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2225 222" /1<’/2/|!£ §§2§§§§/ ZZWZ 21§%¢5@§7/7722State;was required to`disprove"the'
Applicant's alibi 'defensei~ .By 'taking:the culpable mental state out of the
charge, the State, was 'no nlonger. required:to show why'the Applicant'Fled;""
Just that\ he fled intentionally.. Arld:the"€ourt-sjhave,.alre<‘:ld§>f;'stated,.”i.,"I'--f"
started by Officer'Cryer. 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_