NO-1993-CR-1511E-W4
U3, H5"-oq
Ex Parte In the 186th
Ersan Yurtman, § Judicial District Court
Applicant Of Bexar Couggggjgggity
§
COURT OFCRIMINAL APPEALS
§
M* MIw.-.—ED *
^/u-a "Y^j^r>X . ^ Applicant's Motion For Eh Banc Consideration
APR 15 2015
! ^ ff- \ AS Traverse of the Trial Court:!s Order
invocaticn of "law-of the Mta*ri« AbelA008KI,Cfelk
ition For Judicial Notice of Court Records '
Altematively,Motion to withdraw Application
Applicant,Ersan Yurtman,is an eighth grade educated convic
ted felon who has been incarcerated for twenty-two years for a
jury's finding of guilt at trial of Four-joint trial defendant's
charged with the sexual assault of a child on or about Febuarary
15,1994.The jury acquitted two defendant's and convicted two,
E'-R=n Yurtman, ^n^ Roqelio Guf^prrez recei"0^ a thirtv ve = " sentr.ii
ence.
Aftpr a w^-Mon for New T^al was denioH'on may 31.1994,The Fourth
Court of Appeals affirmed Yurtman's conviction(04-94-00206-CR)
on June 28i"h . 1 996-
The Trial Court entered an Order for this application on
March 13,2015,wherein the court states the district Attorney
received a copy of this application on February 26,2015.No re
sponse was served on applicant,so a general denial is atuttorily
assumed -
TRAVERSE
Applicant would move the Court to the pleadings submitted by
applicant with leniency and liberally-Applicant has not made the
required showing that the claims raised could not have been
raised previously.See;TCCP,Art.11.04,§4 (a)(2).
Applicant would show the Court that the pending application
is based on Newly Discovered Evidence which was not,and could
not have been,presented to the Court because the State Attorney
of Texas suppressed the evidence of the complainant's hosptal-
ization of mental diagnosis to falsely potray the complainant's
credebility- • ^^
Invoction of "Law of The Case"Doctrine
Applicant,as stated,was tried to a petite jury with four
co-defendants-He and Gutierrez ware convicted and sentenced
to prison.On or about April 14,2014,the Court of Criminal Appeals
granted Gutierrez relief from his conviction for Cause NO.WR-76-
513-05,because he established a serious Brady violation commi
tted by the District Attorney in suppressing the complainant's
psycological hospitalization and subsequent diagnosis of "Border
line personality disorder"and symptomatic compulsive lying."
Applicant now asserts that the Court granted Gutierrez relief
from his conviction that occurred with the same testimony,from
the same complainant,for the same offense in a joint-trial,
specifically for the Brady Violation the applicant is now pres
enting before this Court-
Applicant would show that a standard companion case is legally
capable of being designated the same parties;where the State is
prosecuting multiple defendants who are accused of committing
the same offense,at the same time,assisting each other.
Motion for Judicial Notice
r :,'. '... of' courtrrecords
Applicant now moves the Court,pursuant to Tex,R,of Evidence,
Article II,Rule 201(a),(b),(C),((d),(e),(f)-(West 2014)-
Judicial Notice of Adjudicated Facts::to take Judicial Notice of
the Court's Record in Cause NO.Ex parte Rogelio Gutierrez,
WR-76,513-05.
As stated,Rogelio Gutierrez is the applicant's co-defendant
in trial court cause NO.1993-CR1511E-The Court's record will
show that newly available evidence was introduced in the trial
II.
court for Gutierrez's fifth application for writ of Habeas
Corpus:which resulted in the reversal of his conviction.
As applicant states in his .attached affidavit,he learned
of the relief given to Gutierrez in July of 2014:through corr
espondence received from Gutierrez.At the time applicant started
trying tcvery avenue possible to acquire the record and evidence
entered with his application for writ of Habeas Corpus-Applicant
has not been successful in obtaining a copy of the record now
in the State Law Library-While he continues to make every effort
he can to acqire these documents,the out come is not assured.
Therefor,he has attempted to present the claims for Brady Vio
lations as best he can.
Applicant believes he has met and exceeded the preponderance
standard for showing is actual innocence in a subsequent writ
application,but for Brady Violation no rational jurorcould have
found the applicant guilty beyond a reasonable doubt -See;Exparte
Knipp,236S.W-3d 214(Tex.Cr.App. 2007).
Should the Court deny applicant's motion to take Judicial
Notice for the Court's records,applicant will not have met his
burden to show a Constitutional Violation that likely caused
the conviction of an innocent man.Therefor,he would have to
move the court to allow him to withdraw his application until re
such time and he can provide the evidence necessary to meet the
required standard.
Wherefor/Applicant prays that the Honorable Court will hear
and determine the merits of the aforegoing and DRANT relief with
III
Judicial Notice of the Court'sRecord,and Remand the cause to the
trial court for factual determination of whether applicant has
met the threshold of invoking the "Law Of The Case"doctrine,and
thereby has established, by a preponderance of the evidence,
his entitlement to an evidentiery hearing on the merits of his
claim,with the appointment of counsel.
Respectfully Submitted,
Ersan Yurtman#682652
ProSe
899 FM 632
Kenedy,Tx.78119
Connally ,Unit
Dated April 12,2015
IV-
Affidavitt.
I Ersan Yurtman,being of sound and competant mind do declare
this is true and correct to the best of my knowledge.
On July,2014,I was contacted by'Rogelioo Gutierrez(co-defendant)
that he was back in the county-Apperantly,his case was being
represented by the innocence project and they had found evidence
that the complainant,Corina Martinez,was in a mental hospital and
that she had been diagnosed with sometype of mental disorder.So,
I told my mother to go to the Bexar County Clerk's Office and try
to obtain any record she could on Rogelio's case but the Clerk
said that the record is not available to my mother except certain
papers so I told my mother to print those out-
She-;: printed out on 10-07-2014 an"event Log Display"from the
Bexar County Criminal Justice Information System.
On that display my mother printed out the Order Designating
Issues,from the 186th Judicial District- Com-*- <~>f Dp»ar County,
Texas regarding Cause Number 1993-CR-4909-W1-
This Order from Judge Maria Theresa Herr was the document that
brought to my attention that the allegations that Rogelio ..:. :crr
Gutierrez was making were true and that he was'nt lying on his
letter.
Penalty of Perjury
I Ersan Yurtman,under the penalty of perjury declare that
this document is true and correct,and that I am presently in
carcerated at the Connally Unit in the Texas Department of
Criminal Justice.
Executed on l\fi^Vl '* \ 2.015.
Respectfully
j e c t r u x i y Submitted,
buomittea, /i /
i
Ersaiin Yurtman S^sSb*^) f\ ^^^nT^
V.