February 13, 2015
03-14-00681-CR
Cause No. 002368-c
Robert.Lee.Brown In The Third District Court
Applicant § Of Appeals
§
V.
§ OF
§
The State Of Texas
§ Austin/ Texas
Respondent §
Applicant's Memorandum In Support For DNA ,/received\
Testing Under Article 64.01 (a-1) and (b) FEB 1 3 2015
Tex. Code Crim. Froc.
THIRD COURT OF APPEALS
JEFFREY D. KYiF
To The Honorable Judge Of Said Court:
Comes Now, Robert.Lee.Brown, Applicant Pro-Se,in the above
3tyled and numbered cause do hereby file this Brief in support
for DMA Testing and memorandum in Law of support in accordance
with Article 64.01 (a-1) and (b) Tex. Code Crim. Proc. of Texas
Code Of Criminal Frocedure and would like to shuu the Court as
Jurisdiction
The Honorable Court has complete jurisdiction in accordance
with Article 64.01 (a-1) and (b) of the Texas Code of Criminal
Procedure.
Statement Of Facts
On May 10,2000, the applicant was sentenced and convicted for
aggravated robbery in whicn he was allegedly to have committed on
the dace of Sepceinber 29 or 30th of 1999. He then proceeded to
tight his case via direct appeal which was filed on January 29,2000
and it was affirmed on July 26,2000. Since that time the Applicant.
has taken his case unto the U.S. Supreme Court attacking hio conviction
with only the direct appeal that was filed or. his case and the doors
were closed to him the entire way. Finally, in January of 2009 the
applicant was able to get hold cf his Court Records and found out
there was more errors that should have been litigated via Habeas
Corpus. This is the third attempc to exhaust his remedies based on
actual innocence. This memorandum in Law of support has the necessary
argument and aucnorit.es that need to be litigated and the applicant
is also hope that actual innocence was never argued in his previous
writ because he did nun have the proper evidence that the records
1
reveals and therefore would like this opportunity to exhaust these
arguemeric before they are presented to the Federal Court.
The District Clerk of Travis County did therefore also deliberatley
withheld his previous application 0023-A for a five month period
before it was filed and that action caused the time limits to run
out to where the t'ederal Court time barred him from filing his Federal
writ. Even though the applicant realizes that this application and
brief in support can be consLrued as a successive application but the
motion for leave is also filed to ask the permission of this Honorable
Court m order to prove actuai innocence and deceptive police tactics
and prejudice on behalf of the prosecution in charge of the case and
the misconduct of the tribunal for then allowing such miscarriage cf
justice to i_ake place. It is the duty of the Trial Court to seek the
truth and to right any wrongs that have taker, place in the judicial
system and the applicant believes that this application and brief in
support will bring the needed attention to warrant an evidentiary
hearing in order for justice to be done.
Discussion
(In Darrell V. State, 2013 Tx. App. Lx.13237)
An order denying DNA Testing is an "Appealable order" under rule
25.2(a) (2). Guitierrez V. State,307 Sw3d 318, 321 (Tx. Cr. App.2010)
However, the decision to deny appointed counsel is not . Id at
323 ("Such an=appeal-is prematurely ^motion for appointed Counsel
is a preliminary matter that precedes the initiation of Chapter 64
proceedings.")
iDrnun #
Robert ."LeeJBrown 1 Q070 1VI
927914 ' -*
Eastham Unit
2665 Prison Rd. #1
LoveLady, Texas
75851
PRAYER
WhereforeiPremises Considered,Applicant humbly prays that
this Honorable Court will grant the Motion For Successive Petition
and allow him the one and only opportunity to prove that he has
the Evidence in this application and in the Memorandum to show
that he has standing to be granted relief and that a Evidentiary
Hearing is the only way that he can proceed to show his innocence.
Respectfully Submitted,
ifo£e@t^£i£'>^6^rT#lrflli
TDCJ—CID, Applicant Pro—Se
Eastham Unit
2665 Prison Road #1
Lovelady,Texas 75851
CERTIFICATE OF SERVICE
I,Robert Lee Brown/Applicant Pro—Se,hereby certify that the
forgoing information is true and correct,and a copy is being mailed
to the District Court Clerk of Travis County at P.O.Box 1748,
Austin ,Tx.76767 . Signed on this 7 day of February ,2015.
Respectfully Submitted;
Robert Lee Brown #927915
Applicant Pro—Se—_
TDCJ—CID
Eastham Unit
2665 Prison Road #1
Lovelady,Texas 75851
Cause no. 00-2368-c
Ex Parte § IN THE COURT
§
§ OF
§
Robert Lee Brown § AUSTIN, TEXAS
APPLICANT'S MOTION FOR LEAVE OF COURT
TO FILE SUCCESSIVE APPLICATION FOR AN
APPLICATION FOR WRIT OF HABEAS CORPUS IN
ACCORDANCE WITH ARTICLE 11.07 §4(A)(1(T)
OF THE TEXAS CODE OF CRIMINAL PROCEDURE.
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, Robert Lee Brown herein known as Applicant, do hereby file
this Motion For Leave to File Successive Application for an Application for
Writ of Habeas Corpus in Accordance with Article 11.07 §4(a)(l)(2) of the
Texas Code of Criminal Procedure and hereby would like to show the Court
as follows:
JURISDICTION
This Court holds ultimate jurisdiction in accordance with Art. 11.07 of
T.C.C.P.
CONFINEMENT
This Applicant is being held illegally by Nathaniel Quarterman, Director
of the Texas Department of Criminal Justice, Eastham Unit, Institutional
Division, Lovelady, Texas.
ARGUMENT FOR SUCCESSIVE APPLICATION
The Texas Code of Criminal Procedure Article 11.07 §4(a)(l)(2) state
that "If a subsequent application for Writ of Habeas Corpus is filed after
final dispostition of an initial application challenging the same conviction,
a court may not consider the merits of or grant relief based on the subsequent
application unless application contains sufficient specific facts that
establishes the following:
(1) the current claims and issues have not been and could not have been
/
presented previously in anoriginal application or in a previously considered
application filed under this article becuase the factual or legal basis for
the claim was unavailable on the date applicant filed the previous application;
or
(2) by a proponderence of the evidence, but for violation of the United
States Constitution no rational juror could have found the applicant guilty
beyond a reasonable doubt.
When the first application was filed the Applicant had no scientific
knowledge of working law and only had the appellate brief provided him by
his appellate attorney who only argued one issue about denying the Motion
for Suppression of evidence presented by the State.
Brown requested many times through coresspondence and having his family
also contact his attorney on appeal about giving him a copy of his Clerk's
Records and Court Reporter's records and Exhibits presented and she refused
any and all attempts at contact.
The record clearly shows that his trial and appellate counsel were court
appointed and he did not have the funds to retain counsel or purchase the
records until January of this Year of ,2009.
Brown avers that he is not educated in the technical science of the
law and neither does he have assistance from any trained, skilled attorney
or the many accoutrements available to attorneys for free-world pro-se litigant
in order to help him to present all errors that this future application will
have included within that needs to be litigated to satisfy the exhaustion
requirement before these errors are presented to the Federal District Court.
Therefore, Brown contends that he should not be held to the same Strinqent
standards of pleading or research as an educated attorney in the preperation
and presentation of his Pro-Se application for writ of Habeas Corpus. See
Haines v. Kerner, 92 S.Ct. 594, 595 (1972); Pete v. Metcalf, 8 F.3d 217 (5th
Cir. 1993).
ERRORS PRESENTED IN ORIGINAL HABEAS
Defendant's Motion to Supress In-Court identification by victim was denied.
The victim said his attacker was between 18-20 years old, Applicant was 32
years of age.
Illegal Sentence, void indictment.
Denial of effective assistance of counsel,
These errors were not substantiated by any evidence from the record
2.
and the original application was dismissed without prejudice and Applicant
believes that now that he has a complete copy of his trial records he can
present the following errors and show by the proponderence of the evidence
that a reasonable juror would not have found him guilty beyond a reasonable
doubt.
ERRORS APPLICANT WANTS TO PRESENT
Perjured Testimony of Sonja Lee Holder and Pete Arrevalo
The evidence was legally and factually insufficient to support the conviction.
Actual Innocence
Police fabrication of out-of-court photo line up identification.
Prosecutorial Misconduct.
Conspiratorial actions of the District Clerk of taking 5\ months to file
original application.
Ineffective Assistance of Counsel
(a) failed to object to accomplice witness testimony.
(b) failed to develop a defense.
(c) failed to object to perjured testimony
(d) failed to request for balistics, fingerprint, DNA experts to test the
State's exhibit 22.
(e) failed to request any instructions on any defensive issues raised by the
evidence and testimony.
(f) failed to properly preserve error.
(g) Failed to investigate or interview any of the State's witnesses,
(h) failed to give adequate representation.
Ineffective Assistance of Appellate Counsel
(a) failed to present all the potential errors that could give the Applicant
a favorable chance at relief.
CONCLUSION
Brown avers and contends that this successive writ will not be considered
to be an abuse of writ if he can show cause for raising a new point of error
after one writ of Habeas Corpus has already been filed. Russell v. Collins,
944 F.2d 202, 205 (5th Cir. 1991). Good Cause exists for hearing successive
application of Writ of Habeas Corpus where failure of counsel to object to
admission of testimony at trial, "is not waiver of error" because constitutional
defect has not been identified after trial; when such defect is identified
after trial, and its status is applied retroactively, applicant "should"
be allowed to raise issues in his subsequent application. Ex Parte Baker,
879 S.W.2d 889, 892-93 (Tex.Crim.App.1994).
Texas law requires that, before a conviction may rest upon an accomplice
witness's testimony, that testimony must be corroborated by independent
3.
evidence tending to connect the accused with the crime. This accomplice witness
rule creates a statutorily imposed review and is not derived from federal
or state constitutional principles that define the legal anf factual standards
of sufficiency.
To determine the sufficiency of the corroboration, regardless of whether
an objection was made, the Court must eliminate the testimony of the accomplice
witness and examine the testimony of the other witness who did confess to
trading sexual favors for drugs and money with a prostitute since she was
the age of fifteen. See Taylor v. State, 7 S.W.3d 732, 737 (Tex.App.-Houston[14]
dist. 1999)j Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007).
The underlying premise is that such a witness is a "discredited witness"
and that "the testimony of a accomplice witness is also to be scrutinized
not only because of any interest she might have, but because her testimony
is from a corrupt source. Beathard v. State, 767 S.W.2d 423, 429 (Tex.Crim.App.
1989); Simmons v. State, 205 S.W.3d 65, 72 (Tex.App.-Fort Worth 2006).
In determining the strenqth of the particular item of non-accomplice
evidence, we must examine:
(1) its reliability or believability, and
(2) the strength of its tendency to connect the Applicant to the crime.
Jones v. State, 195 S.W.3d 279, 289-90 (Tex.App.-Fort Worth 2006).
The Supreme Court has clarified the abuse of the writ. The State has
the burden to plead abuse. This burden is satisfied if the State notes the
Applicant's prior writ history with clarity and particularity, identifies
claims which appear for the first time in the later application, and alleges
abuse by the Applicant. But, for the Applicant to disporve abuse of writ
he must show why the claim was not raised in the first application, this
would include claims that he was impeded by some objective factor external
to his defense, such as the availability of his records which is a reasonable
unavailability of the factual basis of the claims. The applicant will show
that he was actually prejudiced by the errors of which he complains. And
he avers that if he cannot satisfy both the cause and prejudice requirement
is not entitled to a evidentiary hearing to develop the claim. Even so,
he hopes that the Court will excuse his failure to timely raise the claim
if he can show that a fundamental miscarriage of justice "the conviction
of a innocent person" will result by failure to entertain the claim.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Brown humbly prays that this Honorable Court
will consider his argument in this Motion and grant it so that he can show that
there has been a miscarriage, of justice ofbeinq an innocent person incarcerated
by false and misleading testimony, prosecutorial misconduct, judicial abuse of
discretion, etc. These actions created an actual and substantive disadvantage
to the Applicant.
Signed and executed on this £ ff day of /l/ftl u / 2009.
tfully Submitted,
Robert
Applicant Pro-Se
TDCJ-CID
Eastham Unit
2665 Prison Road #1
Lovelady, Texas 75851
CERTIFICATE OF SERVICE
I, Robert Lee Brown, Applicant Pro-Se, do hereby certify that the foregoing
is true and correct and a copy is being mailed to the District Clerk Amalia
Rodrigues-Mendoza of Travis County, Texas at P.O. Box 1748, Austin, Texas 78767.
Signed and executed on this 2.8 day of /n6Lu 2009.
Brown #927914
Applicant Pro-Se
5.
Case No.
(The Clerk of the convicting court will fill this line in.)
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Robert Lee Brown
DATE OF BIRTH: November 13, 1967
PLACE OF CONFINEMENT: R^t-ham Tinir
TDCJ-CID NUMBER: 927914 SID NUMBER: 03447774
(1) This application concerns (check all that apply):
53 a conviction a parole
53 a sentence • mandatory supervision
a time credit a out-of-time appeal or petition for
discretionary review
(2) What district court entered the judgment of the conviction you want relief from?
(Include the court number and county.)
167th District Court, Travis County, Austin, Texas
(3) What was the case number in the trial court?
002368
(4) What was the name of the trial judge?
Honorable Michael Lynch
Revised: March 5. 2007
Misc. Docket No. 06-103 Page 2 of 13 ATC 1! .07 (Rev. 03-05-07)
(5) Were you represented by counsel? If yes, provide the attorney's name:
Hon. Charles Hinneman
(6) What was the date that the judgment was entered?
May 10, 2000
(7) For what offense were you convicted and what was the sentence?
Aggravated Robbery w/Deadly Weapon
(8) If you were sentenced on more than one count of an indictment in the same court at
the same time, what counts were you convicted of and what was the sentence in each
count?
N/A
(9) What was the plea you entered? (Check one.)
• guilty-open plea o guilty-plea bargain
ex not guilty • nolo contendere/no contest
If you entered different pleas to counts in a multi-count indictment, please explain:
N/A
(10) What kind of trial did you have?
a no jury a jury for guilt and punishment
cs jury for guilt, judge for punishment
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?
N/A
(12) Did you appeal from the judgment of conviction?
H yes a no
Misc. Docket No. 06-103 Page 3 of 13 ATC 11.07 (Rev. 03-05-07)
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? Third Court of Appeals
(B) What was the case number? 3-00-00534-CR
(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:
Hon. Linda Icenhauer-Ramirez
(D) What was the decision and the date of the decision? July 26, 2001
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
a yes 6a no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? N/A
(B) What was the decision and the date of the decision? rc/a
(14) Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction!
Dt yes d no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals' writ number? Q02368-A, B.
(B) What was the decision and the date of the decision? Denied, sgpt-Pinhgr n. 2002
(C) Please identify the reason that the current claims were not presented and
could not have been presented on your previous application.
It was not until January, 2009, that the Applicant was able to
purchase his court records in order to fully attack all claims
Misc. Docket No. 06-103 Page 4 of 13 ATC 11.07 (Rev. 03-05-07)
and all applicant had to go on in the past was the direct appeal
and it only attacked one issue-
(15) Do you currently have any petition or appeal pending in any other state or federal
court?
d yes a no
If you answered yes, please provide the name of the court and the case number:
n/a
(16) If you are presenting a claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction, including state jail felonies)
d yes a no
If you answered yes, answer the following questions:
(A) What date did you present the claim? N/A
(B) Did you receive a decision and, if yes, what was the date of the decision?
N/A
If you answered no, please explain why you have not submitted your claim:
N/A
(17) Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. Ifyour grounds and briefsummary ofthe facts have not been
presented on the form application, the Court will not consider your grounds.
Misc. Docket No. 06-103 Page5 of ]3 ATC 11.07 (Rev.03-05-07)
GROUND ONE: THE APPLICANT CONTENDS THAT NON-ACCOMPLICE EVIDENCE WAS INSUFFICIENT
TO CORROBORATE THE ACCOMPLICE WITNESS TESTIMONY AND CONNECT THE APPLICANT
TO THE OFFENSE, RESULTING IN INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION.
FACTS SUPPORTING GROUND ONE:
Pete Arevalo the victim testified that Sonya Holder brought three black males
to his home and robbed him. He testified that the black male who had the gun and
pistol whipped him was a light-skinned black male between 18 to 20 years of age
and there was no mention of beards and mustaches during his original description
of his assailants. Th applicant is very dark skinned and he wore a beard and a
mustache. The photo spread used for the line-up was overexposed to show that
the applicant was dark skinned. Also, the gun that was supposedly used left the
home the same way it came in, as testified by Sonya Holder. But, the victim was
able to find pieces of a gun in his bed, on the floor of his bedroom, and under
the bed in which was already documented by CSI and no such evidence was then
found. But the evidence was in his bedroom for three days before he brought it
to the investigating detective. See Brief in Support pages 1-14.
Misc. Docket No. 06-103 Page 7 of13 ATC 11.07 (Rev. 03-05-07)
GROUND TWO: THE APPLICANT CONTENDS THAT THE TRIAL COURT ERRED IN NO GIVING
A CORRECT CHARGE TO THE JURY WHEN IT FAILED TO STATE WHETHER ACCOMPLICE WAS
A WITNESS AS A MATTER OF FACT OR LAW.
FACTS SUPPORTING GROUND TWO:
On the court's charge to the jury before deliberation the charge is to be
hypotheticaliy correct in its writting before the jury can make a determination
on guilt or innocence. The charge failed to explain the accomplice as a matter
of law or as an accomplice as a matter of fact. Pages 6 and 7 of the court's
charge only stated that the accomplice was in fact only as an accomplice
and that caused a significant harm to the applicant in recievinq a fair trial.
See Brief in Support pages 14-17.
Misc. Docket No. 06-103 Page 8 of13 ATC 11.07 (Rev. 03-05-07)
GROUND THREE: THE APPLICANT CONTENDS THAT THE EVIDENCE PRESENTED VJAS MANUFACTURED
AND WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE CONVICTION IN ACCORDANCE WITH
THE JACKSON V. VIRGINIA STANDARD.
FACTS SUPPORTING GROUND THREE:
Th<» victim testified that he was beaten with a western style .22 revolver
with a pearl handle in which the attackers were trying to sell to him- The
gun was allegedly broken to pieces durinq the attack. The accomplice Sonya
Holder testified that the gun came out alonq with the attackers but.
three or four days later the victim brouqht pieces of a qun and in fact
after examination of the evidence the trial court wil see that the pieces
is parts from several different weapons in which shows the deception and the
manufactured evidence is insufficient to support the conviction.
See Brief in Support 17-21.
Misc. Docket No. 06-103 Page 9 of 13 ATC 11.07(Rev. 03-05-07)
GROUND FOUR: THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO OBTAIN
A CONVICTION BASED UPON PERJURED AND FALSE TESTIMONY AND A FAILURE TO CORRECT
THE PERJURED AND FALSE TESTIMONY AFTER IT WAS GIVEN VIOLATED THE APPLICANT'S
FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO CONSTITUTIONAL DUE PROCESS OF LAW.
FACTS SUPPORTING GROUND FOUR:
The applicant contends that the record shows that there was false and perjured
testimony qiven durinq testimony presented by the State and that the victim and
the accomplice witness conived the testimony together to make sure that the
accused would take the charqe and be sentenced to prison due to her venqeful feelinqs
and spite towars the applicant. The records show that the victim visited the
accomplice Sonva Holder durinq her incarceration for this robbery aqainst him.
See Brief in Support pages 21-28.
Misc. Docket No. 06-103 Page 10 of 13 ATC 11.07 (Rev. 03-05-07)
GROUND: FIVE: THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO USE LEADING
QUESTIONS DURING THE COMPLETE TRIAL PROCESS IN WHICH HELPED TO OBTAIN THE
CONVICTION.
FACTS SUPPORTING GROUND:
The State was permitted to use leadinq question in a especially egreqrious manner
that was throughout the entire direct examinations of their witnesses until the
defense counsel was then forced to object. See Brief in Support pages 28-31.
WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
10
Misc. Docket No. 06-103 Page 11 of 13 ATC 11.07(Rev. 03-05-07)
rnnilNirSTX- THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE
STaS TO PRESET eSnEQUS OFFENSE TESTIMONY AND FAILED TO PRESENT EVIDENCE
THAT THE JURY COULD FIND BEYOND AREASONABLE DOUBT THAT THE APPLICANT CUMMirrsD
THE SAID OFFENSE OF AN EXTRANEOUS BAD ACT.
FACTS SUPPORTING GROUND;
«*> .nnHrant h-~h-a that the n^fr.ionv of extraneous acts were not admissible
durinq the guilt and innocence of the trial. Sonya Holder testified about drug
dealing and threats of aviolent nature toward her after the commission of the
offense. The applicant is entitled to only be tried for the crime in which he
was charge and not for being a criminal in general. See Brief of Support pages
31-37.
GROUND2 SEVEN: THE APPLICANT CONTENDS THAT HIS CONVICTION IS VOID WHEN THE
PROSECUTION PROMISED THE ACCOMPLICE-WITNESS SOMETHING OF VALUE FOR HER
INCULPATORY TESTIMONY AGAINST THE APPLICANT IN VIOLATION OF 18 U.S.C. §201(0(2).
FACTS SUPPORTING GROUNDS
The applicant contends that the testimony of Sonva Holder was purchased with a
promise of Tenancy bv r^H gvino nrnhaHon for the crime and tt»f hff fllso WQS
the only attacker that was convicted for the crime charged. See Brief in Support
pages 37-39.
<-uniIlMn* EIGHT- THE APPLICANT CONTENDS THAT DUE TO THE DEFICIENT PERFORMANCE
0GFRTOlJL CoS^'HE WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE
WHICH CAUSED AN ACTUAL AND SUBSTANTIVE DISADVANTAGE TO THE APPLICANT IN RECIEVING
A FAIR TRIAL. ,
FACTS SUPPORTING GROUND;
ThP trial counsel failed in his duty to provide adguate assistance in helping
client in recievinq a fair trial. Failure to call expert witness, failed to call
exculpatory witnesses,failed to object to extraneous offense testimony, failed
to preserve error, failed to request specific instruction and object to the courts
charge. See Breif in Support pages 39-50. _
^t>™txii>» MTNF- THP APPLICANT CONTENDS THAT HE WAS DENIED EFFECTIVE ASSISTANCE
0GFR£uS KiREC? APPEA^R^AILUpS TO LITIGATE ALL AVAILABLE CLAIMS IN THE
VIOLATION OF THfcl SIXTH AMLNDMW11 OF THE U.S. OJNSi'liUllUN.
FACTS SUPPORTING GROUND; . ..
The appellate attorney Honorable Linda Icenhauer-Rameriz failed to litigate all
the available claims on direct appeal- See Brief in Support pages 50-53.
PROIJND2 TEN: THE APLICANT CONTENDS THAT FACTUAL INNOCENCE IS AN EXCEPTION TO
TOE ^EDPA'S ONE yIrSTATUTE OF LIMITATIONS AND/OR IS AGATEWAY FOR REVIEW OF THE
APPLICANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND EVIDENCE IS INSUFFICIENT
TO ESTABLISH THE REQUISITE FINDING OF GUILT IN THIS CASE.
FACTS SUPPORTING GROUND; .
Since the federal court refused to entertain his writ due to the time bar issue
due to the actions of the district court clerk in Travis County for not filing
his application when it was recieved he was penalized by that 5 month interval.
Along with the ineffective assistance of counsel and with the alibi witnesses
this satifies the cause and prejudice standard to have this issue heard in court
and the applicant is satifying the exhaustion requirement before he can go to
federal courts. See Brief in Support pages 53-70.
rROUND' TWELVE: THE APPLICANT CONTENDS THAT THE STATE FAILED TO OBJECT TO THE
COURT'S CHARGE THEREBY FAILED TO PRESERVE ERROR FOR APPELLATE REVIEW WHICH THEN
SUSTAINS THE CONVICTION IN VIOLATION OF APPLICANT'S DUE PROCESS RIGHT OF LAW AND
DUE COURSE OF LAW RIGHTS AND DENIED HIM A FAIR TRIAL. ____
FACTS SUPPORTING GROUND;
ThP avprs ^h^t- <-hP hypol-h^H rally rvv-rprf inrv charap it had written Wflfl PTTQnPOUS
and that the State failed to object as well as the defense- See Brief in Support
pages 73-76.
GROUNDS TWELVE: THE APPLICANT CONTENDS THAT THE APPELLATE COURT MISAPPLIED
THE STANDARDS OF NEIL V. BIGGERS, IN THE AFFIRAMTION OF THE APPELLATE REVIEW.
FACTS SUPPORTING GROUND;
The applicant contends that the appellate court did not follow all five factors
of the SuorPiriP Court case as: stated", aboveiin.the determination of the use of
the use of the photo line-uo of the in-court identification- See Brief in
Support pages 70-73-
VERIFICATION
(Complete EITHER the "oath before a notary public" OR the "inmate'sdeclaration.")
OATH BEFORE NOTARY PUBLIC
STATE OF TEXAS, COUNTY OF .
, BEING FIRST DULY SWORN, UNDER OATH, SAYS:
THAT HE/SHE IS THE APPLICANT IN THIS ACTION AND KNOWS THE CONTENT OF
THE ABOVE APPLICATION AND ACCORDING TO APPLICANT'S BELIEF, THE FACTS
STATED IN THE APPLICATION ARE TRUE.
Signature of Applicant
SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF
Signature of Notary Public
INMATE'S DECLARATION
I, Robert Lee Brown ^ BEING PRESENTLY
INCARCERATED IN Eastham Unit. Lovelady Texas t DECLARE UNDER
PENALTY OF PERJURY THAT, ACCORDING TO MY BELIEF, THE FACTS STATED IN
THE APPLICATION ARE TRUE AND CORRECT.
SIGNED ON M<3u 9% 2009
11
Misc. Docket No. 06-103 Page 12 of 13 ATC 11.07 (Rev. 03-05-07)
APPENDIX
[EXHIBIT A]
%
?r-x
[EXHIBIT B]
TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION
REASON FOR REQUEST: (Please check one)
PLEASE ABIDE BY THE FOLLOWING CHANNELS OF COMMUNICATION. THIS WILL SAVE TIME, GET YOUR REQUEST
TO THE PROPER PERSON, AND GET AN ANSWER TO YOU MORE QUICKLY.
1. I_J Unit Assignment, Transfer (Chairman o! Classified!.-•<>. 5. L_.' Visiting List (Assi. Director of Clasideation. Administra
Administration Building) tion B\j'kiing}
2. D RestoratiohsOf Lost overtime (Un if approved, it 6. !'_J Parole requirements and related information (Un't Parole
will be forwarded to the ffsciplinary Commil'vo) Counselor
3. l~J Request for Promopef^Jn Class or to Trusty Class (Unit 7. L_! Inmate Pip^Record (Request for copy of record, intor-
Warden-if approved, wnNie fonva.deJ to the Director ul maiipi^onparbje eligibility, discharge date, detainers-Unit
Classificatic
^ministration)
1—' „,
4. l_J Cle, , -Pardon, parole, early out-mandatory supen-ision 8. L_i Personal Interview wifaa representative ofan outside agen
of Pardons and Paroles. 86 W Shoal Creek Blvd. cy [Tieatment Division, Administration Building)
Austin, Texas 78711)
SI
>
TO \/*J/>^s/M&?S.
-<$G
ADDRESS: _p^2ga^7 /,^/X
[EXHIBIT B PG. 2]
SUBJECT: State briefly the problem on which you desire assistance.
l/^^
Living Quarters: ^~- ?r?/-7~ Work Assignment: A/j»t^ S/7*Ar?j,
DISPOSITION: (Inmate will not write in this space)
[EXHIBIT C]
TOt Troy C. Bennet Jr.
Clerk Of Criminal Appeals
In And For State Of Texas
Capitol Station
Austin* Texas 78711
REt Robert Lee Brown, Cause Humbert 03-99-00534-CR & Trial
Court No.: 00-2358
STYLEt Robert Lee Brown, Applicant
VS.
The State Of Texas
DATEs March 21, 2002
Dear Clerks
On January 29, 2002 I mailed an original writ of habeas corpus
with a copy for the trial clerk to stamp or file mark ray copy and
return it to me. As of this date I have not received my copy of
the 11.07 nor any notice that the trial clerk forwarded the original
to your office. This brings the totar .lays to 59 days. Please advise
me whether you have received the original 11.07 and the date you
filed said writ. If you have not received the 11.07 then please
write the trial clerk for her to send it to you and forward my
copy file marked to me.
Sincerely,
Robert Lee Brown, Counsel Pro Se
TDCJ-ID.,NO.927914
Jordan Unit
1992 Hilton Road
Pampa, Texas 79065-9696
CCs'Ss Trial Judge, Michael P. Lynch
167TH Judicial District Court
Travis County Courthouse
P.O. Box 1748
Austin, Texas 78767
RLB/lwws file
[EXHIBIT D]
Robert Lee Brown #927914
Jordan Unit
1992 Hilton Rd.
Pampa/ TX. 79065
March 27, 2002
Amalia Rodriguez-Mendoza
District Clerk
Travis County
P.O. Box 1748
Austin, Texas 78767
RE: Ex Parte Robert Lee Brown Cause No. 002368
Dear Mrs. Mendoza,
Please be advised that it has been 48 days since I have mailed you my
11.07 Application for Habeas Corpus in the above caase no. I am aware that your
Court recieved the Writ no later than February 4th of this year, by the latest
I should have had a response from the State by no later than February 18, 2002.
And I should have heard from the Court*s Recoiranendation no later than March 13,
2002. This is to inform you that I have not recieved neither one and that is
including the number of the Writ once it was filed. Could you please inform me
of the status of the Writ. I am thanking you in advance for your cooperation
on this matter.
tted,
^Roberfe^tee B^bwhT927914
Applicant Pro-Se.
CC: File
[EXHIBIT E]
Robert Lee Brown §927194
Jordan Unit
1992 Hilton Rd.
Pamas, TX. 79065
Date: April 10, 2002.
District Clerk
Amalia Rodriguez-Mendoza
Travis County
P.O. Box 1748
Austin, TX..78767
RE: Ex Parte Robert Lee Brown Cause No. 002368
Dear Mrs. Mendoza,
Please be advised that this is my second request for the cause no., and the
status on my 11.07 Writ of Habeas Corpus. I have still not recieved a response
from your office. I would like to be informed of the Status of the 11.07. I am
waiting patiently for a response from you. I want to make sure that I will not
get time barred from my Federal Petition.
CC: FILE
[EXHIBIT F]
Robert Lee Brown §927194
Jordan Unit
1992 Hilton Rd.
Pampa, TX. 79065
Date: May 1, 2002.
Travis County District Clerk
Araalia Rodriguez-Mendoza
P.O. Box 1748
Austin, TX. 78767
RE: Ex Parte Brown Cause No. 002368
Dear Mrs. Mendoza,
Please be advised that this is my 3rd notice requesting any and all status
on ray 11.07 Writ of Habeas Coprus. Why is it taking so long to have it filed?
Could you please let me know? The Writ was mailed from my unit on the 27th of
January, surely it does not take this long to put a file stamp on it and allow
the Court to rule on it?
CC: File
[EXHIBIT G]
COUNTY OF iKAViS
STATE OF TEXAS
AMALIA RODRIGUEZ-MENDOZA P.O. Box 1748
District Clerk Austin, Texas 78767
Tuesday, June 04,2002
BROWN.ROBERT LEE
927914
K-201-B
1992 HILTON RD.
PAMPA, TEXAS 79065
RE: Application for Post Conviction Writ of Habeas Corpus
Cause Number: 002368-A
Ex Parte: BROWN.ROBERT LEE
In the 167TH Judicial District Court of Travis County, Texas
Dear Sir:
Your application for post conviction writ of habeas corpus has been received and filed on
06/04/2002, and bears the above cause number.
Acopy of your application for post conviction writ of habeas corpus has been forwarded to the
District Attorney of Travis County, Texas.
Respectfully,
AMALIA RODRIGUEZ-MENDOZA
District Clerk, Travis County, Texas
Deputy
copy to: District Attorney, Travis County, P.O. Box 1748, Austin, TX 78767
[EXHIBIT H]
Robert Lee Brown §927194
Jordan Unit
1992 Hilton Rd.
Pampa, TX. 79065
Date: June 10, 2002
Travis County District Clerk
Amalia Rodrigues-Mendoza
P.O. Box 1748
Austin, TX. 78767
RE: Cause no. 002368-A
Dear Mrs. Mendoza,
I thank you for your response to my letter dated May 1, 2002. Thank you for
letting me know the status on my Writ. I have but one question? It took 124 days
from the time it left my unit that my Writ was file stamped, will and how will
this affect my Federal time clock for my §2254 Petition?
CC: FILE
[EXHIBIT I]
CRfl-MvJfcA -3VJSTVCJC OTITICR
PoBox/7^£ .TO*? v>. JlTM
".3V CffSO&rtffNG, VoRTT .
".2 5 (WH« PjCNkUY roRt5riOQ£>^M6j WRIT
11.6.0
D.A. AOr, RcwajlD'D, <£*ARt,£7 *U CESnttcT cou^X *wd i,o.^j«/-f
W.T, G>u r-« £vj? i'wq ro GXcepr t*\u VvJr'iT o-V W^be v/okl«'o*» CC.P.
vjKo*a a. V^r' t a VH<*.b«2 VIrv ^ lNO, i ^*eKj
vi*oJ«-M pwr30«rji li c.c,?, I.oO. THIS _TS MQTTkOC,
Ks -*^a! «w,+U-<. "3>OHs o\ *3^V^-
O&tW, .J.OOA, V-jKicN v.jc« s. Or^s tx ViftfcJS'icvu .
KirJ. /v1£NDO£.A, <'-» »fv v/'o/«^.'ot>» ^^ PfcNMi CODC 3?, /o
TA^P/TA.3 MG> VmITM GOV/i RsN r^jCNT a^jl RCcorO *, P. C. s?. /o
ft.O^/W, CO/ 0. X reofved uia-r«pU,-+k< Oi*TKlCJ C0U«'ig RK, *o«- frmft M nn<. u*4'. I rcc<>(Jt fu; n^U <4
-bi.«..i/\ iw> pro/-ai.> yi'ftlai.'nm-
^^IP," ,^"» — 3« <-- ft-
R-e i p*tHvi'K, bv aur^
R0(i£TRX JLC£ brown;
y^^cd Z&- '<$A&c*i i/U^ /&* 't*0?-
P^\\Pk xx -)^o^
DO.-W £X«cJgjjftw l/t.?MfL
[EXHIBIT J]
AMAL/A ROQRHkJ&L-MEJilOoZA flue, % su^x.
QfshU CLIerH. T%AU/s CouasJ*/
Aubi'*;,"Tex* s. KyJr'»*^ \
£t-P*rk KdBEKT L££ BOOM
v/
1UE STAT? OfTftAS
RE o Reyoo/jse chjJ S-U/vs of tfJrit of Habeas Corpus
hloco Come jKot>cs-+U* RrouJjJ To.aJ0ciMWt i%
ih rcfU^-l-* /At*/ ^duys hat> tpa^scJ s/Uce J" &UJ
ft\u ujtir <>4 llabzus. Corals. hlM3o*> -W 30* 3-**** 2rccfe.ucJ
yevr (LorrapoKfJc^c^ )MtrciuUJ Jo**- H} £«**. W sUjeJ Hiuf-
uoor- oMce kuo1»W r^oia/eJ z*^ posr Co/Ouioi'o^ con'l -of HoUts
Cor-pU&.O'J 4A/ ScJul*' £'Ve- t*0*>^ afaer 1 ma,1d tl- ool, J[ haJC KJO r
h£ui~d lOU r^potO$>C trx>r^- Kj^U Or 4Ke Oi'sin'ur J\tt<>''AJ&f &*> tdUt*~
okCUfo"> he, Or-4-Kc (^*^ AoA^.ttitcJv** 1i-t* *gk tTf /k- ^^
OnfriJ- LouH. ^ursuuJ ^o A/4 ».i>l Se*. 3.£, »oJ SecTT&X. 6^ 7^
TKc d/s. W> cJer-/C Wt»<, a djUf \t> inform, bppUcuiJr ol SucL u - -*«e G
[EXHIBIT K]
IN TVVf IblTk DI5TPACY CWKY
^ TRAVIS COUNTY TjC*/U
v GM^/C-^OO^Ikg'-A
iU-SPOMSS A^$ tiK&£h<>
Toxvte !AO\W.K&l£ ~SG>£ ^ $^«q covj«T-
K\*vvt\o>^eA a .s-ruKa a^d mukV'',
Klur* 1Q-H.tfl(\t\^^ I r«c/€v«J \x
(ayaXJJ*. RQT>&\(V>£z.-fv\£'NDO^-k} Ud yr* r 0* ^
vA<^ d«c\sifotf Mas* N\ad«4krov>*k Ux«^y e.w^ or «v«tt "fk-|SXR\CT COURTS
Pup^OkUtf 4oKrAj).*0 ^^cl.O,^€c Lt ^ecl.
X~!ve £>i£TfMcJ\ CL£AV V^^ a.^oAv). \o \v^^»orw\ ^plioavj" o^ ^uc^O,
Hk^oUov^Vja. iS 4qT<3 oK wn^V'vX^q, wW\wiHa wmji M r | I 0*^
(D ^«* ^>a>*«j«rU ^tV^AOoa,, X~ £(U II MraW Wv* TVUWIS CooW^i CL£fl%KS 0^K^To J^P^ f HQ £-£=££; <*^A
f99AHaTOK4 R to other proven facts, will be sufficient
corroboration. It is combined and cumulative weight of the evidence then
furnished by non-accomplice witnesses which supply the test. If by this
rule it appears on appeal that before the jury there was proof that
confirms the testimony of the accomplice witnesses to material facts
tending to connect the accused with the commission of the offense, the
is satisfied.
Walker, supra at 731; Edwards, supra at 632; Minor, supra at 429.
EACH CASE MUST BE CONSIDERED ON ITS OWN MERITS:
Despite the many articulations of the standard and its boundaries and
limits, "No precise rule can be laid down as to the amount of evidence that
is required to corroborate the testimony of an accoaiplice, so as to sustain
a conviction of the accused." Paulus, supra at 844. Each case must be consider
on its own facts and circumstances.
In sum, where the State relies upon an accomplice witness' testimony
to convict the accused for a particular offense, the accomplice witness'
testimony must be both material and must be corroborated by independent
evidence tending to connect the accused to the crime. As to whether the
evidence adduced is sufficient to corroborate testimony of the accomplice
witness, such must, of course, be decided on an ad hoc basis.
Holladay, supra at 200.
TENDENCY TO CONNECT SUFFICIENCY STANDARD:
"Tendency to connect" rather than rational sufficiency is the standard
[for corroboration of accomplice-witness testimony]: the corroborating evidence
need not be sufficiency enough by itself to establish guilt." Solomon, supra at
361; Cathey, supra at 462. "The accomplice witness rule is satisfied if there
is some non-accompiice evidence which tends to connect the accused to the
commission of the offense alleged in the indictment." Hernandez v. State,
939 S.W.2d 173, 176 (Tex.Crim.Apo.1997). Circumstances not individually to
corroborate accomplice witnesses testimony, may, when taken together, bre
such that "rational jurors could conclude" it tends to connect the accused
to the offense.
THE EVIDENCE IS INSUFFICIENT:
The sufficiency of the evidence must be measured against a "hypothetical-
correct jury charge." Cathey, supra at 463; Malik, supra at 240. If the jurors
had been instructed properly, they would have been instructed that if they
believed Sonya Holder was an accomplice as a matter of law in the offense
as that term had been defined for them, they could not convict on her testimony
unless it was corroborated by other non-accomplice testinrany. In the Court's
Charge to the jury they were instructed that Sonya Holder was just an accomplice
and as a result, the jury charge naming her as an accomplice was not correct.
Determining the strength of non-accomplice evidence requires examination
of (1) its reliability or believeability and (2) the strength of its tendency
to connect the Applicant to the crime. Herron, supra at 633(discussing issue
in alleged jury-gharge error context). The "reliability inquiry nay be satisfied
if: (1) there is non-accomplice evidence, and (2) there is no rational and
articulable basis for disregarding the non-accomplice evidence or finding
that it fails to connect the applicant to the offense."
THE RELIABILITY INQUIRY
The Supreme Court set out five nonexclusive factors to be used to assess
reliability testimony. Testimony is considered to be reliable If the totality
of the circumstances reveals no substantial likelihood misidentification despite
a suggestive pre-trial procedure.
(1) The opportunity of the witness to view the criminal at the time of the
crime.
The victim described one robber as an 18 to 20 year old light skinned
black male. He told police that the light skinned black male hit him in the
head with the pistol and when the victim grabbed his shotgun, the light skinned
black male took the shotgun away from him and left with it. The victim never-
described any of the assailants as having a beard or a mustache. (RR4: 93-
110, 117-121). Detective Gay testified that the victim described his attackers
as (1) a young male, 18 to 22, light-skinned, who initially beat him witii
the pistol and then took the shotgun from him and left with it; and (2) a
darker skinned black male. Gay testified that the victim told him that lie
did not get a good look at the second individual and did not feel like he
coould identify him- However, he knew that the second individual was very
dark. (RR4: 170-172) On cross-examination, Detective Gay also admitted that
Applicant is very dark skinned arid at the time of trial had a full mustache
and beard. (RR4: 172).
10
During his testimony, the victim identified Applicant as the individual
who had the pistol during the robbery, (even after he testified that the
one who beat him and had the pistol was light-skinned, 18 to 22 years of age,
when in fact the Applicant was dark-skinned and 32 years of age when this
crime was committed.)
In the liqht of the victim's vague and general description of the person
who beat him with the pistol and fought with him over the shotgun as light-
skinned and from the age 18 to 20. Every witness, including Detective Gay
agreed that the Applicant is a very dark-skinned individual. Detective Gay
even testified that the photograph was not an accurate portrayal of Applicant's
true appearance in terms of skin color. The accomplice witness, Sonya Holder,
testified that not only was Applicant very dark-skinned but he was "thirty-
something."
(2) The witness's degree of attention.
The photo that the Detective used for identification of the Applicant
as a light-skinned individual was just plain false, the trial court never
made any specific findings regarding the victim's opportunity to view his
assailant. However the record does show that the victim and the light-skinned
individual struggled for several minutes. However it must be noted that much
of the time during the struggle was spent wrestling over a shotgun common
sense indicates that the victim was looking at the gun during this time and
not at the assailant's face. Had he been paying more attention, he would
have been able to give more detail.
The victim testified in court about the identification of the Applicant.
I will never forget that nan. Whenever he released—when he's released, if
he should be released, he will remember me. They gave me a beatiny, a beating
that I will never forget. This is not even human, to beat a person like that,
break their teeth and 48 stitches and my body was bruised up. You think I'm
going to forget that man? I will never forget that man. ...I still have
him in my head— photocopy of him in my head. (RR4: 234).
Yet, although the victim testified that the Applicant as his light-
skinned young attacker, the evidence show that in fact the victim was able
to give no details of the assailant's description. He did not recall if the
attacker had facial hair (the Applicant has worn a full mustache and beard
for some time); he could not describe any facial features; and he could not
give a clothing description- But, yet he has a photocopy of him in his head.
11
(3) Accuracy of the victim's prior description of the criminal.
When initially asked to describe his assailant's by the officers
who responded to the initial robbery call, the victim could only state that
"there was a female that he knew and that there were three black males that
accompanied her." (RR4: 101) Later at the hospital, the victim then described
one of the robbers specifically "[a] a black male, 13 to 20 years of age,
light skinned. (RR4: 106-108) He made no mention of the assailant having
a beard or mustache and he could not describe any of the clothing worn by
any of the three men. (RR4: 106) The victim's vague verbal description of
the light-skinned attacker never changed. (RR4: 170) He did tell Detective
Gay that he did not think he could recognize the dark-skinned man. (RR4:
172) Clearly, the victim's description of his main attacker was so vague and
general that it could have applied to thousands of people. Yet, he had a
photocopy of him in his head. (RR4: 234).
(4) The level of certainty demonstrated by the victim.
The victim appeared to be certain of his identification of applicant
as the light-skinned attacker after he was shown the photographic lineup/
his story changed compared to the other person that was with him, the other
person—the other person black male that was with him, he was lighter colored,
if you compare the other person with him, you would say he's light skinned.
That's what they wanted. I mean, they wanted a description. One was darker
than the other. The other one was darker. What am I suppose to say? Well,
I mean, what am I supposed—how do—description that they want? (RR4: 235).
(5) The length of time between the crime and the confrontation.
This crime occurred on September 29, 1999 and the confrontation in the
courtroom between Applicant and the victim occurred on May 2, 2000, and eight
month interval. Applicant would point out that during this interval, the
victim maintained his relatiosnship with the accomplice witness, Sonya Holder.
This woman is responsible for his beating, why carry on a relationship with a
person who caused you so much trauma. In fact both Holder and the victim,
who had a relationship of prostitute-customer drug supplier prior to the
crime admitted that the victim had visited Holder several times during her
incarceration for this offense and in fact the victim had even put money
on her account at the jail. (RR4: 83-84, 224-226) Certainly raises the issue
that a possibility that some of their discussions during this eight month
interval included Holder suggesting to the victim that Applicant was one
12
of her accomplices. Holder testified in response to questioning by both the
State and the defense that she was recieving testimonial immunity in exchange
for her testimony and it was also her hope that in exchange for her testimony
against Applicant, that she would recieve probation. (RR4: 39-40, 72, 88).
CONCLUSION
The Applicant has proven through the preponderance of the evidence that
accomplice witness and non-accomplice testimony was insufficient to support
the conviction and request that a evidentiary hearing be held to determine
the merit of the claim and if this reviewing court finds in favor of the
Applicant it is required to order a new trial or the immediate release of
the Applicant.
GROUND FOR REVIEW NO. 2
APPLICANT CONTENDS THAT THE TRIAL COUR ERRED IN NOT GIVING A CORRECT CHARGE
TO THE JURY WHEN IT FAILLED TO STATE WHETHER ACCOMPLICE WITNESS WAS A WITNESS
AS A MATTER OF FACT OR AS A MATTER OF LAW.
ARGUMENT AND AUTHORITES:
A. FACTS
On page 6 and 7 of the Court's charge to the jury it states: "You are
charged that Sonya Holder was an accomplice if any offense was committed,
and you are instructed that you cannot find the defendant guilty upon the
testinrany of Sonya Holder unless you first believe that the testinrany of
said Sonya Holder is tue and that it shows the defendant is guilty as charged
in the indictment.
B. APPLICABLE LAW
The Court of Criminal Appeals has established a standard of review to
whether or not the Applicant was harmed by the trial Court's error in failing
to include the correct instructions in the jury charge that requires that
the reviewing court to examine the evidence presented at trial. AIman2a v.
State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1985)("i\'e that finding error in
the Court's charge to the jury begins-not-ends the inquiry; the next step
is to nake an evidentiary review along the lines described in Davis, supra
as well as a review of any other part of the record as a whole which may
illuminate the actual not just the theoretical, harm to the accused.")-
At the conclusion of final arguments of counsel the Court prepared the
13
proposed charge to the jury and presented it to the State and the Applicant's
counsel to permit each an opportunity to enter objections to the 'proposed
charge and neither the State or the Defense objected to the charge. The Court's
failure to include the correct instruction on accomplice witness as a fact
question for the jury to decide if the witness, Sonya Holder, was a accomplice
as a matter of fact, or as a matter of law. See McDuff v. State, 939 S.W.2d
607, 613 (Tex.Crim.App.1977). The individuals, Sonya Holder, Robert L. Brown,
having been indicted for committing the offense, were accomplices as a matter
of law. Smith v. State, 897 S.W.2d 348, 350 (Tex.Crim.App.1995).
The only evidence that would have been available to the State to support
a conviction of the Applicant would have been the testimonial evidence of
the witness who was a party (accomplice) in the offense. Of course, under
Texas Law, a conviction cannot be sustained on the uncorroborated testimony
of individuals who were accomplices in the commission of the offense.
Pursuant to T.P.C. §7.01. Parties to Offense (a) each party is responsible
as a party to an offense if the offense is committed by his own conduct,
by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with the commission of the offense.
(c) All traditional distinctions between accomplices and principles are then
abolished by this section, and each party to an offense may be charged and
convicted without alleging that he acted as a principle or accomplice, and
T.P.C. §7.02. Criminal Responsibility for Conduct of Another provides: a
person is criminally responsible for an offense committed by the conduct
of another...(2)acting with the intent to promote or asist the commission
of the offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense;...In addition, Tex.Crim.Proc Art.
38.14. Testimony of Accomplice, informs us that, " conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and corroboration
is not sufficient if it merely shows that the commission of the offense."
Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).
Sonya Holder, applicant's codefendant, testified that she had had a
relationship with the victim for approximately five years wherein he would
give her money and drugs for sex. (RR4: 32-41). She also testified that she
also had a relationship with Applicant at the same time wherein they would
have sex and do drugs together. (RR4: 42-45). She testified that on September
14
29, 1999, she went to Pete Arevalo's house to rob him and in that robbery
she took drugs from Arevalo's home. She testified that she took the drugs
to Brown and they smoked them. (RR4: 45-46). Holder related that they drove
to to the victim's home which was located in his automotive shop. She knocked
on the front door and when the victim answered the door, she told him that
she needed to use the bathroom. The others were waiting off to the side.
Holder testified that she entered the victim's small apartment and proceed
to the bathroom. Holder testified that when she returned from the bathroom
she saw the applicant holding the victim, by his neck up against the wall
and Quincy was holding the gun to the victim's head. (RR4: 52-54). Surely
she satisfied the legal requirement as set out in §7.02 in that arguably
she had the requisite intent, knowing that they were going to rob the victim
and she certainly did aid in the preperation having helped in the securing
of the victim by knocking on the door.
As a consequence Holder satsfied both the legal and factual conditions
of §7.01 and §7.02. With these facts, concerning the knowledge and the conduct
of the witness, it is not unreasonable to expect that, had the required correct
instructions regarding accomplices been included in the charge, the jury
could have determined that Holder was a accomplice as a matter of law.
A person is an accomplice if she participates before, during, or after
the commission of the crime and can be prosecuted for the same offense as
the applicant or for a lesser-included offense. Medina v. State, 7 S.W.3d
663, 641 (Tex.Crim.App.1999) cert, denied 529 U.S. 1102, 120 S.Ct. 1840,
146 L.Ed.2d 732 (2000). The trial court failed in its duty to include the
correct instructions were Holder was a accomplice as a natter of law. It
is enshrined in our law that the jury is the sole trier of facts, not the
court. Tex.C.Crim.Proc Art. 36.13 Jury Judge of Facts, provides, "unless
otherwise provided in this code, the jury is the exclusive judge of the facts,
but they'rebound to recieve the law from the court and be governed thereby."
In failure to include the correct instructions on a fact question in
regards to accomplices and accomplice testimony the trial court has then
impermissibly intruded into the are of fact determination reserved to the
jury and usurped its function as exclusive trier of fact. Applicant asserts that
the evidence is insufficient to support when measured by the evidentiary
standard established by the Court of Criminal Appeals in Malik v. State,
15
953 S.W.2d 234, 239 (Tex.Crim.App.1997) where the court overruled prior case
law governing sufficiency of evidence to support a conviction and stated
the new rule as follows: "Hence, sufficiency of the evidence should be nseasured
by the elements of the offense as defined by the hypothetical correct jury
charge in the case. Such charge would be one that accurately sets out the
law, and is authorized by the indictment, does not necessarily increase
the State's burden of proof or unnecessarily restricts the State's theories
of liability, and adequately describes the particular offense for which the
applicant was tried."
However, should this reviewing Court determine that the trial court
erred in failing to include an accomplice as a matter of law instruction
concerning Holder this Court must conduct a harm analysis. The actual degree
of harm is assessed from the following factors:
(1) the charge itself;
(2) the state of the evidence including contested issues and the weight
of the probative evidence;
(3) arguments of counsel;
(4) any other relevant information revealed by the record of the trial as
a whole.
Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996).
The Court having denied the jury the opportunity to discharge their
function as the exclusive trier of fact has denied the applicant a fair and
impartial trial. The only remedy which would redress the harm to the appplicant
is to reverse and remand the cause to the trial court for a new trial on the
merits.
GROUND FOR REVIEW HO. 3
THE APPLICANT CONTENDS THAT THE EVIDENCE PRESENTED WAS MANUFACTURED AND WAS
NOT LEGALLY SUFFICIENT TO SUPPORT THE CONVICTION IN ACCORDANCE WITH THE JACKSON
V. VIRGINIA STANDARD.
ARGUMENT AND AUTHORITES:
a. FACTS
According to the charge and the testimony the court determined that
the crime happened on September 30, 1999 into October 1st 1999. And where
Sonya Holder was accompanied by three black males and went to Pete Arevalo's
home to rob him of money and drugs. (RR4: 45). He was allegedly beaten with
a Western Style .22 Revolver with a pearl handle. (RR4: 54, 199, 133). The gun
16
was supposedly disintergrated when it was used to beat the victim on his
head^ and three days later Arevalo brought the pieces to the Detective in
charge of the investigation Roy Gay. (RR4: 13C). The fragments consisted of
the broken pearl handle, A slide spring from an automatic weapon, a barrel
that had a ten degree bend in it, a, cylinder locking pin, and other small
pieces. See State's exhibit #22, (Applicant's Exhibit A).
Pete Arevalo testified that he found pieces of the gun in his bed
and on the floor and under his bed. (RR4 140, 229, 230, 231, 142). This was
after the Criminal Scene Investigators came in and took pictures of the small
apartment and the bedroom in which this altercation took place. The Accomplice
witness Sonya Holder testified that Sean handled the pistol when he exited the
apartment. She also testified that the gun belonged to Quincy. (RR4: 54, 61).
She later testified that they took the guns to someone elses home and tried to
figure what to do with the .22 and the shotgun. (RR4: 63). She also testfied
that there was only one pistol. (RR4: 71).
Since Sonya Holder testified that the pistol that was taken in the
home of Arevalo and taken out of the home of Arevalo, where did the pieces of
the different pistols come fror.:. Both the victim and the detective testified
that Pete Arevalo has a son who worked as a detective in the Austin Police
Department. (RR4: 163, 228).
B. APPLICABLE LAW
The Applicant may assert that the evidence is legally insufficient
under two seperate thoeries. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.
Crim.App.2002). First, he may claim that the evidence is not legally sufficient
as a matter of federal constitutional law. The standard for reviewing the
legal sufficiency of the evidence under this standard is whether after viewing
all the evidence in the light most favorable to the prosecution any rational
trier of fact would have found the "substantial elements of the criminal
offense as defined by state law" beyond a reasonable doubt. Jackson v. Virginia,
99 S.Ct- 2781, 2789, n.12 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex,Crim.
App.2000); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005).
A review for legal sufficiency does not involve a reweighing of the
evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d
556 (Tex.Crim.App.2000). The jury is to be the exclusive judge of witnesses
credibility and the determiner of the weight to be accorded to the witnesses
testimony, and is to reconcile conflicts in the evidence, whether properly
17
admitted or not in determining whether the evidence was legally sufficient.
Lockhart v. Nelson, 488 U.S. 33 (1988); Johnson v. State, 967 S.W.2d 410
(Tex.Crim.App.1988). In any criminal cases the State must prove every element
of the element of the offense beyond a reasonable doubt. Tex.P.Code §2.01;
Tex.C.Crim.Proc Art. 38.03; In Re Winship, 397 U.S. 358 (1970); Alvarado
v. State, 912 S.W.2d 199 (Tex.Crim.App.1995). A conviction is not sustainable
on appeal if the evidence does not sufficiently establish all material evidence
of the offense charged. Gilbertson v. State, 563 S.W.2d 606 (Tex-Crim.App.
1978). If the evidence is insufficient under constitutional due process,
the conviction must be reversed and the applicant acquitted. See Burks v.
U.S., 1, 12, 98 S.Ct. 2141, 2150, 51 L.Ed.2d 1 (1978); Fuller, Supra at 253.
In the alternative, the applicant may assert that the evidence is leqally
insufficient under the State law sufficiency standard. Fuller, suora at 253.
Under the State standard, evidentiary sufficiency is measured aqainst the
"elements of the offense as defined by the hypotheticaliy correct jury charge
for the case." Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex.Crim.App.2001).
A "hypothetical correct jury charge" encompasses the statutory elements of the
offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d
394, 404 (Tex.Crim.App.2000). If the evidence is determined to be insufficient
under this State law standard the applicant's conviction must be reversed
and the cause remanded for a new trial. Fuller, supra at 253; Gollihar, supra
at 248.
Under both standards, a reviewing court is not to position itself as
a thirteenth juror in assessing the evidence. Dewberry v. State, 4 S.W.3d
735, 749 (Tex.Crim.App.2000); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.
App.1988). It is not the reviewing court's duty to disregard, realign, or
weigh evidence, this the fact finder has already done. Moreno, supra at
867. Rather, the verdict must stand "unless it is found to be irrational
or unsupported by more than a 'mere modicum' of the evidence," with such
evidence "being viewed under the Jackson light." Muniz v. State, 851 S.W.2d 233
246 (Tex.Crim.App.l993)("we do not reevaluate the weight and the evidence
credibility, but act as only to ensure that the jury reached a rational and
clear decision.").
The fact finder, as the exclusive judge of the facts, the witnesses
credibility, and the weight given their testimony, is free to believe or
disbelieve the testimony or reject any or all the evidence on either side.
18
Adelman v. State, 828 S.W.2d 412, 418 (Tex.Crim.App.1992). The fact-finder do
not need to believe even uncontroverted testimony. Johnson v. State, 571
S.W.2d 170, 173 (Tex.Crim.App.1978). Conflicts in the evidence, then, are
for the for the jury to decide and resolve, and a mere conflict in the evidence,
without more, is not enough to render the evidence insufficient to support
a verdict. Upton v. State, 853 S.W.2d 548, 552 (Tex.Crim.App.1993).
Practically, the corrsct standard of review requires the reviewing
court to resolve inconsistencies in the testimony in favor of the verdict.
See Turro v. State, 867 S.W.2d 43, 47-48 (Tex.Crim.App.1993). The Court's
to review the evidence "as it is already weighed by the jury's verdict to
determine whether any rational trier-of-fact could have found the essential
elements of the offense beyond a reasonable doubt." Moreno, supra at 867; Turro,
supra at 47. In testing the sufficiency of the evidence, "a reviewing court
must not focus on what the State's evidence failed to show, instead [its]
focus is on the evidence actually introduced." Billey v. State, 895 S.W.2d
417, 419 (Tex.App.-Amarillo 1995).
The applicant would like to show the court as follows:
A person committs the offense of aggravated robbery, if he commits
the offense of robbery as hereinafter defined, and he uses or exhibits a
deadly weapon. A person ciommits the offense of robbery if in the course
of committing theft as hereinafter defined and with the intent to obtain
or maintain the control of property, he intentionally or knowingly threatens
or places another in fear of imminent bodily injury or death. T.P.C. §29.03(a)
(1)(2)(3).
Now bearing in mind the foregoing instructions, if you believe from
the evidence beyond a reasonable doubt, that the defendant, Robert Lee Brown,
on or about the 1st day of October, 1999, in the county of Travis and the
State of Texas, did then and there, while in the course of committing theft
of property, intentionally, or knowwingly threaten or place Pete Arevalo in
fear of imminent bodily injury or death, and Robert Lee Brown did then and
there use or exhibit a deadly weapon, to-wit: a firearm, that in the manner
or means of its use or intended use, was capable of causing death or serious
bodily injury, you will find the defendant guilty of the offense of aggravated
robbery and so say you by your verdict, but if you do not believe, or if you
have a reason to doubt thereof, you will acquit the defendant and say by your
verdict "Not Guilty".
The quoted paragraph is sufficient to charge the offense and must be
19
proved. Wray v. State, 711 S.W.2d 631 (Tex.Crim.App.1936). In the instant case,
the State relied only on the victim and the accomplice witness to convict
him of the charges on the indictment. The indictemnt states that the Penal
Code they used was 29.03, 2(a) stating that the victim was 65 years of age
or older during the commission of the offense-
Detective Gay testified that he interviewed the victim several days
after the offense. DurinG this conversation, the victim related how Sonya
Holder and three black males had come to his home and robbed him. (RR4: 131-
134) The victim brought in pieces of a handgun 3 days after the occurrence
which the robbers allegedly had used to beat him with and which had broken
during the assault. Gay testified that after that this weapon, State's exhibit
#22, was a deadly weapon. (RR4: 138-144).
Sonya Holder (accomplice witness) testified that she went to the home of
Pete Arevalo on the 29th of September. She also testified that the gun belonged
to Quincy and he had the gun going in to Arevalo's home and Sean had the gun
coming out of Arevalo's home. She testified that there was only one pistol.
She later testified that they took both guns, the .22 and the shotgun to some
other home and stashed them. (RR4: 45-90).
Pete Arevalo stated in his testimony that he found the gun and brought to
Detective Gay 3 days after the incident and that it was in pieces and he could
only describe the pearl handle. He also testified that the shotgun misfired on
him twice and it misfired on the Applicant once and also that the .22 misfired
and jammed.(RR4: 193-208). the applicant avers that a pistol of the revolver
type does not jam, it only misfires when it has dead ammunition in it's chamber.
Applicant contends that the manufactured evidence that Pete Arevalo did
present to the Detective was legally insufficient to support the conviction and
this court is required to hold and.evidentiary hearing and investigate the gun
evidence and compare it with the testimony given above and reverse this illegal
conviction and vacate the sentece-
GROUND FOR REVIEW NO. 4
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO OBTAIN A CONVICTION
BASED ON PERJURED AND FALSE TESTIMONY AND A FAILURE TO CORRECT THE PERJURED
AND FALSE TESTIMONY AFTER IT WAS GIVEN VIOLATED THE APPLICANT" S FIFTH AND
FOURTEENTH AMENDMENT RIGHTS TO CONSTITUTIONAL DUUE PROCESS OF LAW.
AUTHORTIES AND ARGUMENT;
The United States Supreme Court has expressly recognized that when
20
confronted with perjurious and false testimony the prosecutor has duty
to correct it. Giqlio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed-2d
104 (1972); U.S. v. Aqurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
Further, if the prosecutor had actual knowledge of the falsity of the
testimony is then irrelevant, if the prosecutor should have known is sufficient
enough. Giglio, supra at 152. Thus, tne Supreme Court has endorsed the imputation
of knowledge at least from one prosecutor to another, however, the extent
of this imputation of knowledge has been expanded. In Adams v. State, 768
S.W.2d 281, 291 (Tex.Crim.App.1989), the Court noted that for purposes of
imputing knowledge to the prosecution, court's have "declined to draw a
distinction between different agencies under the same government, focusing
instead upon the 'prosecution team' which includes both investigative and
prosecutorial personnel. See Duggan v. State, 778 S.W.2d 465, 568 (Tex.Crim.App.
1989)("it does not matter whether the prosecutor actually knows that the
evidence is false; it is enough that he or she should have recognized the
misleading nature of the evidence").
To summarize, the State violates a applicants rights to due process
when it actively or passively uses perjured and flase testimony to obtain
a conviction. Mooney v. Hoiohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed.2d
791 (1935); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).
Such violation occurs whenever the prosecutor has actual knowledge
or imputed knowledge of the perjury. In the instant cae, the applicant urges
that this reviewing court adopt the findings after review of the record that
he be granted relief based upon this claim that the State used perjured
testimony.
The Court will find that the State's witnesses used perjured and false
testimony which violates his due process rights and the applicant would
like to show the Court that the deception is apparent and would like to show
the court through the following exerpts from the record.
Sonya Holder:
Q: Now I want to direct your attention back to September 29th, 1999.
Did you go to Mr. Arevalo's house that day?
A: Yes, sir.
Q: And why did you go over there?
A: So we could rob him.
21
Q: Did you go over there that day to rob him?
A: Yes, sir.
Q: Was he there?
A: No, sir.
Q: Did you go back to his house that day?
A: Yes, sir.
Q: Did you take anything from the apartment?
A: Yes, sir, I did.
Q: And what did you take?
A: Drugs.
Q: And then on the next day, on September 30th, were you with Robert?
A: Yes, sir.
Q: Before the robbery, during the day, on September 30th, who were
you all with...
A: Robert Sean and Quincy.
Q: Were you all talking about doing something?
A: Yes, they were talking about robbing him...
A: Yes, they would ask me did I know where he kept his money and drugs.
(RR4: 45-48).
Q: And when you walked out of the bathroom, what did you see?
A: I saw Robert have Mr. Arevalo by his neck against the well and Quincy
had the gun in his head.
Q: Did anyone have a pistol?
A: Yes.
Q: Who had the pistol?
A: I believe Sean had it.
Q: Did Robert tell you that he tried to kill him?
A: Yes, sir.
Q: And what did he say about that?
A: He said he tried to shoot the .22 (revolver) but it jammed, and that
he tried to shoot the shotgun but it got jammed. We went to somebody's
house and wiped blood and they were putting away the guns. He wiped blood
from his shoes and he—they were trying to figure out what to do with
the .22 and the shotgun.
Q: Was there more than one pistol?
A: No, sir.
Q: Okay. So you didn't see it after the robbery?
22
A: No, sir, I didn't know what kind of condition (the pistol) was in.
Q; Describe the pistol for the jury please.
A: It was silver. That's all I know.
Q: Silver handle, silver—
A: It was a black handle with silver.
Q: Black over silver?
A: Uh-huh.
(RR4: 60-63, 77-78).
Detective Roy Gay:
A; October 4, 1999, he brought in fragments of the handgun, it was left
behind at the scene. He said that it was the handgun they tried to sell
him.
A: I believe he said he found it in his bed or in the covers of his bed.
A: Well, it had blood on it, you know, presumably from Mr. Arevalo. It was
broken in several pieces where the handle of the gun broke off.
A: Sort of a Western Style Revolver, pretty cheap.
(RR4: 138-143).
Pete Arevalo:
Q: How hard was he hitting you with the pistol?
A: Well, at that time they were just hitting me. They really hit me when
I was in bed, when I ran into the bedroom and get my shotgun.
A: It surprised them that I had a shotgun right next to the lamp. I had
it covered with a towel. At that time Sonya walked passed the doorway
and I asked Sonya to help me.
A: It means it misfired, because the shotgun misfired on me—misfired on
me twice while I was held down.
Q: And then each time after you fired it while they were stuggling—while
you were struggling with them, did you do anything to try to clear the
jam?
A: I reloaded—I cocked it again and reloaded it you know, twice, still
wondering why it misfired.
(RR4: 199, 201, 206-207).
Q: Did you pay her in cash or did you pay her in crack cocaine?
A: No, I would always pay her in cash or take her to buy some.
Q: You would take her someplace to buy some crack cocaine?
A: Yes.
Q: You never gave her directly yourself crack cocaine?
A: Na_
(RR4: 227).
23
Q: And then you found pieces of the pistol that was used to beat you ove
the head?
A: Yes.
Q: And where did you find that sir?
A: In my bedroom.
Q: And could you describe what pieces you found?
A: A bunch of broken pieces is all I can say.
Q: Part of the handle?
A: Yes.
Q: Do you recall what it looked like, the handle?
A: It was a pearl-pearl handle.
Q: And it was one of those cheap Saturday Night Special pistols, you think,
that was used to beat you over the head?
A: It had to be.
Q: I want to show what has been marked as State's Exhibit #22, can you
look in that bag and tell me what's in the bag?
A: This is the part that I found in my bedroom.
Q: And where in the bedroom did you find those?
A:.1 found some on the bed, some on the floor, and under the bed.
(RR4: 229-231).
Officer Surei Zamont-Knightner:
A: From there we requested a Crime Scene Unit to come out, and we allowed
very few individuals to enter into the building. We started a Crime
Scene Log.
A: ...It definitely looked like there had been some sort of struggle or
a fight. Things were very disarrayed. Things were all over the place,
and there was blood—there was blood on the floor, blood on the bed
and the pillows.
(RR4: 99-100).
The applicant contends that the testimony listed above shows the State
blatantly used perjured testimony and false evidence during the trial process.
It was evident that the prosecutor v/anted a conviction of the applicant when
he went clearly outside of jurisprudence to secure this conviction that he
himself brought out in testimony.
Fittingly, the prosecutor had Sonya Holder testify that she helped
rob the victim on the 29th and the 30th of September. She testified that one
pistol went in the home and one pistol came out of the home. She testified that
she recieved drugs and money from the victim.
24
Detective Gay said that the victim brought him pieces of a handgun
three days after the incident in which the Crime Scene Investigator just
walked over when they processed the crime scene.
Pete Arevalo testified that he did not give her drugs and he did not
keep them in his apartment. He also testified that the gun pieces he found
were on the bed, on the floor and under the bed. Sonya Holder testified that
the gun had a black handle, when Arevalo testified that it was a pearl handle.
In Texas, a person who swears falsely to facts in a affidavit or recording
or an affiramtion on belief can be indicted for perjury. Griffin v. State,
128 S.W.2d 1197 (1939). The victim and the accomplice is analogous to facts in
which were stated in their statements nade on a affiramtion on belief. A person
who willingly swears falsely to a belief in existence of a fact which she
knows does not exist is guilty of perjury as if she had sworn directly to
the existence of a fact which she knows did not exist. Brasher v. State,
715 S.W.2d 827, 831 (Tex.App.-Houston[14th Dist.] 1986).
The applicant had three witnesses who testified to his alibi and further
shown the court of the perjury that was invloved in prosecuting the applicant
and the trial court never considered the following testimony along with the
jury.
Margaret Walker, the applicant's girlfriend at the time testified on direct
examination that on September 30, 1999, applicant worked all night on her
car installing a new engine. The new engine was delivered at around 9:00
p.m. on September 30th and applicant was still working on it when she went
to work the next morning at 4:00 a.m. (RR5: 6-19). On redirect examination, she
amended her testimony and said that the engine had actually been delivered
on the evening of September 29th and applicant had worked on it on the 29th,
30th and on October the 1st. (RR5: 25-28).
Steve Michaelenko, applicant's neighbor, qalso testified that around September
29th or September 30th, 1999, applicant was installing a new engine in his
girlfriends car. He related that the engine was delivered at around 9:00
p.m. on the 29th or 30th and applicant worked on the car all night long.
(RR5: 28-34), Michaelenko testified on redirect examination that applicant did
work on the car for four or five nights in a row. (RR5: 37-38).
Stefan Michaelenko, Steve's son, also testified that he remembered applicant
working onnis girlfriend's car all night long one night towards the end of
September 1999. (RR5: 43-49).
25
The State's knowing use of perjured testimony and false manufactured
evidence in a criminal prosecution violates due process when the perjury
could decieve the jury unjustly convicting the applicant. The State also
has a duty to inform the Court of it's knowledge of false evidenceand perjured
testimony at trial. Failure of prosecutor to correct the perjured testimony
and false manufactured evidence of witnesses is ground for reversal. Napue v.
Illinois, 360 U.S. 264, 79 S.Ct. 1173 (1959); U.S. v. Thomas, 987 F.2d 1293
(7th Cir. 1993); Demarco v. U.S., 928 F.2d 1074 (11th Cir. 1991).
In the federal system, a constitutional error is harmful on collateral
review only if it had a "substantial and injurious effect or influence in
the determination of the jury's verdict- Brecht v. Abrahamson, 507 U.S. 619,
113 S.Ct. 1710, 123 L.Ed-2d 353 (1993), the State bears the burden of proving
this error to be harmless. O'Neal v. McAnnich, 513 U.S. 437, 15 S.Ct. 992,
130 L.Ed.2d 947 (1995).
The applicant asserts that from the totality of the record that the
perjured testimony and manufactured false evidence harmed him and that the
minds of the jury were persuaded by this evidence that the applicant was
guilty. This reviewing court should determine, as a matter of law, whether
the false statements and evidence can have a affect on the course of the
proceedings. Materiality is distinguished from other elements of the crime
the State typically must prove in a criminal trial. The question of the
materiality of the evidence does not depend on the probative value of the
evidence but it's prejudicial effect and impact. It has also been held that
a factual evidentiary showing establishes the basis for the materiality of
a statement, but the 'ultimate finding of materiality on any interpretation
of substantive law-'
•[Materiality1 refers to 'misstatements having some substantial potential
for obstructing justice.' This includes 'ulter trivial fabrications.* State v.
Rosenbaum, 910 S.W.2d 934, 937 (Tex.Crim.App.1994); Mitchell v. State, 608 S.W.
2d 226, 228 (Tex.Crim.App.1980).
The deliberate presentation of false evidence violates a applicants
right to due process. The failure to correct false evidence also encompasses
the same concerns- To obtain relief, the applicant has established that the
evidence was material and there is a reasonable likelihood that the false
evidence and perjured testimony did have an affect on the jury's verdict-
Generally, that the showing is made by establishing a reasonable likelihood the
26
false evidence was considered. As such, proof of the claim has encompassed
the Brecht standard of harm, and no such proof of prejudice is necessary.
Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995).
This reviewing Court apparently can make an exception in the use of
"knowingly and intentionally use of perjured testimony and false evidence"
without holding that "when such is shown the Rule 44.2(a) harmless error
standard applies. See Tex.R.Evid. Rule 44.2(a).
The applicant contends that a evidentiary hearing on the evidence of
the allegation on this claim of perjured testimony and false manufactured
evidence shows that he is entitled to a new trial. "[A] new trial should
be granted when:
(1) the court is reasonably well satisfied that the testimony given
by a material witness is false;
(2) that without it the jury might have reached a different conclusion;
and,
(3) that the party seeking the new trial was taken by surprise whether
false testimony was given and was unable to meet, or know of its
falsity, until after trial.
Larrison v. U.S., 24 F.2d 82 (7th Cir, 1928); U.S. v. Nixon, 881 F.2d 1035 (5th
Cir. 1989).
Before the applicant is entitled to a new trial under the Larrison
standard there is also the 'plain error standard' which asserts that the
applicant must further establish that he 'probably would have been acquitted'
but for trial error, and hopefully with the testimony noted above and the
totality of the trial record the applcaint can recieve a reversal and remand
for a new trial and ask for the perjured testimony to be corrected.
GROUND FOR REVIEW NO. 5
THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO USE LEADING QUESTIONS
DURING THE COMPLETE TRIAL PROCESS IN WHICH HELPED TO OBTAIN THE CONVICTION.
ARGUMENT AND AUTHORITIES:
A. FACTS
The State used leading questions in a especially egregrious manner that
was permitted throughout the direct examinations of their witnesses until
the defense counsel was then forced to object.
27
Q: And then on the next day. on September 30th, were you with Robert?
(RR4: 41).
Q: Before the robbery, during the day, on Spetember 30th, who all were you
with?
(RR4: 47).
Q: And what was your intention—
A: Mine?
Q; at Mr. Arevalo's? As a group, what was you all's intention?
A: To rob him.
(RR4: 52).
Q: So he was hitting you pretty hard out there?
A: Oh, yes.
Q: Could you hear anything when you were hit?
A: 0, yes. I could hear the solid hit.
(RR4: 199).
Q: Do you recall how many rounds you had in the shotgun?
A: I had four rounds—four rounds in the shotgun.
Q: Was there one in the chamber?
A: Yes.
Q: Okay. Now, when you grabbed the shotgun, what happened?
A: They knocked me on the bed, both of them did-
(RR4: 202).
Q: Okay. So at that point you were laying across—when they grabbed you,
they knocked you down across the bed?
A: Yes.
Do you recall—how were you holding the shotgun?
A: Laying on the side.
Q: So you had the —barrel was in your left hand?
A: Yes, was in left hand, and I was trying to point towards the fellow in
doorway, in other words, in front of me.
Q: And the fellow who was in front of you was the fellow with the pistol?
A: Yes.
Q: Which hand was the individual that was holding the shotgun—which hand
was he using to hold the shotgun?
A: Do what/ now—
Q: Do you recall—the individual—the man with the pistol that was also
holding the shotgun—
28 .
Q: —which hand was he holding the shotgun with?
A: I guess I don't remember...
Q: But he had it by the barrel?
A: Yes.
Q: So how many times did he hit you on the head?
A: About four times, maybe five time.
Q: So he hit you several times on the bed?
A: Oh, yes, while I was down on the bed..
(RR4: 203-204).
The applicant avers that at this juncture the defense attorney was
forced to object to the massive amount of leading questions by the prosecutor.
The prosecution went as far as pointing out who the applicant was with the
victim:
Q: When you were struggling with the guys in your house, you said that you
saw the person that had the pistol?
A: Yes.
Q: Do you see that person in the courtroom today?
A: Yes.
Q: Can you point him out?
A: (indicating).
Q: Can you tell me something's he is wearing?
A: Can I tell you what?
Q: Can you tell me something that he's wearing?
A: At that time he didn't have—what do you mean?
Q: Can you tell me something he's wearing today, just so we can put it on
the record that you've identified that person?
A: No, I couldn't tell you what he's wearing.
Q: Describe an article of clothing. What color is his shirt today?
A: What color is what?
Q: What color is his shirt today?
A: It's white, you know.
Texas Rules of Evidence Rule 611(c) states: "That leading questions should not
be used on the direct examination of a witness except as may be necessary
to develop the testimony of the witness. The trial court has discretion in
deciding whether to permit leading questions. The trial court finally had
to admonish the State in the use of leading questions. See Hernandez v. State,
29
643 S.W.2d 397, 400 (Tex.Crim.App.1982)(en banc).
Although it is recognized that in cases dealing with children the rule
against leading questions is somewhat relaxed, it should not be entirely
disregarded, as was with the case at bar. Clark v. State, 952 S.W.2d 882,
886 (Tex.App.-Beaumont 1997). It cannot be disputed that the entire direct
examination of the State's witnesses demonstrated impermissiable leading
questions in almost every detail of the robbery allegations. Not one- answer
was witnesses or from their own recollection and memory without the prompt
from the prosecutor.
The examples are numerous as listed above, as the entire testimony is
riddled with impermissible leading questions. Although the courts may be
relaxed in this area with a child witness, we are talking about a 21 year
old and a 60 year old. Such slackness in the rules of evidence should not
rise to such a egregrious level that it challenges the very basis of the
applicant's due process right and questions whether he recieved a fair trial
given such blatant violation of the rules-
Applicant's ultimate right to a fair trial and the due process right
given to him by the U.S. Constitution and by the Texas Rules of Evidence
were violated by allowing such a blatant violation of Rule 611(c) and the
trial court erred in allowing almost the entire direct-examination of the
State's witnesses to be proceeded by the prosectuions leading questions and
applicant request that his case be remanded for a new trial.
GROUND FOR REVIEW NO. 6
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE STATE TO PRESENT
EXTRANEOUS OFFENSE TESTIMONY AND FAILED TO PRESENT SUFFICIENT EVIDENCE THAT
THE JURY COULD FIND BEYOND A REASONABLE DOUBT. THAT THE APPLICANT COMMITTED
THE SAID OFFENSE OF AN EXTRANEOUS BAD ACT.
ARGUMENT AND AUTHORITES:
Extraneous acts are qenerally inadmissible at the quilt/innocence staqe
of a trial. See Tex.R.Evid. 404(b)("statinq that evidence of other crimes,
wronqs, acts, is not admissible to prove the character of a person in order
to show action in conformity therewith"). A applicant is entitled to be tried
on the accusation made in the State's pleadinq and he should not be tried
for some collateral crime or for beinq a criminal in qeneral-" Wilkerson
v. State, 736 S.W.2d 656, 659 (Tex.Crim.App.1987); Ex Parte Varies, 45 S.W.3d
627, 630-31 (Tex.Crim.App.2001).
30
The applicant contends that the followinq testimony were extraneous
acts that were admitted in testimony with the failure of objections by his
counsel. There was no rulinq or in-camera hearinq to determine the validity
of the bad acts that were testified to by the accomplice-witness- The charqe
aqainst the applicant was Aqqravated Robberv and the extraneous offense that
was unadiudicated were admitted and should be viewed under an abuse of iudqes
discretion to have them testified before the iury panel.
SONYA LEE HOLDER:
Q: Have you ever seen Robert deal druqs?
A: Not see him, but I know of him doinq it?
(RR4: 43)
Q: Did you all do anythinq prior to qoinq to Mr Arevalo's?
A: Yes, sir. When Mr. Arevalo was not at home, thev went ridinq around
lookinq for other victims.
(RR4: 48).
A: Yes, sir. Thev had~thev had stopped—I don't know what street and
where at but they stopped somewhere and Sean, robert, and Quincv qot
out and went to somebody's house, but nothinq happened.
A: They were qoinq to rob somebody.
(RR4: 50-51).
0: Did Robert do anvthinq else that night?
A: Yes, he did.
Q: What did he do?
A: He threatened me.
0: How did he threaten you?
A: He said if I say anythinq, he was qoinq to kill me.
Q: Did he do anythinq physically to you?
A: Yes, he did.
Q: What did he do?
A: He qrabbed me by the neck.
(RR4: 65-66).
The Tex.Code.Crim.Proc.A.. Art. 37.07 §3(a), provides that the extraneous
offense mav not be considered in assessinq punishment until the fact-finder
is satisfied beyond a reasonable doubt that these prior acts are attributable
to the applicant.
Art- 37.07 §3(a) does provide that: "reqardless of the plea and whether the
31
punishment be assessed by the iudqe or the iurv, evidence mav be offered
by the State and the Defense as to anv matter the Court deems relevant to
sentencing, including but not limited to the prior criminal record of the
defendant, his general reputation or his character, an opinion regarding
his character, the circumstances of the offense for which he is beinq tried
and notwithstandinq Rules 404 and 405, Tex.R.Evid-, and anv other evidence
of an extraneous crime or bad act that is shown beyond a reasonable doubt
by the evidence to have been committed bv the defendant or for which he could
be held criminally responsible and reqardless whether he has previously been
charged with or finally convicted of the crime or bad act").
This rule posed several problems for the Courts until the Court of
Criminal Appeals decided that when the State attempts to introduce evidence
of extraneous offenses, the trial court must make an initial determination
that a jury could reasonably rind beyond a reasonable doubt that the applicant
committed the extraneous offense before admitting such evidence. See Mitchell
v. State, 931 S.W.2d 950 (Tex.Crim.App. 1996). In Mitchell, the Texarkana Court
of Appeals, held that interpreting Art. 37.07 §3(a), that a preliminary
requirement that the State must prove beyond a reasonable doubt that applicant
is criminally responsible for the unadjudicated extraneous offense to be then
admitted. Mitchell, supra at 215. However, the Texas Court of Criminal Appeals
reversed and remanded Mitchell, stating that the Court of Appeals interpretation
of Art. 37.07 §3(a) was incorrect.
The Court of Criminal Appeals explained that the trial court is the
exclusive judqe on matters of law and decides the "threshold of admissibility"
on the admitted unadjudicated offenses. Mitchell, supra at 954. Thus, when
the State attempts to introduce evidence of extraneous offenses, the trial
court must make an initial determination that a jury could reasonably find
beyond a reasonable doubt that the applicant committed the extraneous offenses.
Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App.1994). It is only after the
trial judge resolves the "threshold admissibility" of the extraneous offense,
the jury, as "the exclusive judge of the facts" rather than the trial court
determines whether or not the State has proved the extraneous offense beyond
a reasonable doubt. See Mitchell, supra at 954.
This ruling makes the trial judge therefore, exclusively responsible for
determinging the "threshold admissibility" of any extraneous offense.
32
The trial court must first determine that the evidence is relevant
and that the jury could reasonably find beyond a reasonable doubt that the
applicant committed the extraneous offense. Harrell, supra at 953. If the
State fails to adduce the sufficient evidenc, the trial court should not then
admit the evidence. Stewart v. State, 927 S.W.2d 205, 208 (Tex.App.-Fort Worth
1996); U.S.C.A. VI and XIV.
It the trial court errs in making its preliminary determination that
the extraneous offense was admissible, then a harm analysis must be conducted.
The Reasonable Doubt Standard for consideration of extraneous offenses in
the guilt/innocence phase or in the assessment of punishment is neither
constitutionally required nor based on a constitutional mandate. See Fields
v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999). The court must disregard
any error not of constitutional magnitude unless it has affected the substantial
rights of the applicant. See Tex.R.App.Proc. Rule 44.2(a); Johnson v. State,
967 S.W.2d 410, 417 (Tex.Crim.App.1998); Couchman v. State, 3 S.W.Sd 155, 160
(Tex.App.-El Paso 1999).
A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury's verdict. King v.
State, 953 S.W.2d 558, 561 (Tex.App.-San Antonio 1998). The Supreme Court
has construed the nearly identical federal harmless error rule as follows:
"If, when all is said and done, the [court's] conviction is sure that the
error did not influence the jury, or had but very slight effect, the verdict
and the judgment should stand...but if one cannot say, with fair assurance,
after pondering all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially swayed by the error,
it is impossible to conclude that the substantial rights were not affected.
The inquiry cannot be merely whether there was enough to support the
result, apart from the phase affected by the error. It is rather, even so,
whether the error itself had substantial influence. If so, or if one is left
in grave doubt, the conviction cannot stand. O'Neal v. McAnnich, 513 U.S.
432, 437-38 (1995); Vega v. State, 32 S.W.3d 897, 905-06 (Tex.App.-Corpus
Christi 2000); Kotteakos v. U.S., 328 U.S. 759, 776 (1946).
"Grave doubt", means "in the judges mind the matter is so evenly balanced
that he feels himself in virtual equipose as to the harmlessness of the error.
O'Neal, supra at 435. The trial court erred in admittinq testimony of the
extraneous offenses against the applicant when absolutely no evidence was
presented by the State that the applicant committed such acts. No rational
33
trier of fact could have found the applicant had committed the extraneous
offenses as testified to by the accomplice witness beyond and reasonable doubt
as required under Art. 37.07 §3(a). Under the "threshold admissibility" and its
requirement the trial court should not have admitted the extraneous offenses.
In a similar case in Stewart, the State offered evidence of an extraneous
offense with three witnesses, includinq the victim, who all testified to
extraneous offenses in the punishment phase, but did not qive adeauately then
identify the defendant durinq the voir dire examination. Stewart, supra at 208.
Although this was considerably more evidence offered than in the instant
case, the court held that based on the record of the voir dire examination,
no rational trier-of-fact could have found the elements of the offense bevond
a reasonable doubt, and had held that the trial court erred in makinq its
preliminary determination that the extraneous offense was admissible. Id-
at 208. However, in Stewart, the court held that the error harmless when
the subsequent testimony of the victim and the witness before the jury did then
establish that the offense could have be found by a rational trier-of-fact
beyond a reasonable doubt. The victim's testimony before trial court was
considerably stronger than the evidence provided in the voir dire examination
Stewart, supra at 208.
Although, in the instant case, Sonya Holder's testimony cannot amount
to an overwhleming amount of substantial evidence for the trial court to
have made a determination that the iurv could have found the elements of
the extraneous offense beyond a reasonable doubt. There was absolutely no
evidence proving that the applicant committed the extraneous offenses and
it's admission was undeniably harmful to the applicant qiven the sentence
imposed bv the trial court. At the very least, it should leave this court with
"grave doubt" as to whether one can say with fair assurance that it did not have
some impact on the jury's decision on the finding of guilt of the applicant.
Given the egregrious error of admittinq the extraneous offenses bv
the trial court, and the obvious harm to the applicant in sentencinq. it
is then anticipated that the respondent will try to disquise the admission
of the evidence as impeachment evidence of the applicant's character under
rules 404 and 405 of the Tex.R.Evid., thus, this issue must be addressed.
Applicant asserts that the trial court erred in admitting the extraneous
offenses testified to at trial in violation of Rules 404(b) and 403 of the
Tex.R.Evid., and it is a qeneral rule that an accused may not be tried for
34
some collateral crime or beinq a criminal in qeneral. Williams v. State,
662 S.W.2d 344, 346 (Tex.Crim.App.1983). Evidence of extraneous offense was
improperly admitted, and reversal is required, where the probative value
of the evidence was minimal and the preiudicial impact was hiqh, the reauired
intent for the offense could be infered from the content, so the State did
not need the testimonial evidence to show intent. Castillo v. State. 910
S.W.2d 124 (Tex.App.-El Paso 1995). The rule excludinq evidence of extraneous
offenses is based on the belief that althouqh such evidence shows the applicant's
propensity to criminal conduct, and qenerally its preiudicial effect overwhelms
its probative value in determininq whether the accused committed the crime for
which he is on trial.
In the face of a proper objection, evidence of other wronqs and acts are
not admissible to prove character of the person to establish that he acted in
accordance with the regards of the alleged offense, even though there was no
objection made durinq trial. Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.
App.1991); Lazcano v. State, 836 S.W.2d 654, 657 (Tex.App.-El Paso 1992).
An extraneous offense may be admissible, however, it has relevance
apart from its tendency to prove confomitv therewith. Evidence which loqicallv
serves apart such purposes as "proof of motive", "opportunity," "intent."
"knowledge," "preperation," "plan," "Plan," "identity," or "absence of mistake"
or "accident," is relevant far beyond itstendency to prove conforming character.
Montgomery, supra at 387; Lazcano, supra at 657; Hill v. State, 852 S.W.2d 769,
770 (Tex.App.-Fort Worth 1993); Kelly v. State, 828 S.W.2d 162 (Tex.App.-Waco
1992).
The law imposes upon the trial court the ultimate task of deciding
the "threshold admissibility" of admittinq evidence of extraneous offenses
before a jury durinq the trial process to prevent an abuse by the State of
casting before the jury every incident or extraneous offenses that may then be
concievably used against the applicant in effort to thwart the iurv into
believing the applicant may have done crimes for which they mav have no evidence
to prove to this court, in attempting to place a safeqaurd on such abuse, placed
a burden of this "threshold admissiblity" standard on the trial court to
determine if sufficient evidence exists before such extraneous offenses could
be used against the applicant. This case is classic example of such abuse,
where the trial court was inept in thier duty by allowinq a potentially harmful
35
detrimental extraneous offense to be submitted to the iury in its verdict,
when there was no evidence presented that proved that the applicant had then
committed the crimes at all. The harm was detrimental to the applicant and he
request that the court sustain this error after this court holds an evidentiary
hearinq to determine the facts on the merit and reverse and remand for a new
trial.
GROUND FOR REVIEW NO. 7
THE APPLICANT CONTENDS THAT HIS CONVICTION IS VOID WHEN THE PROSECUTION PROMISED
THE ACCOMPLICE WITNESS/CO-DEFENDANT SOMETHING OF VALUE FOR HER INCULPATORY
TESTIMONY AGAINST APPLICANT IN VIOLATION OF 18 U.S.C. §201(C)(2).
ARGUMENT AND AUTHORITES:
The applicant contends that Title 18 U.S.C. §201(c){2), prohibits giving,
offering, or promising anything of value to a witness 'for or because of
her testimony. Applicant argues that the State violated this one statute
by promising the State's witness and the applicant's co-defendant Sonya Holder,
probation, who had conspired with the complainant in this robbery case, in
return for her testimony against the applicant. Applicant was convicted for the
aggravated robbery in cause no. 002368 in the 167th District Court of Travis
County. The co-defendant and the victim had an unusual and questionable affair
and relationship. In trial testimony and in accordance with the county jail
records the victim visited and left money to the accomplice who was responsible
for the robbery against the victim. This evidence is supported by the trial
record that the State's witness Sonya Holder was recieving testimonial immunity
in exchange for her testimony against the applicant, by recieving probation for
tne response to the State and the defense. (RR4: 39-40, 72, 88).
Title 18 U.S.C. §201(c)(2) could not be more clear when it provides that:
"Whoever, directly or indirectly, gives, offers, or promises anything
of value to any person for or because of their testimony under oath,
or affirmation, given or to be given by such a person as a witness upon
a trial hearing or other proceedings before the court, authorized by
the laws of the United States to hear evidence or take testimony, shall
be fined under this title or imprisoned for not more than two years
or both.
This title is broadly construed to further it legislative purpose in the
detering of corruption. The prosecutor made Sonya Holder a promise of probation
for her testimony against the applicant and therby violated §201(c)(2). See
36
State v. Hernandez, 731 F.2d 1147, 1149 )5th Cir. 1984). The class of people
who can violate 18 U.S.C. §201(c)(2) is not limited when it avers "whoever,"
within the elements of the statute. First, the statute requires a gift, offer
or promise, either direct or indirect, to a person. Second, the gift, offer,
or promise must be of 'value'. Third, the gift, offer, or promise, must be
made 'for' or 'because of the person's sworn testiony at a trial, or other
proceedings before an authorized court.
The State in the case in chief promised Sonya Holder that she would recievc-
probation in return fcr her testimony against the applicant in trial. The State
of mind required to violate that statute is knowledge that the thing of value
is given for or because of testimony. U.S. y. Campbell, 684 F.2d 141, 150
(D.C. Cir. 1982)
The prosecutor in the instant cause was acting on behalf of the State
and is within the statutory languag of "whoever" by promising Sonya Holder
ten (10) years probation for her testimony. In the case at bar, the prosecutor
is the representor of the State of Texas which acted in violation of 18 U.S.C.
§201(c)(2), by the promise of leniency in return of her testimony against
the applicant, for without her perjured testimony the State could not have a
conviction obtained in the case at bar.
In Hamilton v. General Motors Corp., [citation omitted] the policy in
§201(c)(2), has long been expressed and enforced at common law when the court
held, "The judicial process is tainted and justice cheapened when factual
testimony is purchased, whether with leniency or money because prosecutors
bear a weighty responsibility to do justice and observe the law in the course
of a prosecution and it is particularly appropriate to apply the structures
of §201(c)(2) to their activities. The Court also held:
"The attorney is the representative of an ordinary party to a controversy,
but of a svereignty where obligation to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in
a criminal prosecution is not that it shall win a case, but that justice
shall be done. As such, he is in a peculiar and very definite sense,
the servant of the law, and the two fold aim of which is that the guilty
shall not escape, nor the innocence suffer.
Hamilton v. G.M.C., supra.
The State made an offer to Sonya Holder due to position as an accomplice
by matter of law to the instant case. The statute's "for or because of" language
it does not require a Quid Pro Quo relation between the testimony and the
37
promises, though Sonya Holder admitted to being promised probation by the
State. (RR4: 39-40, 72, 88), but merely requires that the promises be motivated
by the testimony, even though the testimony might have been given without
promises. U.S. v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980).
In the applicant's case, however, the record indicates that the testimony
and the promises are mutually induced by one another, a relation stronger
than the "for or because of" requirement by section §201(c)(2). U.S. v. Sun
Diamond Growers, 138 F.3d 961, 966 (D.C. Cir. 1998).
In U.S.A. v. Sonya Evette Singleton, [citations omitted], the appellant
Singleton, filed a motion to suppress testimony allegedly obtained in violation
of 18 U.S.C. §201(c)(2). This reviewing Court is faced with a similar situatuion
where here at the case at bar, the applicant filed a motion to reveal agreements
with Sonya Lee Holder with the prosecution filed April 26, 2000. The Applicant
submits that the only appropriate remedy for this error is reversal of this
conviction and a new trial ordered, or in the alternative, allow the applicant
to bring this second application for writ of habeas corpus and conduct and
evidentiary hearing to give the applicant an opportunity to prove by the
preponderance of the evidence that had it not been for the perjured testimony
of the State's witness Sonya Holder, and show that no jurist of reason could
find the applicant guilty beyond a reasoanble doubt.
GROUND FOR REVIEW NO. 8
THE APPLICANT CONTENDS THAT DUE TO THE DEFICIENT PERFORMANCE OF TRIAL COUNSEL
HE WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE WHICH CAUSED
AN ACTUAL AND SUBSTANTIVE DISADVANTAGE TO THE APPLICANT IN RECIEVING A FAIR
TRIAL.
ARGUMENT AND AUTHORITIES:
A. FACTS
The applicant contends that he can show this reviewing court through
the following complaint that his trial counsel was not reasonable and his
actions were no the function of sound trial strategy. Trial counsel in his
performance was deficient in that it fell below the prevailing norms of his
profession, and the deficiency prejudiced and harmed the applicant, that
is, but for the deficiency there is a reasonable probability that the result
of the proceedings would have been different in which caused an actual and
substantive disadvantage for the applicant to recieve a fair trial.
38
Trial counsel Hon. Charles Hineman failed to investigate the facts
of the case and failed to formulate a comprehensive understanding of the facts
sufficient enough to present an adequate defense for his client- Trial counsel
failed to investigate the crime scene, he failed to have an expert witness
appointed, failed to preserve error in multiple instances, he failed to object
to extraneous offenses, he failed to request instructions for the court's
charge. These are the errors that the applicant contends that will help the
court to determine reasonableness of the trial counsels representation.
The performance of counsel fell below the professional norms and a
reasonable probability exits that the outcome may have been different had
he been aware of the facts of the case. Applicant's main argument is that
on review, trial counsel's representation is highly deferential and it may
be presumed that counsel's actions were not within a wife range of professional
asssistance. Mallet v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001); Tonq v.
State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000).
When the record is silent on the motivation underlying counsel's tactical
decisions, the applicant usually cannot overcome the strong and overwhelming
presumption that counsel's conduct was reasonable. Jackson v. State, 877
S.W.2d 768, 771 (Tex.Crim.App.1994); Tong, supra at 714.
The court in Strickland, held that trial counsel has a professional
duty to present all testimony and any other evidence to support his client's
defense. Strickland v. Washington, 466 U.S. 668 (1984); U.S. Const. Amend. Six
and Fourteen; Art. I §10 Tex.Const.; Tex.Code.Crim.Proc.Ann. Art. 1.05. Attorney
for the defense has a responsibility to seek out and interview any witnesses
and investigate any viable deenses available to his client, and a failure
to do so is ineffective assistance of counsel, if that defense is not advanced.
Ex Parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App.1982). Texas follows the
standard brought forth by the federal court in Supreme Court case, Strickland
v. Washington, supra, in deciding whether the applicant did recieve effective
assistance of counsel. Williams v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.
1986).
B. FAILURE TO CALL EXPERT WITNESS
In the instant case the victim brought fragments of a handgun in which
was alleged to be the weapon the applicant used to beat him with. This took
place 3 days after the incident,' the detective Roy Gay did no tests on the gun
39
fragments. There was no D.N.A. testing on the allegede blood and there was
no latent prints lifted to see if there could have been someone else who
committed the offense. The applicant contends that there was pieces from
several different weapons which brings into effect the discrepincies of the
evidence. The trial counsel could have had an expert to examine State's Exhibit
#22. This intum will help to determine if that weapon did infact break apart
during the assault of the victim in his home, especially when there is testimony
that show that the gun went in the house and came out of the house by the
assailants.
In Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60 L.Ed.2d 158
(1932), the Court held, "it is not enough to assume that the counsel thus
percipitated into the case though there was no defense, and exercised his
best judgment in the proceeding to trial without preporation. No one can say
what a prompt and thorough investigation which is ongoing might disclose
as to the facts."
Applicants counsel should of investigated the crime scene of the offense
charged. Then also try to interview and investigate the State's witnesses,
also, he should of been aware of any surprises. The failure to investigate
will not be considered sound trial strategy because no strategy can begin
to be a formulation of strategy until counsel has investgated facts and the
witnesses. See Ex Parte Lilly, 656 S.W.2d at 493; Smith v. State, 894 S.W.2d
876, 880 (Tex.App.-Amarillo 1995), unless the applicant who is charged, has
a competent counsel able to invoke procedural and substantive safeguards
that distinguish our system of justice, a serious risk of injustice infects
the trial and when the State obtains a conviction through such a trial it is
the States action that unconstitutionally deprives the applicant of his liberty.
See Cuvler v. Sullivan, 466 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980);
U.S. Const. Amend. VI.
The applicant's trial counsel's failure to prepare a defense and call
all witnesses be it character or expert of fact, prejudices the applicant
especially in light of the weakness of the State's case. Applicant is charged
with aggravated robbery with a deadly weapon and was denied effective assistance
of counsel and as a result of counsel failing to conduct and adequate and
thorough investigation and present a forensic expert to rebut testimony of
the victim and the Detective.
40
The United States Supreme Court characterized these failures as on
of the two "[more]" compelling sets of errors that will support the Court
in concluding that the applicant's trial attorney had provided constitutionally
ineffective assistance.
In the instant case, the only witnesses to the alleged evidence of
aggravated robbery if the victim and the accomplice-witnesses and there is
substantial circumstantive evidence that the applicant was involved with the
offense. When a case hinges all-but-entirely on whom to believe, an experts
interpretation of relevant physical evidence (or lack of it) is the sort
of "neutrally disinterested" testimony that may help in tipping the scales and
sway the fact-finder.
Because of the importance of physical evidence should be a focal point
of defense counsel's pre-trial investigation and analysis of the matter,
such pre-trial investigation and analysis will generally require some form
of consultation of an expert.
It is difficult to imagine a aggravated robbery w a deadly weapon...where
the defense would not be aided by the assistance of an expert. In summary,
trial counsel's failure to consult an expert knowing there was no test done
to support the evidence and testimony that the applicant did infact hold the
weapon and beat the victim with it. Then by not conducting relevant research
and talking to the witnesses or even request underlying studies relied on by the
evidence given by the State, contributed to the trial counsel's ineffectivensess.
See Holmsback v. White, 133 F.3d 1382, 1387-89 (11th Cir. 1998); Knott v. Mabry,
67 F.2d 12-13 (8th Cir. 1982)(holding, "that counsel may be found ineffective
for failing to consult and expert where "there is substantial contradiction in
a given area of expertise," or technical subject matters...to conduct effective
cross-examination"). For this error this reviewing Court should be compelled
to hold a evidentiary hearing and search the record and see that there is
evidence to sustain this complaint.
C. FAILURE TO CALL EXCULPATORY WITNESSES
The accomplice witness Sonya Holder testified that she gave the names
of the other two assailants who were allegedly with the applicant during
the robbery to the Detective Roy Gay, but there was no charges filed on
those two individuals and their names were in the file and if the trial counsel
did infact read or go through the D.A's records he could of called those
41
other two co-defendants and used their testimony to exculpate the applicant.
(RR4: 69).
Brown is entitled to reasonably effective assistance of counsel, thus
a right established by the Sixth Amendment to the United States Constitution,
applied to the States through the Fourteenth Amendment, and recognized in
Art. I §10 of the Texas Constitution and Art. §1.05 of the Texas Code of
Criminal Procedure. State v. Thomas, 768 S.W.2d 335, 336-37 (Tex.App.-Houston
[14th Dist.] 1989); Ex Parte Duffy, 607 S.W.2d 507, 513 (Tex.Crim.App.1980).
~ Texas follows the standard ennuciated in Strickland, in deciding whether
the applicant has recieved effective assistance of counsel. Wilkerson v. State,
726 S.W.2d 542, 548 (Tex.Crim.App.1986). Under that standard the applicant must
establish two things: (1) Counsel's performance was deficient; and, (2) the
deficient performance prejudiced the applicant, if either of the lements
is not established, the contention fails. Rico v. State, 707 S.W.2d 549,
556 (Tex.Crim.App.1983).
An attorney has a professional duty to present all testimony and other
evidence to support the defense of his client. Ex Parte Ybarra, supra at
946. A criminal defense attorney has a responsibility to seek out and do an
interview of potential witnesses and the failure to do do is to be considered
ineffective where the result is that any viable defense available to the
accused is not advanced and the decision to call a witness is generally a
matter of trial strategy, but the failure to interview a witness will be
considered ineffective assistance of counsel when inaction precludes the
accused from advancing a viable defense.
There were these two witnesses that could testify that the accomplice
witness lied to the court about the applicant's invlovement in the offense in
which he was charged, and that testimony at trial would of helped to arrive at
a different outcome.
This reviewing Court will hold that if trial counsel would have secured
the other two individuals he could have discredied the victim's and accomplice
witnesses testimony. He never spoke to them or tried to have them subpeonad
during the course of the trial and never sent anyone to talk to them. This
reviewing court will then characterize that the failure to call any potential
witnesses as a failure to adequately prepare for trial, and not as a strategic
decision. Berry v. Morton, 100 F.3d 1089, 1100-01 (3rd Cir. 1996); and see also
42
Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3rd Cir. 1990).
D. FAILED TO OBJECT TO EXTRANEOUS OFFENSE TESTIMONY
The applicant contends that the record is full of extraneous offense
testimony as announced in Ground For Review No. 6, in which there was never an
objection by the trial counsel and this action caused an actual and substantial
disadvantage of the applicant into recieving a fair trial.
Extraneous offenses are inherently prejudicial and when counsel fails
to object to numerous extraneous offense and prejudicial matters, counsel's
is ineffective. See Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.
1983); Cude v. State, 588 S.W.2d 895 (Tex.Crim.App.1979); Wenzy v. State,
855 S.W.2d 52, 58 (Tex.App.- Houston[14th Dist.] 1993). Generally drug evidencce
has no relevance in a non-drug prosecution. See Couret v. State, 792 S.W.2d
106, 108 (Tex.Crim.App.1990).
Drug evidence and threats as testified to in the instant case was .. then
irrelevant. The first mention of drugs was by the accomplice witnesses testimony
during the presentation of the State's case in chief. And that extraneous an
prejudicial testimony was in direct violation of Tex.R.Evid., 404(b) and 403.
It is a general rule that an accused may not be tried for some collateral crime
of being a criminal in general. Tex.R.Evid., 404(b).
Not every allegation of inefective assistance of counsel, in this case
would justify a reversal. However/ then, the totality of the defense counsel's
representation undermines the court's confidence in the conviction. The Court
of Criminal Appeals has held that counsel is ineffective when he failed to
object to extraneous offense testimony. In Montez v. State, 824 S.W.2d 308,
310 (Tex.App-San Antonio 1992) the Court held, that applicant did not recieve
a fair trial, and the totality of trial counsel's assistance undermined the
court's confidence in the outcome of the trial. Many of the factors exist in
the present case. Specifically, trial counsel must be aware of the impact of
the extraneous offenses and their admission should not be taken lightly. Even
under the strict standard in Strickland, the court has no choice but to find
defense counsel's ineffective assistance led to the introduction of damaging
extraneous evidence such that the court's confidence in the result of the trial
is undermined to the extent that the Court cannot state with reasonable
certainity where the applicant was found guilty of the crimes charged or
the extraneous bad-acts offered by the State.
43
Evidence of extraneous offense was improperly admitted, and reversal
is required, where the probative value of the evidence was minimal and the
prejudical impact high, the required intent for the offense could be infered
from the content, so the State did not need to show the intent and the trial
counsel was infact ineffective for not objecting to the testimony that was
given. Castillo v. State, 910 S.W.2d 124 (Tex.App.-El Paso 1995).
The rule excluding evidence of extraneous offense is based on the belief
that although such evidence shows the applicant's propensity to criminal
conduct, and generally its prejudicial effect overwhelms its probative value
in determining whether the accused committed the crime for which he is on
trial. In the face of a proper objection, evidence of other wrongful acts
is not admissible to prove character of the person to establish that he acted
accordingly regarding the alleged offense, "but in the instant case there was
no objections vocalized." See Montgomery v. State, 810 S.W.2d 372, 386 (Tex.
Criro.App.1991); Lazcano v. State, 835 S.W.2d 654, 657 (Tex.App.-El Paso 1992,
pet. ref'd).
The applicant asserts that an extraneous offense may be admissible,
however, if it has relevance apart from its tendency to prove character
conformity therewith. Evidence which logically serves apart such purposes
that are not objected to the jury will paint a picture in their mind that
the applicant is common criminal with no future rehabilitation.
The applicant's attorney at trial was ineffective for not objecting
to the improper use of extraneous evidence where the applicant had no prior
convictions for the offenses ttestified to and this error was not harmless.
See e.g., Vetelo v. State, 8 S.W.3d 164 (Tex.App.-Waco 2000) Webb v. State,
36 S.W.3d 165 (Tex.App.-Houston[14th Dist.] 2000). The State did not give any
notice of extraneous offenses and the applicant's attorney at trial did not
object and harm is shown because the extraneous offenses improperly bolstered
the the testimony of the accomplice witness and the danger is too great that
the jury would give upward departure on the character evidence of this type
and that is because the applicant might have commited extraneous bad acts
before...he should be givne a larger sentence of the instant charge. This then
created a actual and substantive disadvantage against the applicant and for it
not being objected .to caused the trial counsel to be ineffective.
E. FAILURE TO PRESERVE ERROR.
44
An exception to Strickland's presumption of strategy exist when the
record clearly confirms that no reasonable trial counsel would have engaged
in the complained of conduct of omission. Vasquez v. State, 830 S.W.2d 948,
951 (Tex.Crim.App.1992); Weeks v. State, 894 S.W.2d 390, 392 (Tex.App.-Dallas
1994); Chavez v. State, 6 S.W.3d 66, 71 (Tex.App.-San Antonio 1999), holding
counsel ineffective in light of such a record is not speculation becuase
the deficient performance is confirmed by the appellate record. Vasquez,
supra at 951; Weeks, supra at 392; Stone v. State, 17 S.W.3d 348, 350 (Tex.App.
-Corpus Christi 2000). In other words, Strickland does not require deference
when there is no concievable strategic purpose that would explain a trial
counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 535 (5th Cir. 1985).
In the exception stated earlier the court holds that when there are
"certain exact circumstances that are so egregriously prejudiced...ineffective
assistance of counsel will be presumed." The presumed prejudice is where
there has been an actual breakdown in the adversarial process at trial it
then becomes highly prejudicial and very harmful to the applicant. See Toomey
v. Bunnell, 898 F.2d 741, 744 (9th Cir. 19990).
The Supreme Court has held that [t]he adversarial process protected
by the Sixth Amendment requires that the accused have "counsel acting in
the role of an advocate. Anders v. California, [citations omitted]. The right
to the effective assistance of counsel is thus, the right to the accused
to survive the crucible of a meaningful adversarial testing. [l]f the process
loses its character as a confrontational match between adversaries, the
constitutional guarantee is violated, [emphasis added].
In United States v. Cronic, [citations omitted], the Court recognized
that there are "circumstances...so likely to prejudice thwe accused that
the cost of litigating thier effect in a particular case is unjustified."
Cronic, supra at 658. Th» Court identified that the complete denial of counsel
or the deprivation of effective representation at a critical stage of an
accused:
"circumstances of that magnitude may be present on some occasions when
although counsel is available to assist the accused during trial the
likelyhood that any lawyer, even a fully competent one, could provide
effective assistance is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct at the trial. *
45
Cronic, supra at 659-660.
Texas Rules of Appellate Procedure Article §33.1 provides: "that in
order to then preserve a complaint for appellate review, a party must present
the complaint and obtain a ruling." It is incumbent upon counsel to object
at the earliest possible opportunity. Butler v. State/ 769 S.W.2d 234 (Tex.Crim.
App. 1989).
In order to effectively preserve error after objection is sustained,
counsel must ask for an instruction to disregard and move for mistrial after
the instruction is given. Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim.App.
1985).
The applicant asserts that the trial counsel failed to preserve error
in the record.
Objection to Hearsay Objection to Hearsay
Sustained Sustained
Failed to ask for instruction Failed to ask for instruction
Failed to ask for mistrial. Failed to ask for mistrial
(RR4: 55). (RR4: 56).
Objection to Hearsay and Specualtion Objection to leading questions
Sustained Sustained
Failed to request for instruction Falied to request for instruction
Failed to request for mistrial. Failed to request for mistrial.
(RR4: 53). (RR4: 202-204).
The applicant avers that generally, an isolated failure to object to
improper evidence in itself does not necessarily constitute ineffective
assistance of counsel, but multiple instances to object and have the objection
sustained and failed to get a ruling or ask for mistrial is ineffective
assistance of counsel. See Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App.
1985).
It has been held that isolated instances in the record reflecting errors
of commission or omission do not cause counsel to become ineffective, nor
can ineffective assistance of counsel be established by isolating or then
seperating out one portion of the trial counsel's performance for examination.
Bridge/ supra at 571; Johnson v. State, 629 S.W.2d 731, 736 (Tex.Crim.App.
1981).
Also/ representation is not ineffective simply because, in hindsight
the attorney could have or even should have done something differently. Goodin
v. State, 899 S.W.2d 387, 392 (Tex.App.-Houston{14th Dist.] 1995). Allegations
of ineffective assistance1of counsel must be firmly founded in the record. See
46
Beheler v. State, 3 S.W.3d 182, 185-86 (Tex.App.-Fort Worth 1999). Applicant
takes the position that the record is firmly founded in the record with many
instances of ineffective assistance of counsel, i.e., in accordance with
the above errors of cokmplaints which is so inherently prejudicial that so
specific prejudice need be shown. In the instant case, it is clear that trial
counsel was capable to properly preserve error, he failed in that duty as shown
in the complaint above, and this created an actual and substantive disadvantage
of applicant to recieving a fair trial and trial counsel should be found that h=
denied his client a fair trial.
F. FAILED TO REQUEST SPECIFIC INSTRUCTIONS IN THE JURY CHARGE
The applicant avers that the trial counsel failed in his duty to request
or raise the issue of alibi. Applicant had three (3) witnesses who testified at
trial that stated that the applicant was at his residence at the time the crime
was committed, and the trial counsel did raise the issue or even request and
instruction on the alibi defensive theory-
when the evidence is inconsistent and supports more than one defensive
theory, the applicant is entitled to an instruction on every theory raised, >
even if the defenses themselves are inconsistent and contradictory. Booth
v. State, 679 S.W.2d 498, 501 (Tex.Crim.App.1984); Johnson v. State, 715
S.W.2d 402, 406-07 (Tex.App.-Houston[1st Dist.] 1986).
There is nothing in Brown's records to suggest that he was not entitled
to instructions on defensive theories if it was raised by the evidence. This
reviewing court must consider al relevant information revealed by the record,
including the entire jury charge, the States of the evidence, and the argument
of counsel. VanBrackle v. State, 179 S.W.3d 708, 714 (Tex.App.-Austin 2005).
The defense of alibi arises where there is evidence that the accused
is at a place where he could not have been found guilty of participating in the
offense. Arney v. State, 580 S.W.2d 836, 840 (Tex.Crim.App.1979). A defendant
is entitled to a defensive instruction on every issue raised by the evidence,
regardless of whether the evidence is strong, feeble, unimpeached, or also
uncontradicted. Villareal v. State, 821 S.W.2d 682, 685 (Tex.App.-San Antonio
1991). Even though the applicant contends that alibi is not the type of defense
that entitles a defendant to an istruction. See Holliman v. State, 879 S.W.2d
85, 87 (Tex.App.-Houston[14th Dist.]1994); Green v. State, 928 S.W.2d 119, 125
(Tex.App.-San Anotnio 1996). However, applicant avers that he is entitled to a
47
defensive theory. Also, applicant may rely "on more than one defensive theory."
In fact, a "applicant is entitled to submission of every defensive issue
raised by the evidence. Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984)
Party v. State, 994 S.W.2d 215, 219 (Tex.App.-San Antonio 1999).
Alibi is not a statutory defense and it is not an affirmative defense.
Alibi is not a defense within the accurate meaning of the word, but is a
fact shown in rebuttal of the State's evidence/ therefore, it does not demand
a specific instruction from the court. Furthermore, this reviewing Court
will hiold that failing to secure an instruction on alibi is not necessarily
ineffective assistance of counsel. Zuniga v. State, 733 S.W.2d 594, 598-99 (Tex.
App-San Antonio 1987). Therefore, in this case, defense counsel's failure to
request an instruction on alibi was not, by itself, ineffective assistance of
counsel. However, given that applicant's defense hinged on alibi, it is difficult
to understand why any competent defense counsel would fail to ab least try to
get an alibi instruction.
The Court of Criminal Appeals has held for many decades that "when evidence
of collateral crimes are introduced for one of the various purposes, the
jury should be instructed that they cannot consider against the applicant
such collateral crimes/ unless it has been shown to their satisfaction that
the accused is guilty thereof." Lankford v. State, 248 S.W. 389 (1923). In
other words, a jury should be instructed that they are not to consider any
extraneous acts evidence unless they believe beyond a reasonable doubt that
the applicant committed the act. See Harrel v. State, 884 S.W.2d 154, 157
(Tex.Crim.App.1994). "If a defendant, during the guilt/innocence phase,
ask for a instruction to the jury on the standard of proof required for the
admittance of extraneous offenses, the defendant is entitled to that instruction."
Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996).
Therefore, _if applicant's counsel had requested the jury to be instructed
that they could not consider the extraneous act evidence unless they believed
beyond a reasonable doubt that the applicant committed those acts, the requested
charge should have been given.
Likewise, when the State is permitted to introduce evidence of applicant's
extraneous bad acts for a limiting purpose, the applicant also has the burden
of requesting an instruction limiting consideration of those acts. See Abnor
v. State, 808 S.W.2d 476, 478 (Tex.Crim.App.1991). Applicant has the burden
48
of requesting a limiting instruction at the time the evidence is admitted
as well as requesting a limiting instruction in the charge. See Garcia v.
State, 887 S.W.2d 863, 878 (Tex.Crim.App.1994).
If a applicant so Request this instruction, the trial court errs in
not giving the instruction. The state will argue that the extraneous acts
were admissible for the limiting purpose of showing state of mind, intent,
relationship, motive, and to rebut defensive theories. Therefore, if trial
counsel had requested that the jury be instructed that they could consider
the extraneous acts evidence only if for limiting purposes for which it was
offered, the trial court would have been required to give the requested limiting
instruction. See George v. State, 890 S.W.2d.73, 76 (Tex.GrinuApp.1994)(holds
"if the defendant so requests at the guilt/innocence phase of trial, the trial
court must instruct the jury not to consider extraneous offenses evidence that
was admitted for a limiting purpose unless it believes beyond a reasonable doubt
that the defendant committed the extraneous offenses.'Almanza v. State, 686 S.W.
2d 157, 171 (Tex.Crim.App. 1985).
G. CONCLUSION
To obtain a reversal on the basis of ineffective assistance of counsel
during the complete proceedings at trial, the applicant must show:
(1) that his counsel's performance was so deficient that counsels^must show
that he was functioning at the level of competence guaranteed by the Sixth •'.• •-
Amendment, and;
(2) there is a reasonable probability that, but for counsel's deficient
performance, that the result of the trial would have been different.
Strickland, supra at 695; Hicks v. State, 837 S.W.2d 686, 690-91 (Tex.App.-
Houston[lst Dist.] 1992). The standard of review is quaged by the totality of
of the circumstances.
Tne circumstances behind the complaint created and actual and substantive
disadvantage to the applicant and this reviewing court will hopefully decide to
hold an evidentiary hearing and with the findings of facts and conclusions of
law order a reversal and vacate the sentence.
GROUND FOR REVIEW NO. 9.
APPLICANT CONTENDS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON
DIRECT APPEAL FOR FAILURE TO LITIGATE ALL CLAIMS IN VIOLATION OF THE SIXTH
AMENDMENT OF THE U.S. CONSTITUTION.
49
ARGUMENT AND AUTHORITIES:
A. FACTS
The applicant contends that his appellate attorney Honorable Linda
Icenhauer-Ramirez did hot litigate all the errors that could be claimed
on direct appeal as shown by the argument applied in this memorandum and
application. As this reviewing court can see by the complaint herein can
be raised on direct appeal unless the decision not to raise that issue arises
from a legitimate source and reasonable strategy potential of some advantage
to the applicant. It is clearly established on the record that the victim
and the accomplice witness perjured themselves but appellate counsel failed
to raise that issue. Appellate counsel failed to raise ineffective assistance
of counsel claims, failed to raise defective jury charge issues, etc.
B. APPLICABLE LAW
It is well established that a applicant has a constitutional right to
effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387
(1985); Ex Parte Coy, 909 S.W.2d 927, 928 (Tex.Crim.App.1995); Teague v.
Scott, 60 F. 3d 1167, 1170 (5th Cir. 1995)(the Sixth Amendment right to
effective assistance of counsel applies both to trials and direct appeals).
In analyzing claims of ineffective assistance of counsel on direct appeal,
Texas applies the Strickland standard. See Ex Parte Jarrett, 891 S.W.2d 935,
938 (Tex.Crim.App.1994). Applicant must establish that (1) appellate counsel's
performance was deficient, and (2) due to counsel's unprofessional errors,
there exists a reasonable probability sufficient to undermine confidence in the
outcome. Strickland, supra at 694; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.
App.1986). The ultimate question with respect to ineffective assistance on
appeal is whether a applicant was afforded a meaningful appeal. Olivo v.
State, 918 S.W.2d 521, 526 (Tex.Crim.App.1996); Ward v. State, 740 S.W.2d
794, 799-800 (Tex.Crim.App.1987); Epps v. State, 809 S.W.2d 770, 772-73 (Tex.
App.-Houston[14th Dist-J 1991).
The law is clear that appellate counsel need not raise all claims of
errors in order to be effective. See Jones v. Barnes, 463 U.S. 745, 751 (1983);
Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989). Nor does the law
require that an appellate attorney advance every concievable argument on
appeal that the trial record supports. See Stafford v. State, 758 S.W.2d
663, 674 (Tex.App.-Houston[1st Dist.] 1998)(citing Gray v. Greer, 800 F.2d 644,
50
647 (7th Cir. 1986)). Indeed, it is the process of "winnowing out" weaker claims
on appeal and focusing on those more likely to prevail that is the hallmark of
effective appellate advocacy. Burger v. Kemp, 483 U.S. 776, 784 (1987). As Chief
Justice Burger observed in Jones:
There can hardly be any question about the importance of having the
appellate advocate examine the record with a view to selecting the most
promising issues for review. This has assumed a greater importance in
an era when oral arqument is strictly limited in most courts-often to
as little as 15 minutes-and when paqe limits on briefs are widely; imppsed.
...A brief that raises every colorable issue runs the "risk" of buryinq
good arguments....in a verbal mound made up of strong and weak contentions.
For judges to second-guess reasoanble professional judqments and impose
on appointed counsel's duty to raise every "colorable" claim sunnested
by a client would disserve the verv qoal of vigorous effective advocacy
that underlies [the Sixth Amendment].
Jones v. Barnes, supra at 752-754.
If an issue which was not raised on direct appeal that mav have resulted
in a reversal of the conviction or an order for a new trial, the failure
is preiudicial. Appellate counsel's ineffectiveness can constitute cause
even if counsel's ineffectiveness; did not violate the constitution under
the requirements of the Wainwright standard. It is also reauires the trial
court to review the entire record for significant and obvious errors and
failures.
Appellate counsel's failure to raise claims on direct appeal constitutes
ineffective assistance of counsel and provides "cause" for procedural default.
Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997). Appellate counsel's failure to
raise legally meritorious issues on direct appeal constitutes ineffectiveness
of counsel. Banks v. Reynolds, 54 F.3d 1508, 1515-16 (10th Cir. 1995). Appellate
counsel's failure to raise obvious issues on the record constitutes ineffective
assistance of counsel. Daniel v. Thigpen, 744 F. Supp. 1535 (M.D.Ala. 1990).
Appellate counsel's failure to raise ineffective assistance of counsel claims
against trial counsel on direct appeal constitutes "cause" for procedural
default for trial counsel's inaction. U.S. v.Ex Rel Barnard v. Lane, 819 F.2d
798 (7th Cir. 1987); Grubbs v. Singletary, 900 F. Supp. 425 (M.D. Fla. 1995).
Applicant contends that the failure of appellate counsel did give the
appellant anactual and substantive disadvantage and the court is required
to hold a evidentiary hearing to determine the prejudice caused and order
a reversal and vacate the sentence and order the release of applicant.
51
GROUND FOR REVIEW NO. 10
THE APPLICANT CONTENDS THAT FACTUAL INNOCENCE IS AN EXCEPTION TO THE (ADEPA'S)
ONE YEAR STATUTE OF LIMITATIONS AND/OR IS A GATEWAY FOR REVIEW OF THE APPLICANTS
CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND EVIDENCE IS INSUFFICIENT TO
ESTABLISH THE REQUISITE FINDING OF GUILT IN THIS CASE.
ARGUMENT AND AUTHORITIES:
'Actual Innocence' bears a heavy amount of scrutiny in the American Justice
System, where officers of the Court has already developed a mindset that anyone
and everyone who has been charged with an offense is guilty, no matter the
circumstances, or the evidence. Their objective is to send an accused to prison,
or place him on probation. They have developed an immunity to anyone who pleads
"NOT GUILTY" in any case that is brought before them and God forbid that the
one in thirty-one (31) of every man or woman in the United States is either
in jail or prison or on a supervised release and have not been falsely accused
of a crime due to a scornful and vengeful individual who wants to see a specific
person to suffer by inflicting as much harm as possible.
Has the consciousness of the American people developed a moral attitude
that no matter how lonq a person serves time in prison and paid his debt to
society in accordance with the law, he should never be released? And if he
is released from prison, should he bare the mark of the Scarlett Letter just
because he was released? The Government's Legislative Branch and the American
Judiciary has placed so many safeguards in the law and statutes of the criminal
codes, that it is impossible for a person to prove his innocence and thus
is forvered scarred.
The beginninq consensus of law makers of jurisprudence has been that
"a person is innocent until proven quilty," but, when one stands before the
chosen tribunal, that oriqinal consensus becomes a facade, and is branded
guilty automatically until he can prove his innocence. However, those safequards
that are placed makes it almost entirely impossible to do so. This is an intent
of the Government with the enactment of the AEDPA and other rules.
The creed of the DISTRICT Attorney is to be a seeker of justice and truth,
instead of having a Game Show Host zealousness to destroy an individuals life,
and tearing aprt the fabric of America, the family unit, by taking a human
being and placing him or her in the New Cattle Market of America titled the
Judicial System. They now become a number instead of a human being and a member
of society. It becomes a fundamental miscarriage of justice when a person
52
railroaded by judicial powers in place with questionable evidence, hungry
prosecutors, and disinterested defense attorney's who use shady courtroom
theatrics as major actors in a broadway play and the courtroom is their stage,
biased and prejudical judges, vengeful and spiteful individuals, vho's only
wish is to inflict harm on the premises of revenge, and a jury panel that
only considers an accused's past history to determine his guilt by believing
only the words of the prosecution due to the media's hype that places a plethora
of blame upon the accused.
Actual innocence in this type of application is not itself a basis
for federal Habeas relief; it is however, "a gateway through which a Habeas
applicant must pass to have his otherwise time barred constitutional claims
to be considered on the merits of the newly available or already available
evidence that is presented by the applicant. A applicant may avoid this
bar by demonstrating "cause for procedural default and actual prejudice as
a result of an alleged violation of federal law." Coleman v. Johnson, 501
U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).
However, this bar may also be overcome by a showing that a "failure
to consider the claims will result in a fundamental miscarriage of justice."
Such a fundamental miscarriage of justice may be demostrated by a showing
that "a constitutional violation has probably resulted in the conviction
of one who is actually innocent. Schlup v. Delo, 513 U.S. at 321; Murray
v. Carrier, 472 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986).
To satisfy this standard a applicant must demonstrate that he is "actually
innocent." To demonstrate "actual innocence" it is necessary that the applicant
"show that it is more likely than not no jurist of reason would not have
found applicant guilty beyond a reasonable doubt. Lucas v. Johnson, 132
F.3d 1069, 1076-77 (5th Cir. 1998).
It is highly prejudical when a district court fails to, or refuses
to, address an applicants claim of actual innocence? The applicant avers
that it is important to note that in this regard that "actual innocence"
means "factual innocence," not mere legal sufficiency, even though exculpatory
evidence may be weighed against inculpatory evidence. Clewis v. State, 922
S.W.2d 126, 130, 136 (Tex.Crim.App.1996); Sawyer v. Whitely, 505 U.S. 333,
339, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992).
In Schlup, for example, the court has then held that to sustain an
53
"actual innocence" claim an applicant must show that it is more than likely
not no jurist of reason would have convicted him in light of the new evidence,
or available evidence." That "evidence" is to be evaluated, of course, along
with the "evidence" adduced and then its to consider all the evidence contained
in the trial transcripts. The Habeas Court will make it's determination that
concerns the applicant's innocence in light of all the evidence, including
that which has become available since trial. See Bousley v. U.S., 118 S.Ct. 1604,
1611, 1614, 1615, (1998).
But this kind of evidentiary review is quite different from that in
which the evidence is examined to determine whether, viewing it in the light
most favorable to the verdict, or any rational trier-of-fact could have found
Brown guilty beyond a reasonable doubt. Indeed, one of the most significant
differences between the so-called "factual" and the so-called "legal" or
the so-called "constitutionally" sufficiency • of the evidence standards is
the latter does not permit a weighing of inculpatory or exculpatory evidence.
Because in evaluating a Habeas claim that newly discovered or available
evidence proves that the applicant to be innocent of the crime for which
he was convicted, the courts tasks is to assess the probable impact of the
newly discovered or available evidence upon the persuasiveness of the State's
case as a whole, the Court must necessarily weigh such exculpatory evidence
against the evidence adduced at trial. The Jackson v. Virginia, standard
of evidence sufficiency is simply not appropriate to this purpose. Of course,
any person who has been finally convicted in an alleged fair trial would
not be permitted to wage, a collateral attack on that conviction without
making an exceedingly persuasive case that he is actually innocent which
is one of those spoken of earlier safeguards.
It is thus entirely reasonable to insist, and the courts should continue
to insist, that a applicant for Habeas relief based upon a claim of "actual
innocence" must demonstrate that the newly discovered or available evidence/
if true/ creates a doubt as to the efficacy of the verdict sufficient to
undermine the confidence in the verdict and that it is probable that the
verdict would be different [on retrial].
Applicant must show that "a constitutional violation has probably resulted
in the conviction of one who is "actually innocent." In contrast, under
the Carrier standard the newly discovered or available evidence may indeed
54
call into question the credibility of the witnesses presented at trial — to
sustain a claim of actual innocence should, at a minimum be able to persuade
the Court that the new or available evidence raises a reasonable doubt about
his guilt, because it focuses on the applicant's burden of proof, directs
the Habeas court, as fact-finder, to weigh the newly discovered, exculpatory
evidence or the availabe evidence against the inculpatory evidence offered at
trial for the purpose of determining whether it affirmatively shows that Brown
is innocent.
Rather, the court charged with deciding such a claim shall make a
case-by-case determination about the reliability of the newly discovered
or available evidence under the circumstances. The Court then should weigh
the evidence in the favor of the applicant against the evidence of his guilt.
Obviously, the stronger the evidence of the applicant's guilt the more strength
of the persuasiveness of the newly discovered or available evidence must be.
Accordingly, the Court should hold that, in the exercise of the Court's
post-conviction Habeas jurisdiction under Art. 11.07 of T.C.C*P, the Court's
job is not to review the jury's verdict but to decide whether the newly
discovered or available evidence would have convinced the jury of the accused
innocence.
The applicant avers that to establish the above two-sided argument,
the applicant will present his counter argument, under three points:
(A) Applicant's due diligence to locate and establish evidence of his
innocence,
(B) The credibility of applicant's factual innocence.
(C) Actual innocence is an exception to the A.E.D.P.A.'s statute of
limitations which includes the following two prongs;
(a) Constitutionally, and discussed from, one proceeds the
Suspention Clause of the U.S. Constitution,
(b) Equitable tolling is merited.
Unfortunately, this Court cannot assume that a factual innocence gateway
is simply available to the applicant unless he has been reasonably diligent
and his factual innocence meets the threshold requirement. Both of these
considerations of the law that provides an innocence exception and gateway
and in support the applicant will show the court as follows:
To support applicant's claim, he has attached a graphic exhibit titled
Chron loqical Timeline of Filings. This exhibit does demonstrate applicant's
diligence in pursuing his factual evidence that supports his claim of his
55
innocence, via his numerous filings in an attempt to be timely, and to preserve,
as well as pursue his claims.
Applicant has not "sit on this case." At every possible timely opportunity
he has been diligent in attempting to have the Court's to see this evidence
by filing writs in the State Court, Federal Court, and the Supreme Court, filed
for D.N.A. testing and purchasing his records that explained the many errors that
along with the evidence that proves his innocence in which his trial attorney
failed in-his duty to pursue in trial. See Chronological Exhibit. There was
also the State's delay in not filing his original application in January 2002,
in which also caused a time bar issue. Due diligence is defined by Black's
Dictionary as a fair degree of diligence expected from someone of ordinary
prudence as well as, a continual effort to accomplish something. Accord to
Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999); Coleman v. Johnson, supra at
401.
The applicant avers that his direct appeal was filed on January 29,
2001 and affirmed on July 26, 2001. He then filed a Motion for Extension of time
to file a Petition For Discretionary Review was filed on August 17, 2001, this
was granted until October 26, 2001, the case was issued a mandate on November
9, 2001. Brown mailed his Application for Writ of Habeas Corpus in accordance
with Article 11.07 of T.C.C.P. from his unit on January 27, 2002 in which
was not filed by the Court Clerk until June 4, 2002. There was 129 days that
the writ was in limbo. See Exhibit B, C. The Texas Supreme Court has repeatedly
held that a litigant should not be prejudiced by the Clerk's errors. See e.g.,
Coastal Banc SSB v. Helle, 988 S.W.2d 214, 215-16 (Tex.1999); Williams v. T.D.
C.J., 142 S.W.3d 308, 309 (Tex.2004).
The applicant avers that when the date of the P.D.R. was due was when his
one year limitations period began and would not be up until November 16/ 2002.
See Exhibit M. During the period of time in which he was waiting on a ruling of
his 11.07 writ he wrote several letters at different time intervals to request
the status of his 11.07 writ. See Exhibit E. Brown then filed a petition for
Writ of Mandamus on June 3, 2002, which was denied along with the 11.07 Writ on
September 11, 2002. See Exhibit N>:
While it was once true a Writ of Habeas Corpus could not be "obstructed"
Congress changed this with the enactment of the AEDPA as explained in 28
U.S.C. §2254(d)(l) does not prohibit the Courts from entertaining actions
56
after the statutory limits has passed, instead it merely sets forth relevant
statute of limitations. Now therefore, the statutory language in section
§2254 (d)(1) indicates that congress did not intend the limitations period
to divest federal jurisdiction. Johnson v. Avery, 393 U.S. 485 (1960); Underwood
v. Williams, 131 F.3d 292, 295 (5th Cir. 1998). Instead Congress chose the
intent to the AEDPA limitation amendment into §2254 for the purpose of
"finality of determination" and contains provisions relating to non-jurisdictional
limitations." The Supreme Court has asked the lower courts to exercise care
in the evaluation and dismissal of the Habeas Corpus and the dismissal denies
the applicant of the Great Writ enitrely, risking injury to an impartial
interest in human liberty."
The applicant avers that this is a successive application, there was
no available way to present this argument since the records were not available
in the past. The record clearly states the main reason for the actual innocence
complaint. There was prove brought out by alibi witnesses that showed that the
applicant was not at the crime scene when the offense was taken. The record so
shows that the evidence was brought by a victim who testified to having
sex with the accomplice-witness. since she was fifteen (15) years of age
and giving her drugs and money. You have a accomplice who testified to being
a prostitute who recieved money and drugs in exchange for sexual favors.
The trial court refused to take judicial notice of the alibi witnesses
testimony. State's Exhibit #22 was produced fraudulently by the victim and
the trial court allowed the use of the evidence. The accomplice witness did so
testify that the gun used in the offense went in the residence and left the
residence. Plus, the District Court Clerk on purposely held the first Writ and
Application for a 5 month delay to keep the applicant from filing timely to
keep with the guidelines of the AEDPA.
THE CREDIBILTY OF APPLICANT'S FACTUAL INNOCENCE
In order to make a claim of factual innocence, applicant must present
any reliable evidence that wwas not considered at trial and show that if
it is more than likely that no jurist of reason would have found him guilty
beyond a reasonable doubt." See e.g., Lucidore v. New York State Division of
Parole, 209 F.3d 107, 114 (2nd Cir. 2000)(quoting Schlup v. Delo, supra at 851).
In assessing the adequacy of applicant's showing, the reviewing court is not
bound by the rules of admissibility that would govern at trial...but may consider
the probative force of relevant evidence that was either excluded, unavailable,
57
or unconsidered at trial. Therefore/ new evidence is not limited solely to
the unavailable at trial, as long as it is evidence that the original fact
finder did not consider this approach is consistent with the innocence threshold
newly established in Texas. Ex Parte Thompson, 153 S.W.3d 416 (Tex.Crim.App.2005),
it is a viable and reviewable claim that should be heard on the merits. In
Thompson, Justice Cochran and Holcomb, issued a concurring opinion in which they
formulated a step - by - step process in determining if an innocence claim is
not only credible but likewise merits a new trial.
Applicant offers this proposed formula for the court's consideration/
in view of the case of Ex Parte Thompson. This process includes:
(1) the trial court hears the newly discovered evidence, it assess the
credibility of the witnesses and the persuasiveness of that evidence
and it makes a finding of facts concerning it's assessment of that
evidence, both individual pieces and collectively,
(2) the trial court decides whether that 'new evidence' is both credible
and, by clear and convincing facts that the evidence by itself then
unquestionalby proves the applicant's innocence, should the trial
continue,
(3) the trial court compares the 'new evidence' with the 'old evidence'
from the original trial or other proceedings in doing so/ the trial
court might envision the situation as if the original jury trial
took place all in one morning,
At that point the jury believed the States evidence, returned it's guilty
verdict and heard all the punishment evidence. The jury took a lunch break
afterward and that same jury returned and heard all the new evidence, evidence
that the court has already found, as a matter of fact, to be credible and
establishes innocence, and was asked to render a second verdict after hearing
the morning and afternoon testimony. It is only if that jury acting on an
intentional basis after hearing and believing both sets of evidence, would
necessarilly acquit the applicant (because the 'old and new evidence' cannot be
reconciled rationally), that the trial court may conclude that the applicant
has unquestionably established his innocence of the crime for which he was then
convicted of. Thompson, supra 417.
To summarize, the applicant compares not new or old evidence but the only
relevant evidence that was adduced at trial.
Sonya Holder, a known prostitute and with a drug addiction to crack
cocaine, applicant's accomplice-witness/ testified that she been with the
applicant on September 29, 30, 1999, she was with applicant, applicant's
friend Sean and applicant's cousin Quincy and they discussed robbing the
58
the victim. Tney asked Holder if she knew where the victim kept his drugs
and when she said yes, they asked her to help them. (RR4: 46-48). Holder
related that they drove to the victim's home which was located in his automotive
repair shop. She knocked on the front door and when the victim answered
the door, she told him that she needed to use the restroom.
The others were waiting off to one side. Holder testified that she
entered the victim's small apartment and proceeded to the bathroom. Holder
testified that when she returned from the bathroom she saw applicant holding
the victim by his neck up against the wall and Quincy was holding a gun
to the victim's head. As she walked by, the victim asked her for help but
she walked outside and got in the car. (RR4: 52-54).
Holder testified that at about five minutes or ten minutes later Quincy
returned to the car. They were later joind by applicant and Sean who was
holding the pistol. Applicant was allegedly holding a 12-guage shotgun taken
from the victim. Holder also noticed that the applicant had some blood on
his shoes. Applicant was allegedly have said that they had pistol-whipped
the victim and they were going to kill him because he knew who Holder was.
Applicant was allegedly to have said he had tried to shoot the victim with
the .22 pistol which Sean had but it got jammed. Then he had tried to shoot
victim with the 12-guage shotgun but it also jammed. (RR4: 55-63).
Holder testified that they drove to a friend's house where applicant
wiped the blood from his shoes. They then drove to applicant's cousin's house
where applicant allegedly hid the shotgun and the pistol. Later he allegedly
sold the shotgun to someone in exchange for crack cocaine. When applicant
allegedly returned with the crack cocaine, they smoked it. (RR4: 63-65).
Holder testified that night after the robbery, applicant threatened to kill
her if she told anyone about the robbery. On cross-examination, Holder testified
that applicant has medium to dark skin, wears a mustache and is age "thirty-
Something." (RR4: 79). (Applicant does not have a cousin named Quincy).
The victim Pete Arevalo, confessed to having sex with the 21-year old
Holder for five years since she was the age of 15 or 16 years of age therefore
committing aggravated sexual assault of a child. He also testified to giving
her money and drugs which he confesses to drug dealing. (RR4: 211-238).
During the case-in-chief the defense brought three (3) defense witnesses
who are alibi witnesses for the defense who can attest to the applicant being
59
at home during the offense in question.
Margaret Walker, the applicant's girlfriend at the time of the offnese
testified on direct examination that on September 30, 1999, applicant worked
on her car installing a new engine. The new engine was delivered at around
9:00 p.m. on September 29th, and applicant was still working on the car when
she left for work at 4:00 a.m. the following morning October 1, 1999. (RR5:
6-28).
Steve Michaelenko/ applicant's neighbor, also testifed that around
September 29, or September 30, 1999, applicant was installing a new engine
in his girlfriend's car. He also testified that that applicant worked four or
five nights in a row. (RR5: 28-38).
Stefan Michaelenko, Steve's son, aslo testified that he remebered accused
working on his girlfriends car all night long one night towards the end of
September, 1999. (RR5: 43-51).
As the Supreme Court has stressed, "actual innocence" means "factual
innocence" and not merely legal issues and ideas, even though this is an
integeral relationship between the two. Bousley v. United States, 113 S.Ct. 1604
(1988). And, as above the applicant has demonstrated the existence of a factual
link between the two. Now for the benifit of the court's closer consideration
applicant will explore the facts and issues in depth.
FACTS
The applicant was charged, indicted and convicted of the offense of
aggravated robbery. The State pleaded in the indictment that the applicant
"threatened" to cause serious bodily injury to the complainant while seeking
to prove applciant actually "caused" serious bodily injury. The complainant
described his assailant as a light-skinned black male, between the ages of
18 to 20 years of age.
The applicant is a dark-skinned black male, in his thirties, and frequents
a beard and mustache. (RR4: 12-13, 79, 172). It is significant to note that the
actual perpetrator of the offense was specifically and pointedly described as
a light-skinned black male, between the ages of 18 to 20. (RR4: 106-108).
The victim's description of the light-skinned attacker never waivered
or changed. (RR4: 170). The investigating detective in the case, Roy Gay/
testifed that the victim described to hin the perpertrators as one being
light-skinned and age 18 to 22 and the other being very dark skinned. (RR4:
14). Clearly, the victim distinguished between the complexion of the two
60
of his attackers. On cross examination, Dectective Gay testified the victim told
him a light-skinned attacker, a voung male between the aqe of 18 to 22, is the
one who beat him with the pistol and then took the shotgun away from him and he
left with it. Regarding the alleged dark-skinned male who partook in the
robbery, Dectective Gay testified that the victim told him that he did not
get a good look at the second individual and did not feel like he could identify
him. (RR4: 170-172).
The victim, during his testimony, attested to being shown a photo line
up at his place of business by Detective Gay, and he specifically picked
out the applicant in the tainted photo line-up, "That is the light-skinned
one of the three who robbed me." Afterwards, the victim signed and affidavit
indicating he picked out the applicant. (RR4: 154-158). The complainant made it
clear that he could not identify the other two robbers. (RR4: 170-172), but on
further testimony he stated that the light-skinned one is the one he struggled
with, alleged to be the applicant. On cross-examination, Detective Gay admitted
that the applicant's picture was over exposed to show him to be lighter skinned
that the other five (5) people in the photo line-up. (RR4: 12-13).
Since the victim described his attacker to Detective Gay to be a light-
skinned black malebetween the age of 18 to 20, the Detective clearly as
alleged by the applicant overexposed the picture to comport with the complainant
intitial description, making it all but inevitable for the complainant to pick
out the applicant during the tainted photo line-up. As guidance to this Court,
and helpful in its analysis to applicant's claim of the corrupting effect
of the photo line-up against the eventual in-court identification, the trial
court posed an important question to Dectective Gay:
"The Court: What about the question. Do you see him as lighter than all
the others?"
"The Witness: Yes, sir, from the picture, he is much lighter but that's
the only picture I had of him and that's what I [t]hought
he looked liked." (RR4: 15).
Clearly, Detective Gay went to the victim's place of business, convinced
he had the perpetrator of the robbery and attack, and showed the applicant's
photo as much lighter than all the other photos to make it all but inevitable
for the complainant to pick out applicant. Due to the tainted and corrupting
out-of-court photo line up.
61
During the eight (8) month interval between the offense and trial,
the victim admitted to visiting Sonya Holder several times while she was
in jail for this charged offense, and placing money on her books for her
use. (RR4: 224-226). Said visits by the victim of a crime was clearly very
impermissible. The applicant asserts that it was during these visits that
the evidence shifted all against him, and not the real perpetrators, which
included the light-skinned black male between the age 18 to 20. In addition,
and significant to applicant's position, Sonya Holder attested to recieving
testimonial immunity in exchange for her testimony and it was her hope she'll
recieve probation, in spite of having a prior felony, for being the master
mind in the robbery against the complainant. (RR4: 39-40, 72, 88). Sonya Holder
subsequently recieved probation for her part in the offense and the applicant
was the sole one punished and sent to prison.
The applicant presented alibi testimony, seeking to prove and establish
his whereabouts at the time of the offense, and that not only is he a victim
of irreparable misidentification, but that the witness Sonya Holder presented
clearly perjured and fabricated testimony. The applicant presented three
(3) witnesses wo all testified to the applicants whereabouts at the time
of the robbery. Witnesses Margaret Walker, Steve and Stefan Michaelenko all
testified that the applicant, on the date and time of the offense, worked
on Margaret's car, and worked all night on her car, installing a new engine.
Margaret testified that the applicant was still working on her car when she
left for work the following morning at 4:00 a.m. (RR5: 6-19, 28-34, 43-49).
In light of the above, the applicant asserts he comes inder the 'actual
innocence' provisions of Schlup v. Delo, [citations ommitted], and that due
process would best be served for the applicant by this Court entertaining the
application to alter a fundamental miscarriage of justice from prevailing into
the conviction of an innocent man.
ACTUAL INNOCENCE IS AN EXCEPTION TO AEDPA STATUTE OF LIMITATIONS.
Constitions of both Texas and the United States embodies the Due Process
and the Suspension Clause, and Equitable Tolling is merited in this case.
The assertions of actual innocence are currently catagorized as Herrera-type
claims or Schlup-type claims. Herrera v. Collins, 113 S.Ct. 853 (1993); Schlup
v. Delo, 115 S.Ct. 851 (1995). These actions have been adopted into State law
in Texas, See Ex Parte Elizondo, 947 S.W.2d 202, 208 (TEx.Crim.App.1996); Ex
Parte Franklin, 72 S.W.3d 671 (Tex.Crim.App.2002).
62-
A Herrera-type claim involves a substantive claim in which the applicant
asserted a bare claim or a free standinq claim of innocence based on newly
discovered evidence, and ont the other hand, is a procedural claim in which the
applicant's claim of innocence does not alone provide a basis for relief but is
tied to a showinq of consitutional error at trial. Schlup, supra at 314.
Habeas Corpus is the proper vehicle for actual innocence claims- "The
principle purpose of the writ of habeas corpus is to serve as a bulwark against
convictions that violate fundamental fairness." Engle v. Tanac, 102 S.Ct.
1568 (1982); Wainwriqht v. Sykes, 97 S.Ct. 2497 (1977). The truth is that
courts are made up of fallible people, not machines or dieties but rather
those creatures that are prone to error type people. And, Habeas relief is
based upon the principle that "in a civilized society, the Government may
be held accountable to the judiciary for a man's inprisonment; if the requirement
of law, the individual is entitled to his immediate release, and claims of any
actual innocence raises issues of constitutional magnitude." Elizondo, supra at
204.
This principle is assential in a constitutional system. "After all,
the central purpose of any system of Criminal Justice is to convict the guilty
and free the innocent." Herrera, supra at 339; U.S. v. Nobles, 95 S.Ct. 2160
(1975). The presumption of innocence is afforded throughout his entire trial
and is rooted in American Jurisprudence and tradition. Kirby v. U.S., 19
S.Ct. 574, 577 (1896).
"A criminal process becomes deficient when it offends some principle
of justice rooted in the traditions and conscience of our people as a hole
to be ranked as fundamental." Medina v. California, 112 S.Ct. 2572 (1922)
quoting Patterson v. New York, 97 S.Ct. 2319 (1977). For all practical legal
purposes, habeas corpus is the last judicial inquiry intto the validity of
a criminal conviction, and the final opportunity, of the courts to correct
their inevitable errors, as well as give recourse to the innocent. This is not
to say that either the District Attorney's or the Court's are in any evil
or cruel, however, applicant would ask this reviewing Court to take notice
of judicial or adjuducative fact(s), for example, pursuant to Rule 201 of
the Federal Rules of Evidence titled Judical Notice of Adjudicative facts,
applicant asserts the facts listed below are within the scope of the rule
and merit notice is that (1) the facts are generally known, (2) capable of
accurate and ready determination by reason to sources whose accuracy cannot
63
reasonably be questioned, and is mandatory when the court is supplied the proper
information.
Applicant argues that case law supports this position of the court
taking judicial notice of facts that could influence the outcome of the trial,
hearing, or decisions of the court. These Courts include/ Ennis v. Dupree,
136 S.W.2d 702 (1964); Clayton v. Remmer, 136 S.W.2d 562 (1964) and specifically
in criminal proceedings, People v. Mayer, 45 P. 860 (1896); Ross v. United States,
374 F.2d 97 (8th Cir. 1967).
And, this issue specifically relates to the Mens Rea of people involved
in the case that while not intentionally have made an effort to decieve others
have nonetheless demonstrated a mindset conductive to arriving at a conclusion
other than the truth. Specifically the applicant asserts that the facts the
Court must take judicial notice that includes the following, (1) the efforts
of law enforcement officials to "stop crime" is highly competitive, and in
support United States Supreme Court Justice Day noted in the landmark case
of Weeks v. U.S., 34 S.Ct. 344 (1914), that "the tendency of those who execute
the criminal laws of the country to obtain convictions by means of unlawful
seizures and enforced confessions, the letter often obtained after subjecting
the accused person to unwarranted practices that are destructive of the accused
rights secured by the Federal Constitution should find no sanction in the
judgments of the courts."
(2) There exists within the Great State of Texas literaly dozens of
agencies charged with law enforcement of State and Federal Law. (3) At every
agency encourages citizens to do so in an effort to reduce criminal activity
and investigate allegation^ of wrong doing. (4) While generally speaking
of law enforcement agents may no longer act as Justice Day suggested and
use unlawful means, to achieve there ends, the competitive nature of these
agencies still exist. (5) Currently there are numerous victims rights lobbyist
registered with the States of Texas placing pressure under the Legislative part
of the Government to eradicate crime any way possible. Applicant was arrested
and found guilty of Aggravated Robbery and convicted for 32 years in the Texas
Department of Criminal Justice. It was not because of his participation if any
it was because a 60 year old man who admitted to having sex with a 21 year old
prostitute for 5 years trading the sex with money and drugs, but the State does
not want the jury to look at the private life of Pete Arevalo, it wants the jury
64 .
to concetrate on the applicant because of his past which is stereotypical of a
prosecutor wanting to secure a conviction at any cost no matter that the accused
had alibi witnesses who testified that he was nowhere near the victim on the
day and time in question.
The victim admitted that he was committing crimes of sexual assault
of a child and drug distribution. The accomplice witness Sonya Holder stated
that the gun in question used to pistol whip the victim was taken out of the
home as it was taken in. The victim manufactured evidence which continues to
show that he had a propensity to committ crimes but he was never prosecuted due
to his alleged victimization by the accused.
Habeas Corpus is a "Writ Of Right," as according to U.S. Constitution
Article I §9, nor is the access to the courts via this writ of right be denied.
Johnson v. Avery, supra at 485. "Section §2254 does not prohibit the courts
from entertaining actions after the statutory limitations passed, instead
it merely sets forth relevant statute of limitations. Therefore, the statutory
language of Section §2254(d)(l) indicates that Congress did not intend the
limitations period to divest federal jurisdiction." Recent important decisions
that are relevant to Texas and may impact this claim of actual innocence
thus includes, Detkey v. Haley, 124 S.Ct. 1847 (2004); Enqle v. Issac, 102 S.Ct.
1558 (1982); Murray v. Carrier/ 106 S.Ct. 2639 (1986); Finley v. Johnson/ 243
F.3d 215 (5th Cir. 2001); Dowthitt v. Johnson, 230 F.3d 733 (5th Cir. 2000).
These cases involve the hearing of actual innocence, and applicant would now
discuss the inter-relationship of these cases under the next section.
CAUSE AND PREJUDICE
In Engle, the Court formulated a two prong test and approach to dealing
with defaulted claims in State Courts. Any applicant bringing actual innocence
claims to federal and State courts after procedural default must demonstrate
cause and prejudice before obtaining relief. Here we also learn, "while the
nature of the constitutional claim may affect the calculation of cause and
prejudice, it does not alter the need to make a threshold showing." In summary,
this is explained that the indigent, pro-se litigant, must explain why his
claim was defaulted, thus, showing cause and showing how he was harmed by its
prejudice. In Enqle, the test was applied to a capital murder trial where
the main default was failure to object to impriper jury instructions. In
Murray, the Court decided they liked the cause and prejudice test as well and
they applied it to a defaulted discovery claim, but agreed that the claim was
subject to dismissal because it failed to establish cause for default.
65
They also introduced some other radical ideas, "showing that actual
or legal basis for claim was not reasonably available to counsel, or that
some interference by officials made compliance with State's procedural rule
impracticable, would constitute cause for procedural default. Ineffective
assistance of consel is cause for procedural default, but Exhaustion Doctrine
generally requires that such claim must be presented to State court's as
independant claims before it may be used to establish cause for procedural
default."
And the most important of these issues is that a "showing that actual
or legal basis for claim was not reasonably available to counsel, or that
some interference by officials made compliance with the State's procedural
rule impracticable, would constitute cause for procedural default." Also, if a
litigant can show that things were kept secret from him, the basis of the claim
was beyond his knowledge then relief might be available.
In Haley, the Court addresses the idea of expanding the "actual innocence"
claim to non-capital cases. Oddly, they declined to do so and reversing the
5th Circuit case saying that Federal Courts must first address all non-default
claims. The federal and State courts will not entertain procedurally defaulted
constitutional claims in application for Habeas Corpus absent showing of cause
and prejudice to excuse the default, unless Habeas Corpus applicant can rightly
demonstrate that alleged constitutional error has resulted in conviction of who
is actually innocent of underlying offense.
In Finley, the prosecution failed to disclose highly prejudicial evidence
exculpatory in nature in violation of Brady. Here Texas's abuse of writ doctrine
acted as a procedural bar and demonstrated a "cause" sufficient to meet the one
standard, and the innocnece demonstrated by the Brady evidence met the prejudice
test and represented a "fundamental miscarriage of justice."
In Dowthitt, applicant argued that affidavits of mental health experts
demonstrated denial of right to counsel due to failure to present mitigating
defense based on mental illness. The court refused to find weither cause
and prejudice and held that no evidence of actual innocence was presented,
and so the applicant was promptly killed. Because these cases are very instructed
regarding the process of how the law and local courts should review these
claims they are cited and included as suggested reading, pursuant to the
above, applicant would like to show the court as folows:
66
CAUSE FOR PROCEDURAL DEFAULT
Applicant asserts that he suffered procedural default of the AEDPA
one year rule, and is therefore procedurally barred from review and this was
caused by the miscalculation by the courts on when equitable tolling was to be
applied. As explained earlier in this memorandum that the applicant;'s first-
Habeas Corpus application equitable tolling was defaulted due to the Court Clerk
of Travis County failed to file the application when they recieved it of the 31st
of January 2002. The first application was mailed from the Jordan Unit on January
27, 2002. See the following:
Appeal filed January 29, 2001
Appeal affirmed July 26, 2001
Motion for Extension of time to file PDR. August 17, 2001
Extension of time granted until October 26, 2001
One year limitation period ends November 16, 2002
Mandate issued November 9, 2001
Application mailed January 27, 2002
Court recieved January 31, 2002
Clerk filed June 26, 2002 150 days passed
Writ of Mandamus filed June 3, 2002
Certificate of service on mandamus May 29, 2002 misconstrued date
Application and Writ of Mandamus Denied September 11, 2002 223 days total
Petition for §2254 filed March 7, 2003 177 days
Equitable tolling days left 46 days
Decision on §2254 (Time Barred) April 11, 2003
Applicant recieved ineffective assistance of counsel for failre to provide expert
witness, failure to call exculpatory witnesses, failed to object to extraneous
offense testimony, failed to preserve error, failed to request to specific jury
charge instructions, failed to object to jury charqe- Applicant recieved the
ineffective assistance of appellate counsel for failure to litigate all available
claims, including not arguing ineffective assistance of counsel which is cause
in itself.
PREJUDICE PROVIDED BY THE TRIAL COURT
Applicant asserts that he is actually innocent of the crime and he was
convicted of aqqravated robbery and was prejudiced by the State by the usinq
of manufactured evidence by the victim, perjury by the accomplice witness and
the tainted in-court identification of the applicant. Applicant provided alibi
witnesses that showed he was in a different place at the time of the offense in
which the court and the jury never considered due to the past of the applicant.
As further explained in this memorandum.
IN THE CASE AT BAR
67
The applicant avers that he did not have his trial records until January
of 2009, when he was able to brinq toqether the finaces to purchase the record
and the applicant had only the appellate brief to go on for his past filinqs.
This is why the applicant is asking the court to alow him to file a successive
writ in order to exhaust these errors and prove his actual innocence. Habeas
Corpus is a unique civil action that incorporates some aspects of criminal law,
in which the Second Circuit Court of Appeals has used the Medina standard to
determine whether a procedural rule governing federal law related to Habeas
Corpus in which violated the Due Process Clause. See Triestman v. U.S., 124
F.3d 361, 379 (2nd Cir. 1997). Applicant request that this reviewing Court to
adduce a findig of fact and conclusion of law concerning what standard of
review it had adopted to guage the actual innocence claim made here by the
applicant* Some Habeas Courts have suggested that a complete procedural claim
of actual innocence would raise significant questions under the Due Process
Clause, the Eighth Amendment, and the Suspension Clause of the U.S. Constitution.
See Ludicore v. New York, 209 F.3d 107, 114 (2nd Cir. 2000).
ACTUAL INNOCENCE HA A CONSTITUTIONAL DIMENSION
The Supreme' Court has observed that "concern about the injustice that
results from the conviction of an innocent person has long been at the core
of our criminal justice system." Schlup v. Delo, supra at 851- Likewise
the Supreme Court has stated that it is a "fundamental value determination of
our society that it is far worse to convict an innocent man than to let a
guilty man go free." In Re Winship, supra at 1068. In several cases including
Herrera, Murray, and McCleksy, the Supreme Court has cited a constitutional
factor to 'actual innocence' and consistently cited the existence and exception
to bar from review where a applicant's lack of compliance with some procedural
requirement would otherwise bar review. See Bousley- v. U.S., supra at 1604;
Schlup, ibid. "It is curious that there exists a question of what area of the
constitution is impacted by 'actual innocence* in view of the procedural bar
os one of Congress making in §2254{d)(2)," in that, while it is the Fifth
Amendment that clearly governs actions of Congress.
It is the State that applicant alleges to have violated Due Process,
by the continued incaceration of an innocent man. The Court held in Alexander
v. Keane, 991 F.Supp. 329 (SDNY 1998), questions the applicability of the
Fifth and Eighth Amendment, explaining "it is not clear how either the Eighth
Amendment (of for- that matter, the Fourteenth Amendment Due Process Clause)
68
applies as when as here> a state is imposing the punishment, but it is access
to the federal courts that is sought." The Alexander court concluded that
the only constittional issue raised by the applicant's claim of actual innocence
was the 'suspension clause' [emphasis added] See Art- I §9 CI.2 of the United
States Constituion.
'••• Courts have benn hesitant to address the 'Constitutional Dimesion of Actual
Innocence' if it may reasonably construe (that) statute to avoid constitutional
question. See Arnatt v. Kennedy, 94 S.Ct. 1653 (1974); Wainwright v. Sykes/ 97
S.Ct. 2497 (1977). Therefore, equitable tolling is merited as with 'actual
innocence' and 'miscarriage of justice' exceptions to other procedural bars to
review, a toll for actual innocence would be consistent with AEDPA and it's
objective of avoiding undue delay and promoting finality. See Calderon v.
Thompson, 118 S.Ct. 1489 (1998). The miscarriage of justice exception is then
altogether consistent—with the AEDPA's central concern that the merits of
concluded criminal proceedings not to be revisited in the absence of a strong
showing of actual innocence. Actual innocence also has a^statutory basis in the
§2254(d) sections as it allows for relief invited by Governmental delay.
CONCLUSION
Applicant asserts that the delay along with the other factors listed
in this argument needs am evidentiary hearing to have the issues addressed
by the courts with the findings of facts and the conclusions of law to determine
the merits and order a reversal.
GROUND FOR REVIEW NO. 11
THE APPLICANT CONTENDS THAT THE APPELLATE COURT MISAPPLIED THE STANDARDS
OF NEIL V.. BIGGERS IN THE AFFIRAMTION OF THE APPELLATE REVIEW.
ARGUMENT AND AUTHORITES:
:-> The applicant contends that the appellate court misapplied the standards
of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972). See Brown v. State, 64
S.W.3d 94-(Tex.App.-Austin 2001). The State Court relied on the states cases of
Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Loserth v. State, 963
S.W.2d 770, 771 (Tex.Crim.App.1998). As the standard of review for a ruling on
a "Motion to Suppress An In-Court Identification" due to an impermissible and
suggestive pre-trial identification procedure, the Neil v. Biggers, five (5)
factors were cited but not adequatley applied. The State Court admitted that
the third prong of Biggers, (The accuracy of the prior description) was not
69
but sought to justify the other four factors which all are interconnected and
stemmed to the initial description given by the victim.
Detective Gay, who conducted the photo-lineup, during questioning from
the trial court, testified that applicant's picture was much lighter than
the other five pictures, (RR4: 15), because he [t]hought that's how the accused
looked. Detective Gay further testified that in spite of the victim's assertion
and unwavering statement that his attacker was a light-skinned black male
between the age of 18 and 20, (which is what the applicant believes promted the
detective to display the picture of the applicant much lighter than the other
five), that after seeing the applicant for the first time at trial, he realized
that the applicant has "very dark, black skin," (RR4: 12-13).
Said photo of the applicant/ being much lighter than the others, made it
easily distinguishable, and all but inevitable for the victim to pick out the
applicant in the lineup. Applicant respectfully request for this reviewing
court to examine State's Exhibit No. 1 the photo lineup, to decide for itself
whether or not the same was impermissibly suggestive. Said practice by vigilant
police officers has been long condemned by federal law, as defined by the U.S.
Supreme Court. See Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967 (1968).
Said constitutionally infirmed procedure made the subsequent in-court
identification unreliable. See Mason v. Brathwaite/ 432 U.S. 98, 97 S.Ct.2243
(1977). The facts in the instant case creates a very substantial likelihood
of irrepairable misidentification. (See the five (5) factors of Biggers,
infra, for guidance). Said factors, weighing against the corrupting effect
of the pre-trial identification procedures, clearly establishes constitutional
error. The five (5) factors are as follows:
(1). Adequate opportunity to view the applicant.
Even though the victim contends he had adequate opportunity to
view his attacker, alleged to be applicant, he clearly described
the attacker he viewed as someone who was light-skinned and between
the age of 18 to 20, but in actuallity the applicant was in his
thirties, and wore a beard and mustache.
(2) The witness's degree of attention.
The victim contends he stood face-toface with his attacker, yet
he still rendered a description shortly after the incident of
his attacker as someone that was other than the applicant. Detective
Gay testified that the victim told him that he did not get a
good look at the second individual and did not feel like he could
identify him. However, he knew that the second individual was
very dark. (RR4: 170-172).
70
(3). The accuracy of the witness's prior description.
The initial and unwavering description of the attacker as compared
to the applicant's description is clearly erroneous, and is acknowledged
by the State Court-
(4). The level of certainty.
The victim asserted he was certain applicant is the attacker
and it is apparent the impermissibly suggestive pre-trial tainted
identification in court alleged a 'certainty' that should be then
weighed against the obvious "uncertainty" of a teen-aqed liqht-
skinned black male matching the applicant, who is a dark-skinned
black male in his thirties and wears a beard and mustache.
(5). The length of time.
A full eight (8) months had elapsed from the time of the offense
and applicant's tainted in-court identification. For a full eight
(8) months, the victim, (based on the photo which depicted a
light-skinned over exposed picture of applicant), had fixed in
his mind that his attacker was a young, light-skinned black male.
Even though the Detective was shiocked at the applicant's actual
description and appearance which was opposite the description
the victim shared with him shortly after the incident.
The State Courrt clearly erred in concluding the Neil v. Biggers factors
were satisfied. See Brown v. State, supra, at 101.
Consequently, the State Court's decision in denying the applicant's
relief sought was contrary to clearly established federal law, as determined
by the Supreme Court. Williams v. Taylor, 120 S.Ct. 1495 (2000); Neil v. Biggers,
supra; Manson v. Braithwaite, supra; Simmons v. U.S., supra, [citations ommitted].
Clearly, the State unreasonably applied the factors of Biggers, which
is the controlling standard of review, against constitutional violation of
the tainted indent!fication proceedings against the applicant. Said ruling
and constitutional error, discussed establishes a "strong probability" the
resulting conviction is againt one who is actually innocent of the charqed
offense, and that applicant, being a victim of irrepairable misidentification
is not the 'person' who committed the underlying offense which is the construct
of Schlup v. Delo. Consequently, this Honorable Court should grant an hearing
on the evidence presented with the findings of facts and conclusions of law in
the determination as to the principles of finality and comity "must yield to
the imperative of correcting a fundamentally unjust incarceration." The Court
will find that there is evidence in the record that clearly shows innocence.
71
GROUND FOR REVIEW NO. 12
THE APPLICANT CONTENDS THAT THE STATE FAILED TO OBJECT TO THE COURT'S CHARGE
THEREBY FAILED TO PRESERVE ERROR FORAPPELLATE REVIEW WHICH SUSTAINS THE
IN VIOLATION OF APPLICANT'S DUE PROCESS RIGHT OF LAW AND DUE COURSE OF LAW
RIGHTS AND DENIED HIM A FAIR TRIAL.
ARGUMENT AND AUTHORITES:
A. FACTS
The applicant avers tha the hypotheticaliy correct jury chage it had
written was errornoues and that the State as well as the defense are given the
opportunity to object to its contents and when the State fails to object it is
a violation and the applicant is harmed because the hypothetical correct jury
charge is what the jury goes by to make their determination as to the way they
are to treat the case during deliberation.
B. APPLICABLE LAW
The trial court was required to give accomplice-witness instruction
as to the witness Sonya Lee Holder after the guilt and innocence phase of the
trial and the trial court was obligated to instruct the jury about the present
prohibitions of Article 38.14 of the Texas Code of Criminal Procedures. See
Martinez v. State, 163 S.W.3d 92, 94-95 (Tex.App.-Amarillo 2005). As the opinion
and mandate was issued the State failed to file any motions for rehearing, or a
motion to recall mandate nor did the State in any way challenge the correctiveness
of the ruling given as to the accomplice. "When time provisions have expired
without further appeal from the decision of the Court of Appeals, and mandate
has been issued without any motion to recall having been filed, decision
of the Court of Appeqals is final and must be enforced. Texas rules of Appellate
Procedure, Rules 18, 51; Gonzales v. State, 904 S.W.2d 175 (Tex.App.-San Antonio
1995); Gainer v. State, 636 S.W.2d 15, 16 (Tex.App.-Corpus Christi 1982).
At trial the State was presented with the hypothetical correct jury
charrge, the State did not object knowing that it was incorrect nor did they
request any special instructions be given. However, the applicant claims that
the courts charge provided the jury with an erroneous instruction. A party
"should not be permitted to waive, consent to, or neglect to complain about
an error at trial." Pirtle v. Gregory, 629 S.W.2d S.W.2d 919, 920 (Tex. 1982).
The State at trial failed to object, thus preserve this issue that of the
Court's Charge provided an erroneous instruction. To preserve a complaint
72
for appellate review, a party must make a timely objection, request, or motion
with sufficient specifity to apprise the trial court of the complaint. T.R.A.P.
Rule 33.1(a); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex.Crim.App.2002); See
Nolan v. State, 102 S.W.3d 231 (Tex.App.-Houston[14th Dist.]2003).
In the State of Texas rules require that parties object at trial in
order to preserve error for review on appeal. Saldano, supra at 886; T.R.A.P.
33.1(a), as well as under the Texas procedural rules, the failure to raise
a complaint on appeal; and procedural rules state that any complaint to a
jury charge is waived unless specifically included in an objection. T.R.A.P.
33.1(a); Tex.R.Civ.P. Rule 274; In Re B.L.D., 113 S.W.3d 340, 349 (Tex-2003)
(Texas Rules on Preservation). Of the three rules, the State failed in each
and every way. Had this been the applicant, he would have been told "Appellant
did not object, thus failed to preserve error for appellate review," the State
holds no different status as that of the applicant. In 1987, when the Legislature
amended the constitution of Texas they qave the State the right to appeal,
the State finally attained the full status as an appellant. See Ex Parte
Taylor, 36 S.W.3d 883, 886-87 (Tex.Crim.App.2001). The state has not cited and
no where can it be found anywhere in the appellant record or trial record that
the State raised the issue in the trial. Even if the State had preserved this
issue in trial, the State has waived error by failing to adequately brief it
on appeal. To present an issue for appelate review "the brief must contain
a clear and concise argument for the contentions made with appropriate
citations to authorities, and to the record. Tex.R.App.P. 38.1 (h).
The State did not present a sinqle arqument or citation in support
of this issue. The State did not address any of the governing legal principle
or applied them to any of the facts of the case regarding this issue. See King
v. State, 17 S.W.3d 7, 23 (Tex.App.-Houston[14th Dist.] 2000, pet. ref'd). The
applicant avers that simply put, the State, at trial failed to object to
object to the alleged error in the court's charge thereby failing to preserve
the error for appellate review, had in fact this had been an error; the fact
remains that at trial no objection was made on the hypothetical correct jury
charge so that applicant or trial court could correct such. This fact and
others denied the applicant a fair trial because he could do nothing until
now, this issues was never brought up. The Texas Court of Criminal Appeals has
recognized two general policies for requiring specific objections. "First,
73
a pecific objection is required to inform the trial judqe of the basis of
the objection and aafford him the opportunity to rule on it." In applicant's
case he was denied this opportunity. "Second, a specific objection is required
to afford opposing counsel an opportunity to remove the objection or supply
other testimony." Again the applicant was denied the opportunity. Zillender v.
State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977).
Objections promote the prevention of errors and help the correction of
those errors. When valid objections are timely made and sustained, the parties
may have a lawful trial. It is quite easy to assume what has occured in the
applicants case for the failure of the State to make this objection. He was
denied a fair ttrial. A statute permits our appellate courts to consider
claims that an error in the courts charqe to the jury to which no objections
were made and was so grave an error as to deny a applicant a fair trial.
Tex.Code.Crim.Proc. Art. 36.19; Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.
1984). This complaint has happened in the applicant's case. A party must make
the trial court aware of the complaint timely and plainly, and obtain a rulinq.
State Dep't of Highways and Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.
1992). The State has clearly failed to do such, thus denied the applicant to a
fair trial. Applicants due process rights and due course rights of law to a
fair trial which were violated under the Fifth and Fourteenth Amendments of the
U.S. Constitution and Art. I §10, 19 of the Texas Constitution. Applicant then
request the reviewing court to hold an evidentiary hearinq and determine the
merits of the complaint with the findinqs of facts and conclusions of law and
if so found order a new trial or vacate the sentence.
C. CONCLUSION
The traditional term in Texas Criminal Law that corresponds to "plain"
is "fundamental error." Art. 36.19 establishes the standard for fundamental
error in the court's charqe: "The judqment shall not be reversed unless it
appears from the record that the applicant has not had fair and impartial trial."
The Court's have paraphrased this statutory standard in other terms at different
times. If the applicant or the State had objected to the court's charqe, and it
was errornoues, the appellate court would have been required to apply the one
and only appropriate standard. The choice of the standard would have depended
on whether the error violated a riqht under the federal constitution, amonq
other thinqs. But since either side did not object ad preserve the issue for
74
appellate review, the appropriate standard is the statutory one for fundamental
error in the charqe. See Jimenez v. State, 32 S.W.3d 233, 235 (Tex.Crim.App.
2000).
CONCLUSION TO MEMORANDUM
The applicant contends that he has no excuse for the past handleinq
of his case that was presented previously to the court's except that he had
no scientific workinq knowledqe of law and relied upon the common use of
jailhouse lawyers who were only looking to make a quick dollar on someone
who had ignorance about the workings of the court system. Here is a concrete
area were someone who has a prima facie showinq of his unfair prosecution and
was hindered in every form from the courts to arque the correct issues that are
present within this memorandum and application. A evidentiary hearing is needed
here in order for the courts to extract correct and true justice just not any
hanqman mentalities from prosecutors lookinq for another notch in there qun
handle. In Black v. Collins, 962 F.2d 394 (5th Cir. 1995), cert denied, 504 U.S.
992 (19996), the Court discussed the requirement of an evidentiary hearinq. The
Court noted that if an exception to the presumption of correctness was even the
slightest, established, the same showinq would entitle the applicant to an
evidentiary hearinq.
The current rule that an applicant is entitled to an evidentiary hearinq
is if:
(1) there is a factual dispute which, if resolved in his favor would then
entitle him to relief, and
(2) he did not recieve a full and fair hearing in State Court.
Bast v. Scott, 55 F.3d 996 (5th Cir. 1995).
Many times, the need for an evidentiary hearinq in the result of the
failure to fully develop the claim in State Court. In many cases, the applicant
may obtain additional evidence to support a claim, or may not have alleqed
all the available facts in the State applications. In Keeny v. Tamayo-Reyes,
504 U.S. 1, 112 S.Ct. 1715 (1992), the Court held that a cause and prejudice
test applies to the failure to develop the facts durinq a State Court proceedinq.
The Court will conclude that the applicant is entitled to a hearinq only
if he can establish cause for failinq to develop the facts and prejudice
for not allowinq him to present them in court. The applicant contends that
is done here in this application and memorandum.
In a proceeding motivatted by an application for a Writ of Habeas Corpus
75
by a person in custody pursuant to a judqment of a State Court, then a
determination of a factual issue made by a State Court shall be presented
to be correct. Applicant shall qhave the burden of rebuttinq the presumption
of correctness by the clear and convincinq evidence presented here in this
memorandum. If applicant has failed to develop the factual basis of the
claim in State Court proceedings, the Court shall not hold a evidentiary
hearing on the claim, unless the applicant shows that a factual predicate
that could not have been previously discovered throuqh the exercise of due
diliqence, and the facts underlvinq the claim would be sufficient to establish
clear and convincing evidence that, but for the error of constitutionally large
maqnitude, no reasonable fact-finder would have: found the accused quilty of
the underlying offense if not for the promptinqs of the State.
With the facts of the perjured testimony knowinqly presented bv the
State, and failinq to correct it once it was shown by other testimony to have
been false and the defense counsel's failure listed in the complaint, and not
rulinq on actual innocence presents clear and convincing evidence needed to
discredit the presumption of correctness by the State Court and therefore, an
evidentiary hearinq is warranted.
PRAYER
WHEREFORE, PREMISES CONSIDERED, applicant humbly prays that this Honorable
Court will grant the Motion for Successive Petition and allow him the one and
only opportunity to prove that he has the evidence in this application and in
the memorandum to show that he has standinq to be qranted relief and that a
evidentiary hearinq is the only way that he can proceed to show his innocence.
^.ictfully Submitted,
Roberc-aee Brown #927914
TDCJ-CID, Applicant Pro-Se
Eastham Unit
2665 Prison Road #1
Lovelady, Texas 75851
CERTIFICATE OF SERVICE
I, Robert Lee Brown, applicant pro-se, hereby certify that the forqoinq
information is true and correct, and a copy is being mailed to the District
7-6
Court Clerk of Travis County at P.O. Box 1748, Austin, TX 78767.
Signed on this^g day of /V\/X U / 2009-
lAtfrsy}
Jrown #927915
Applicant Pro-Se
TDCJ-CID
Eastham Unit
2665 Prison Road #1
Lovelady, Texas 75851
77
>
I
•n O C
m < .
3>oo in vi
?t/> 3 -*ii—o-
o—cnx>3>
CO00O—TJ
Z - Ul-COO
-H —•