Ramirez, Rodney John

Rodney John Ramirez,#864913
William P.Clements Unit
9601 spur 591
Amarillo, Texas 79107-9606

Ouqub± li_,2o1s ·

Hon.Abel Acosta, Clerk of the Court
I

Texas Court of Criminal Appeals
P.O. BOX 1230~,,. Capitol Station
Austin, Texas 78711
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RE: EX PARTE RODNEY· JOHN.· RAMIREZ COURT C6,: f· .·,;, ti1'l~i'! \ ~~'?J~?,I~.:..%
CCA NO. WR-25.,057-14 AUG 17 20:5

Dear Honorable Clerk of the· Court,

Enclosed please find the original of my "Suggestion To Reconsi-

der On The Court-'s. Own Initiative" ·submitted for filing. among the

papers of the ab6ve-styled and numbered cause.

If you would, could you please process the aforementioned

enclosed and bring same to the Court's attention for a .ruling on

the merits of same.

I "Thank You" in Advance for your kind professional time and

assistance in the filing of the aforementioned ·enclosed.

Sincerely/Respectfully Subllkitted,

~~t~
TDCFCID:fl:864913
William P.Clements Unit
9601 Spur591
Amarillo, Texas 79107-9606

CC:File
 IN THE TEXAS COURT OF CRIMINAL APPEALS

~rial. Court ~o-59793-327-3

Court of Crimi.nal Appeals No.WR-25,057-14

EX PARTE.

RODNET JOHN RAMIREZ

SUGGEST.ION TO .RECONSIDER ON

THE COURT~S OWN IN~TIATIVE

TO THE HOOORABLE JUSTICES OF. THE. TEXAS.:COURT OF CRIMINAL APPEALS:

The Honorable. Justice Kell'er filed a concurring opinion in Ex

parte Moreno, 245 s.w.3d ·at. 431 (Tex.Crim.~·App-2008), asserting

that •Recons·idering an application for wri.t .of habeas· corpus after

a significant: passag.e of time should be·. a rare event, and should

not become a; means of. circumventing. the. statutes ... n

Pursuant to Rul·e 70. 2 (b) of the Texas. Rules of. Appellate Pro-

cedure, RAMIREZ submits this Suggestionto this Honorable Court

urging the Justices to R~consider a critical. issue upon which

habeas relief should have. been.granted.

J~stice Keller. offered two minimum conditions that must be pre-
"
sent in a Suggestion to Recpnsider on the Cour.t·•s Own Initiative,

and they are the following:

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a.}

The Reconsideration must indeed involve a claim that was orig-

inally raised in the habeas application:

In this regard, RAMIREZ filed his Amended writ applicatiqn on

April 2, 2013 under El Paso County Cause Number:59793-327-3,

wherein RAMIREZ presented and a~gued 1.) that the trial court

violated his Due Process, Due Course and Equal Protection of Law

rights under the Texas Constitution, and. the 5th/14th Amendments

of the United States Constitution when th~ Court assessed a sent-

ence exceeding the maximum ten~(lO)-year punishment rang~ permis-

sible by Texas Law' for a third degree felony conviction under

Texas Penal Code §32.31, which renders the Judgment of Conviction

a nullity, and 2.)

he was denied the Effective Assistance of appellate counsel

with regard to his state direct appeal when his court appointed

appellate attorney failed to raise on direct appeal, as a point

of error that was preserved during the sentencing proceedings,

the trial court's assesBment of a sentence exc~eding the maximum

ten-(10)-year punishment range permissible by Texas Law for a

third degree felony conviction under Texas Penal Code §32.31, in

conformity with the Judgment of Conviction and Sentence Nunc Pro

Tunc entered on October 29,L991.

This Honorable Court of Criminal Appeals denied relief.

b.)

An indisputable mistake of, fact or law that the Reconsiderati-on

seeks to rectify must have been made by this Court.

RAMIREZ contends that he has a clear and indisputable right to

have this Honorable Court of Criminal Appeals VACATE his oonvict:ioh

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under El Paso County Cause Number:59793, for the following

reasons: 1.) "The Texas Court of Criminal Appeals has jurisdiction

and the authority to right a wrong." As Justice Cochran wrote for

the Texai Court of Criminal Appeals, "there has never been any-

thing in Texas Law that prevented any court with jurisdiction

over a criminal case from noticing and correcting an illegal con-

viction- sentence." Mizell -V- State, 119 S.W.3d 804,806 (Tex.

Crim.App.2003);

2.) In the former regard, the record will reveal that

although there is a waiver of jury punishment on file among the

papers of this case, which authorizes a Judge to impose a sent-

ence, the Applicant (RAMIREZ) still has a right to be sentenced

within the proper range of punishment established by the Texas

Legislature. Steph -v- State, 6 S.W.3d 530,532 (Tex.cr.App.l999).

In the case at bar, the record will show that the sentence imp-

osed exceeded the maximum ten-(10}-year punishment range permis-

sible by Texas Law for a third degree felony conviction under

Texas Penal Code §32.31.

The record will additionally reveal that two prior con-

victions were alleged within the indictment for enhancement of

punishment purposes. As this Court is aware, under Texas Law,

regardless of which method the State elects to proceed under to

prove a prior criminal record of a defendant, nit is incumbent

upon the State to show a conviction." Lyle -v- State, 669 S.W.2d

853 (Tex.App.-Corpus Christi,l984).

Although authenticated records of Department of Correct-

ions may be used to provide proof of prior convictions supporting

habituization paragraphs of an indictment, "penitentiary packets

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are not sufficient on their own to prove prior convictions; nadd-

itional evidence must be presented showing that person convicted

as related to penitentiary packet is same as person at trial,n

Davila -v- State, 930 s.w.2d 641 (Tex.App.-El Paso,l996, rehear-

ing denied, petition for discretionary review refused)(Sentencing

and Punishment, Key at:l381(6); 1381(2)); Vessels -V- State, 432

s.w.2d 108 (Tex.cr.App.l968).

Moreover, the State is not only obligated to show a conviction

but must also prove the nature of each offense alleged, and the

sequence of when the convictions occurred and became final, in

the order alleged within the indictment, pursuant to and in acco~

randance with Article §37.07 of the Texas Code of Criminal Proc-

edure, and Penal Code §12.42(d).

Pr6of must be offered showing that ~econd conviction was for

offense committed after first conviction became final, "and def-

endant's admission that he had been convicted in two prior cases

does not render such proof unnecessary." Jones -V- State, 422

s.w.2d 183-(Tex.cr.App.l967)(Sentencing and Punishment, Key at:

1381(4)); Patterson -V- State, 723 S.W.2d 308 (Tex.App.-Austin,

1987, petiton for discretionary review granted, affirmed and re-

manded 769 s.W.2d 938)(V.T.C.A. Penal Code §12.42(d)); Kent -v-
State, 879 S.W.2d 80 (Tex.App.-Houston (14 Dist.),l994); French

-v- Estelle, 692 F.2d 1021 (5th Cir.l982)(and at 696 F.2d 318);

Dretke -v- Haley, 306 F.3d 257 (5th Cir.2002). Failure to prove

all these facts will nullify the punishment hearing. Ex parte

Augusta, 639 S.W.2d 481-486 (Tex.Cr.App.l982).

The record will clearly show that RAMIREZ plead Not True to

the enhancement allegations, and the State waived/~bandoned, with

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the Court's consent, the enhancement paragraphs after conceding

by stipulation it would not beable to meet its legal obligation

of proof to support enhancement paragraph one, and, consequently,

unable to meet its legal obligation of proving the sequence of

finality of the enhancement paragraphs.

"However," the record also shows, that following the State and

trial Court's actions in the aforementioned regard, the State

proffered, and the Court admitted, State's Exhibit-S, to wit:

certified records of the Texas Department of Corrections indic-

ating a felony conviction for aggravated robbery upon RAMIREZ,

absent any District Court Cause Number, date of offense, finger-

prints of RAMIREZ supported by expert testimony identifying them

as identical with known prints of RAMIREZ, or any other evidence

to support said records. See RR. Sentencing Phase at pp.316-324

attached to RAMIREZ's State Habeas Memorandum under Exhibit-2.

As such, RAMIREZ respectfully submits, that State's Exhibit-S,

"unsupported by additional evidence showing that person convicted

as related to penitentiary packet was same as person at trial,"

"amounts to a showing of no evidence" 1 ~ Thus, RAMIREZ's conten-
tion is not based on the sufficiency of the evidence, "but a

1. Davila -v- State:i 930 S.W.2d 641 (Tex.App.-El Paso,l996): Vessels
V- State, 432 S.W.2d lOS (Tex.Cr.,App.l96S). See also Bullard -V-
Estelle, 665 F.2d 1347 (5th Cir.l9S2)(and at 70S F.2d 1020 (5th
Cir.l9S3)): McGee -v- Estelle, 732 F.2d 447 (5th Cir.l984)(in re-
viewing sufficiency of evidence to support enhanced punishment on
due process challenge by Texas prisoner in federal habeas pro-
ceeding, relevant question is whether, after reviewing evidence
most favorable to prosecution, any reasonable trier of fact could
have found beyond a reasonable doubt facts necessary to support
enhanced punishment). Const.Amend.l4; V.T.C-A- Penal Code §12.42
(d); Ex parte Augusta, 639 s.w.2d 4Sl-4S6 (Tex.Cr-App-1982)-

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total lack thereof.

Furthermore, in the State of Texas, even in cases tried on

stipulated facts, an Appellate Court does not review the suffi-

ciency of the evidence in a case tried on stipulated facts, but,

rather, the Court reviews only correctness of application of law

to admitted facts. See Jim Sowell Const.Co., -V- Dallas Cent.
2
Appraisal Dist., 900 S.W.2d 82 (Tex.App.-Dallas,l995) •

As such, the State clearly failed to meet its legal oblegation

of proof to support enhancement of punishment in this specific

case, and although the trial court initially made an oral announ-

cement finding the second enhancement paragraph True, the trial

court cannot sua sponte relieve the State of its legal obligation

in this regard by finding the second enhancement paragraph True

and assessing a sentence exceeding the maximum ten-(10)-year pun-

ishment range permissible by Texas Law for a third degree felony

conviction under Texas Penal Code §32.31.

~Indeed," the trial court so recognized same by entering. its

Judgment of Conviction and Sentence Nunc Pro Tunc on October 29,

1991, wherein, the Court, in its Order, found the enhancement
3
paragraphs Not True , or failed to find in its Order, that ~rREz

2. Law applicable to admitted facts: Jones -v- State, 422 s.w.2d 183
(Tex.Cr.App.l967); Patterson -V- State, 723 S.W.2d 308 (Tex.App.-
Austin,l987)(769 S.W.2d 938)(V.T.C-A- Penal Code §12.42(d}); Kent
-V- State') 879 s.w.2d 80 (Tex.App.-Houston (14th Dist.) ,1994)-;-
French -V- Estelle, 692 F.2d 1021 (5th Cir.l982}(and at 696 F.2d 318}:
Dretke -v- Haley, 306 F-3d 257 (5th Cir-2002}, and Ex parte Augusta,
639 S-W-2d 481-486 (Tex.cr.App.l982}.

3. Ablon -v- State, 537 S.W.2d 267 (Tex.Cr.App-1976)(written order of
the Court control's over an oral announcement): Hubbard -V- State,
896 S.W.2d 359,361 (Tex.App.-Houston (1st Dist.},l995)(Same).

r
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•
had been previously convicted of enhancement paragraph number
4
two •

Thus, the former trial court Judge lacked jurisdictional aut-

hority to sentence RAMIREZ beyond the maxi~um ten-(10)-year pun-

ishment range permissible by Texas Law for a. third degree felony

conviction under Texas Penal Code §32.31, rendering the Judgment
5
of Conviction and Sentence a·nullity •

The trial court'~ actions in this regard violated RAMIREZ's

Due Process, Due Course and Equal Protection of Law rights under

Article 1§3 §12, §13, §14 and §19 of the Texas Constitution, and

the 5th and 14th Am~ndments of the United States Constitution,

fVasquez -V- State, 739 S.W.2d 37,43 (Tex.Cr.App.l987)(Article 1§3

of the Texas Constitution and the 14th Amendment of the United

States Constitution, secure to all persons similarly situated pro-
0
tection6),which resulted in a Miscarriage of Justice", because

RAMIREZ is Actual1y Innocent of the count-two credit card abuse

offense and penalty imposed for each count of the offense of con-

viction, by virtue of the trial court's Judgment of Conviction

4. Cf Eubanks -V- State, 599 S.W.2d 815-817 (Tex.Crim.App.l980)(wherein
the Court reversed the trial court's decision revoking the defend-
ant's probation because the written order of the court was not supp-
orted by the evidence).

5. It is now axiomatic that the punishment assessed must always be
within the minimum and maximum fixed by law. When its less or more
than provided by law, this renders the Judgment of Conviction a nul-
lity. Gonzales -V- State, 527 S.W.2d 540 (Tex.Cr.App.l975); State
-V- Shepard~ 920 S.W.2d 420 (Tex.App.-Houston (lst Dist.),l996).

6. A violation of RAMIREZ's S@.te and Federal 5th Amendment right cgainst
Double Jeopardy, because there exist two-(2)-independent'Judgment's
of Conviction and Sentence, one entered on September 18,1991, of
which, RAMIREZ has fully discharged, "as is evident upon review of
the TDCJ-ciD/BPP Commitment documentation attached to RAMIREZ's
State Habeas Memorandum," and the Judgment of Conviction and Sent-
ence Nunc Pro Tunc entered on October 29,1991, attached to RAMIREZ's
State Habeas Memorandum. Furguson -v~ Naylor, 860 S.W.2d at 127;

-{7;-
ana Sentence Nunc Pro Tunc entered on October 29,1991.

3.) In the latter regard, RAMIREZ contends that he was

denied the Effective Assistance of Counsel on his direct appeal

in violation of Article 1, Section 10 of the Texas Constitution,

and the 6th and 14th Amendments of the United States Constitution

when his appellate counsel (Bruce Weathers) failed to brief

(raise) on direct appeal, as a point of error, the trial court•s

assessment of a sentence exceeding the maximum ten-(10)-year pun-

ishment range permissible by Texas Law for a third degree felony

conviction under Texas Penal C6de §32.31, "that was clearly pre-

served during the sentencing proceedings," in light of RAMIREZ's

plea of Not True to both enhancement paragraphs, the State's

waiver by stipulation of said enhancement paragraphs, and the

trial court's finding of Not True of same by virtue of its entry

of Order Judgment of Conviction and Sentence Nunc Pro Tunc on

October 29,1991.

This Honorable Court of Criminal Appeals is fully aware

that RAMIREZ was entitled to the Effective Assistance of Counsel

with regard to his State direct appeal as a matter of right. See

Evitts -v- Lucey, 469 u.s.387 (1985); Ex parte Coy, 909 S.W.3d

927 (Tex.Crim.App.l995). As stated in RAMIREZ's ground .for relief

number one herein, RAMIREZ was- ~significantly harmed and preju-

diced" by the trial court's error in its assessment of a sentence

exceeding the maximum ten-(10)-year punishment range permissible

"Once the second judgment is signed, "the first judgment is dead", and
is not a final judgment from which an appeal can be taken." Id; State
-V- $2,000.000.00, 822 S.W.2d 721,725 (Tex.App.-Houston (lst~ist.),
1991, no writ). See also Wang -v- State, 899 S.W.2d 409-410.

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by Texas Law for a third degree felony conviction under Texas

Penal Code §32.31, "in light of RAMIREZ's plea of Not True to

both enhancement paragraphs, the State's waiver by stipulation

of said enhancement paragraphs, and the trial court's findi~g of

Not True of same by virtue of its enrty of Order Judgment of Con-

viction and Sentence Nunc Pro Tunc on October 29,1991."

As such, RAMIREZ reiterates, and incorporates herein, "as if

fully reproduced," his contention's under ground for relief num-

ber one with authorities cited in support thereof, in support of

his claim of ineffective assistance of appellate counsel.

RAMIREZ was •significantly harmed and prejudiced" by appellate

counsel's failure to raise on direct appeal, as a point of error,

the trial court's assessment of a sentence exceeding the maximum

ten-(10)-year punishment range permissible by Texas Law for a

third degree felony conviction under Texas Penal Code §32.31,

which was clearly preserved during the sentencing proceedings,

"in light of RAMIREZ's plea of Not True to both enhancement par-

agraphs, the State's waiver by stipulation of said enhancement

paragraphs, and the trial court's finding of Not True of same by

virtue of its entry of Order Judgment of Conviction and Sentence

Nunc Pro Tunc on October 29,1991.

Counsel's failure in the aforementioned regard resulted in the

affirmance of RAMIREZ's conviction for two-(2)-counts of credit

card abuse with the imposition of an eighteen-(18)-year term of

imprisonment for each count of said offense of conviction; pre-

vented the Justices from the Eighth Court of Appeals from deter-

mining the legality of RAMIREZ's conviction for one-(1)-count of

credit card abuse with the imposition of an eighteen-(18)-year

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te~m of imprisonment for said count(s) 7 , deprived RAMIREZ of est-
ablishing his Actual and Factual Innocence of count-two credit

card abuse and the penalty imposed under each count, while sub-

jecting RAMIREZ to be twice convicted and sentenced under El Paso

County Cause Number:59793, ("as is apparent by the official doc-

umentation attached to RAMIREZ's State Habeas Memorandum reveal~

ing two-independent Judgment's of Conviction and Sentence on file

among the papers of this case, to wit: the September 18,1991 Jud-

gment of Conviction and Sentence solely in the possession of

TDCJ-CID/BPP Officials, of which, RAMIREZ has fully discharged,

and the October 29,1991 Judgment of Conviction and Sentence Nunc

Pro Tunc solely maintained by the Office of the El Paso County

District Clerk and never forwarded to the TDCJ-CID/BPP Officials

to be filed among TDCJ-CID/BPP paper/electronic files under the

case at bar"), in violation of RAMIREZ's State and Federal 5th

Amendment right against Double Jeopardy.

RAMIREZ asserts, that this Honorable Court of Criminal Appeals

•inadvertently• overlooked these two critical legal claims that

are the basis of his instant habeas application, and had this 7
-

Honorable Court of Criminal Appeals acknowledged all of the above

and foregoing, the Court would have VACATED RAMIREZ's conviction

7. Neither the Clerk of the 327th Judicial District Court, nor the El
Paso County District Clerk has ever forwarded a certified copy of
the trial court's Judgment of Conviction and Sentence Nunc Pro Tunc
entered on October 29,1991 to TDCJ-CID/BPP Officials for substitu-
tion of the Judgment of Conviction and Sentence entered on September
18,1991 for inclusion among the TDCJ-CID/BPP paper/electronic files
under this case. Ferguson -V- Naylor, 860 S-W-2d at 127; "Once the
second judgment is signed, "the first judgment is dead•, and is not
a final judgment from which an appeal can be taken." Id; State -V-
$2,000.000.00, 822 S-W-2d 721,725 (Tex-1991): Wang -v=-state, 899
S-W-409-410.
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as null and void based on RAMIREZ's contentions, supported by the

official documentation attached to RAMIREZ's State Habeas Memo-

randum and well settled precedent(s) of this Honorable Court of

Criminal Appeals.

As such, and in the interest of justice, RAMIREZ respectfully

submits that Reconsideration on the Court's own Initiative is an

appropriate vehicle which this Honorable Court of Criminal Appeals

can use to correct its own "inadvertent mistake".

Respectfully Submitted on this _ll_ day of (}JJCjtiJ&-; ,2015.

William P·Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606

8. RAMIREZ respectfully nqluest 's that this Honorable Court of Crim-
inal Appeals construe this "SUGGESTION TO RECONSIDER ON THE
COURT'S OWN INITIATIVE", liberally, as would be consistent with
the holdings under: Haines -v- Kerner,·404u.s.519,520, 92 s.ct.,
594,596, 30 L.Ed.2d652 (1972); Humphrey -v- Cain, 120 F.3d 526,
at 530 n.2 (5th Cir.l997); Erickson -v- Pardus, .127 s.ct., at
2200 (2007).

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