten, Applicant, Pro se, do hereby certify that altrde land correct » copy ofllthis foregoing instrument has been served upon Steven W.l Conder-g Assistant ll maurice Ap'\-.¢')mey, 401 w. aeimp, sort _worcv. rees 76196-0201. accused on this 25th " day or February, 201s.j ' ' l ' l ~ " ' Sign; l _ 4 ` v Matthew C¢!tben NO. ~ l1826716 _ Applicant' Pro Ge‘»;..[~`_'.lf:"`~ ' _‘ 11