Vernon, Eli III AKA Mims, Eli

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And'under the "fruit of poisonesstree doctrine", evidencev found. after the initiation of the detention may not be used.against the Applicant. (See.St. Geg§§e v. State; 197 S.W.3d 806, p.d.r. granted, 237 S.W.3d 720 (TX.Cr;App. 2 Dist. 2006). 1 Article 38.23(b) V.A.C.C.P. directs the Trial Judge to give Jury instruc- tion if there` has been raised the legal issue of reasonable suspicion. lThe Applicant was denied due process when the lrial Judge took upon himself the duty of Juror.. The Applicant requested Jury Trial. This conviction should be reversed and Applicant granted an acquittal or_a new trial. 7. ISSUE SIX: The Applicant argues that defense counsel was ineffective for his failure to: l) challenge the composition of the Jury; 2) have jury’ charge/ indictment corrected; 3) request Jury instructionspursuant to Article 38.23 (a) V.A.».C.C.P. in regards to whether police had reasonable suspicion to stop the Applicant;` 4) failure to Object to incorrect Jury instruction in closing arguments of guilt/innocence phase of trial and during Voir Dire'. These derelictions on the part.of defense counsel denied Applicant his 5th, 6th, andl4th Amendment‘ right to effective assistance of counsel. Note, the Trial Court conducted no investigation on this issue denying Applicant a proper review of this.issue. The defense counsel has not been given oppor- tunity to respond. v The first issue of. failing .to ckallenge the Jury composition shows ineffec- tiveness, or for a better mrd, relinquishing the Applicant's.right to a Jury of his peers. Defense counsel has merely conformed to ignoring Parker County's failure: to ensure potential jurists show up for jury duty.. _'I‘he State's Reply to this issue, that on'ly'53 out of 200' jurors showing up was normal .. The failure of defense counsel to challenge this constitutional violation~will`continue unless effective counsels challenge it. This was ineffectiveness in failing to protect the rights of his client. The second issue- of failing to have the Jury'charge/indictment corrected cannot in any way be construed'as sound trial strategy when it involves the Applicant's alibi defense. State and federal law require that ."mens rea" or a culpable mental state be included in the indictment/ jury charge. The issue of "knowingly" was not included in the charge. .Such renders the indict- ment void. But more importantly, allowed the State a lesser burden of proof. They were not required to. "prove" that the Applicant ‘did not know a police officer "was chasing him, or`that his belief it was-robbers was a lie. Again, this cannot be said to be sound trial stratagy, as it was his client's sole line of defense. Strickland'.v. Washingt¢n, 104 S.Ct. 2051, 2061 (1984) has stated, "if there is only one plausible line of defense, counsel must conduct a reasonable substantial investigation into that line of defense, since there can be no strategic choice that renders such an investigation necessary. The same duty exists if counsel relies at trial on only one plausible line of defense, although others are ~available. It must include an independant examination of the facts, circumstances, pleadings, and'laws involved.'.' Id. at 2061. Defense counsel failed to hold the State to their'burden of proof of every element of the crime charged, to include "mens rea", 3a culpable mental state. 3. Defense counsel had._a duty to the Applicant to request Jury inst-ruc- tions pursuant .to.Article 38.23(a,) V.A.C.C.P. He had argued the reasonable suspicion issue at trial. He allowed the Trial Judge to decide a crucial issue that should,have been the Jury's decision alone. v "It is fundamental that an attorney must have a firm command of the facts of the case, as well as the law before he can render reasonably effective effective assistance.~" Ex Parte Ybar'ra, 629 S.W.2d 943 (Tx.Crim. App. 1982). Defense counsel failed to render effective assistance when it was needed. Finally, ' during the Voir Dire and in closing arguments of the guilt/inno- 'cence phase of trial, the prosecutor instructed the Jury that they were not required to prove why the Applicant fled from police. This lessened the burden of proof upon the State to prove culpabl'e mental state. Yet there was'no objections to this argument by the defense counsel. "If an attorney makes a serious mistake which could effect the verdict, -10- reversal is required; even if the attorney was generally competent." !§§m: bley v. Anderson, 439 F.Supp. 1250 (1970) affirmed, 584 F.2d 507 (5th Cir 1978), The Applicant was required to show that defense counsel's performance was deficient,. and that the deficiency_prejudiced.the defense. (See Str]'.ckland supra, at 2052; Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999).7 He has done this. CONCLUSION The conviction .and sentencing under which the Applicant is imprisoned is unlawful and void due to the multiple violations of the Applicant's rights to 'due process and equal protection under the law, effective assistance of counsel, and an unbiased appellate review. The Trial Judge has denied the Applicant this appellate review. The Appellate prays the Honoratde Court disregard the Trial Court's Order Recommending that Applicant's Application for writ of Habeas Corpus be Denied, and l) Order an evidentiary hearing» on all the Applicant's issues be heard in a different District Court; or 7 2.) This Court hold its own evidentiary hearing on all the issues presented in the Applicant's Writ; Or 3) Grant the Applicant an acquittal or new trial. IT IS SO PRAYED ~ . r_”' rESPEcTFULLY sUBMITTED, (jzu,¢/i;p,¢m¢,¢,eiLL¢L Eli vernon 111, TDcJ-cID #1863499 Alfred Stringfellcw Unit 1200 F.M. 655 b Rosharon, Texas 77583 _11_ VERIFICATION_ I, Eli Vernon I~II, .Applicant, pro-se in the above styled and numbered cause, being presently incarcerated at the AlfrediStringfellow Unit, of the TDCJ-CID, in Brazoria Coun_ty,' '1‘exas, do hereby verify under penalty of l perjury that all the statements contained in this'Objections To Trial Courts Order 'Recommending that Applicths Appli'cation for lwrit Of `Habeas Corpus be Denied are true-and Correct. 'Affir'n‘ation trade pursuant to 28 U.S.C. § 1746. £LL/WF l /\§’ j&[[. /S/ Eli Vernon III, TDCJ-CID #1863499 Applicant , Pro-Se I, Eli Vernon; III, Applicant, pro-se,f do hereby certify that'a true and correct copy of this Obj'ections to, Trial Judge?s Order Recommending That App-licant's Applicationy .'for_' writ of Habeas Corpus Be. Denied has been served ' by placing a copy of the same in~the.U.S. mail,` first class .mail, postage pm%id, addressed to: Parker Coutny’District Attorney A'ITN: Mr..‘-Edward D. Lewalled, Asst.. D.A. 117 Fort V\brth Hwy._ Weatherford, Texas 76086 24 /M;r /5 ja 4 /5 Eli.Vernon III, TDCJ-CID #1863499 ' Alfrea stringfenew Unit- 1200 F.M. 655 Rosharon, lean 77583 _12_