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Feb. /7 t 2015
Joel Garza #1837353
Terrell Unit
1300 FM. 655
Rosharon, TX 77583
El
COURT OF CRIMINAL APPEALS
MOTION DEMSBD
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Clerk - Abel Accosta
201 W. 14th St,/ Room 106
P. O.
Austin,
Box
TX
12308
78711-2308
BY:_JLL——-— TO 2o 2015
Re: Case No.: WR-81,650-01, Ex Parte Joel Garza i,Cterk
Tri. Ct.'Cause No.: C-2-010204 - 1256110-A .
Article 11.07 Application for Writ of Habeas Corpus
Dear Clerk:
Enclosed please find Applicant's "Objection to Trial Court's
Findings", Applicant's Motion to Stay and Abate Article 11.07
Habeas Corpus Writ Application. Applicant is an indigent, pro se
litigant without access to a computer, xerox copier or E-mail.
Please file this motion with the papers in this case and bring to
the attention of the court.
Thank you for your a&sistance and please provide notice of
filing.
Respectfully submitted.
JAM A*y&-—
Cl\
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81 ifSSD'Ct
NO. WR-81/650-01
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
JOEL GARZA
Petitioner
V.
THE STATE OF TEXAS
Motion in Cause No. C-2-010204 - 1256110-A/
From the Criminal District Court Number Two
Tarrant County, Texas
OBJECTION TO TRIAL COURT'S FINDINGS
APPLICANT'S MOTION TO STAY AND ABATE
ARTICLE 11.07 HABEAS CORPUS WRIT APPLICATION
TO THE HONORABLE JUDGES OF COURT OF CRIMINAL APPEALS:
COMES NOW/ Joel Garza/ an incarcerated pro se Applicant with his Objection
to Trial Court's Findings/ and Motion to Stay and Abate Article 11.07 Habeas
Corpus Writ Application/ alleging trial court's findings are insufficient and
not supported by the record.
Background
1. On or about Mar., 2014/ Applicant submitted Art. 11.07 Habeas Corpus Writ
Application to Tarrant County District Court Number Two/ in Cause No. C-2-010209
1256110-A;
2. On or about April/ 2014/ Applicant submitted a subsequent Art. 11.07 Habeas
Corpus Writ Application to same district court/ Cause No. C-2-010236 - 1256110-B;
1.
3. On or about June 04, 2014, the Tarrant County District Attorney filed an
"ANSWER" to Art. 11.07 Habeas Corpus Writ Application in Cause Nos. C-2-010209 -
IP^Iin-fl; and C-2-010236 - 1256110-B; (see State's Answer)/ and included copies
of the following instruments:
(a), defendant's trial motion to appoint investigator, and Order appointing
investigator - Bearden Investigative Agency/ Inc.;
(b). defendant's trial request for appointment of expert witness and Order
appointing expert witness - complete Accident Reconstruction Service;
(c). defendant's first amended request for appointment of expert witness
and Order for appointment of expert witness - Dr. Gary Wimbish;
4. The State's "ANSWER" (#3 above) failed to provide the "REPORTS" of investi
gator and expert witnesses, (see State's Answer);
5. The trial court denied the original and subsequent habeas corpus writ appli
cations and forwarded applications to the Court of Criminal Appeals, where:
(a), the CCA. assigned case number #WR-481;650-01 / to trial court cause
-5 :—
no. C-2-010209 - 12fl6110-A, (Pending ??);
(b). the CCA. assigned case number # WR-81/650-02/ to trial court cause
no. C-2-010236 - 1256110-B; and was denied without written order on
08-20-2014.
Objection
Applicant alleged facts that if true might entitle him to relief. Appli
cant objects to the trial court's findings of fact or conclusions of law in
that those factual findings are not ^.supported by the record, and resolution
of fact issues is necessary for the Court of Criminal Appeals to render a
decision on Applicant's claims.
The State's Answer/Response asserts there is no need for an evidentiary-
hearing and expansion of the record/ and that Applicant's grounds can be re-
2.
solved based solely on the record before the court.
However, a review of the record submitted by the State on,habeas corpus
review .affirmatively demonstrates the necessity to develope record in that
relevant and material "Reports" from court ordered investigator and expert wit
nesses were ommited from said record.
Authorities
In Ex Parte Patterson, 993 S.W.2d 114, 115 (Tex.Crim.App.1999), the court
held, additional remand/- to the trial court/ was required for a hearing to
determines whether counsel advised defendant about potential challenges to prior
conviction and why defendant chose not to pursue them Because Appli
cant alleged facts that/ if true/ might entitled him to relief/ we remanded
this matter to the trial court for resolution of factual issues presented in
accordance with Art. 11.07/ Texas Code Criminal Procedure Since the
Court of "Criminal Appeals does not hear evidence (Ex Parte Rodriguez/ 169 Tex.
Crim.App. 367/ 364 S.W.2d 294 (1960)/ the court held application in abeyance
pending the trial court's compliance with this opinion. Ex Parte Patterson,
993 S.W.2d at 115.(supra).
In Jefferson v. Upton, 130 S.Ct. 2217 (2010/ the Supreme court held that
remand was required to determine whether State habeas court's factual findings
warranted a presumption of correctness. The court believed it necessary for
lower courts to determine on remand whether State courts factual findings war
ranted a presumption of correctness/ and to conduct any further proceedings as
may be appropriate in light of their resolution of that issue.
Argument
Amongst other things/ Applicant alleged counsel was ineffective in that
counsel pressured Applicant into pleading guilty involuntarily by giving mis
leading/ confusing information and withholding information from him.,
3.
Here/ the State's Answer/Response to application for writ of habeas! corpus
contained trial records of: (a), defense motion for appointment of investiga
tor/ and Order granting such;, (b). defense request for appointment of expert
witness - (Complete Accident Reconstruction Service), and Order granting such;
(c). defense request for appointment of expert witness - Dr. Gary Wimbish (for
ensic toxicologist), and Order granting such.
However/ the State's Answer/Response did not include copies of the "REPORTS"
r
from said investigator of expert-witnesses. The State appears to have based
their proposed findings of fact and conclusions of law on the opinions of these
court ordered experts. The relevance of these motions/requests and Orders is
/ a
obvious in that the State introduced said records to support trail courts habeas
findings and conclusions. The State's response has further alladed to defense
counsel's review of (case) file and experts opinions., (see State's Proposed
Findings #13-20; and Conclusions of Law #16-26).
In light of Applicant's factual allegations, the State's Response and
Proposed Findings of Fact and Conclusions of Law, and the habeas record sub
mitted by the State, Applicant argues in good faith, that the record does not
support the findings and conclusions made by the trial court.
As in Jefferson v. Upton, 130 S.Ct. 2217 (2010), in this instance the State
trial court's findings were drafted, exclusively by the Attorney for the State.
The trial court appears to have relied upon the State's Response to Application
forWrit of Habeas Corpus, to support the court's findings. Considering the
ommission of several key reports, court ordered, it would appear that'the pre
sumption of correctness applied to State court findings, is in question and
that this court should not give deference to these trial court findings until
an evidentiary hearing can be ordered and held/ for resolution of all the •.
issues and grounds in application for writ of habeas corpus.
Here/ Applicant alleged facts which, if true, might entitle him to relief.
These factual issues were presented in accordance with Article 11.07. Applicant
offered evidence, to rebut trial court, findings, that "indicated vehicle defects
that may have contributed to the accident in this case. Applicant's allegations
were based, in part,, upon the "Texas Peace Officers Crash Report'"(Form CR-3,
1-1-2010). This Report was investigated and prepared by investigator "LY SORRELS"
of the Fort Worth Police Department, Case No. 11-025820, dated 03-16-2011.
Applicant would argue, he is entitled to an. evidentiary hearing because the
State did not provide full and fair hearing at which to develope facts, see
Hall v. Quarterman, 534 F.3d 365, 367-369 (5th Cir.2008)-(where court held
petitioner was entitled to evidentiary hearing because the State did not pro
vide a full and fair hearing at which to develope facts.)
Prayer
For the reason alleged herein, Applicant was denied a fair review of his
factual issues on post-conviction habeas corpus review. Therefore, Applicant
prays this Court grant this Motion, stay and abate proceedings in this case,
and remand to the trial court for an evidentiary hearing.
Respectfully submitted,
JoeST Garza #1837353
Terrell Unit
1300 FM 655
Rosharon, TX 77583
2-/1-/ST
5.
Certificate of Service
I, Joel Garza, hereby certify and declare that a true and correct copy of
the foregoing Objection to Trial Court's Findings, Applicant's Motion to Stay
and Abate Article 11.07 Habeas Corpus Writ Application, by depositing such in
U.S. Postal container, properly addressed to the Tarrant County District Attor
neys Office - Mr. Joe Shannon, Tim Curry Criminal Justice Center, 401 W.
Belknap St., Fort Worth, Texas. 76196-0201, on this the 17 day of Feb, 2015.
Unsworn Declaration /
I, Joel Garza, TDGJ-ID No. 1837353, currently incarcerated in the Terrell
Unit, TDCJ-ID/ in Brazoria County, Texas do hereby declare under penalty of
perjury that the foregoing instrument it true and correct to the best of my
beliefs.
So Sworn on this the 17 of Feb. 2015.
•l*^
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