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CAUSE NO. 04-15-00183-CR S ''• .•
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FOURTH COURT OF APPEALS ^ ^o -
SAN ANTONIO, TEXAS ^ """i
RICHARD LARES, j -%i ^ £SVa
Appellant
V. CD
CO
THE STATE OF TEXAS,
Appellee
NOTICE
TO THE HONORABLE JUSTICE(S) OF SAID COURT OF APPEALS:
Comes Now, Richard Lares, TDCJ #1592255. Appellant herein, in style and
cause and provides Notice that this case is an Extraordinary Case with Exigent
Circumstances that should compel the Honorable Court of Appeals to assume Juri
sdiction to correct a miscarriage of justice because Appellant is aggrieved by
unconstitutional detention to wit: The 399th Judicial Court's Lack of Jurisdic-
tionAPreside Over, to Prosecute, and Convict Appellant ab initio in Cause No.
2003-CR-10110.
I.
Appellant avers that the 399th Judicial District Court Correctly changed
the Offense Date to reflect the Plea Bargain's Contractual Agreement as per
Appellant's Nunc Pro Tunc Motion to Correct a Clerical Error, but the contract
was Void ab initio because the Offense Date of Sept. 3,2000 was Not Alleged by
the alleged victim's affidavit as an offense being committed against her. As
such the jurisdiction of the 399th Judicial District Court is not inherent of
any jurisdiction to act as a court in case at bar.
II.
Appellant avers that the Clerical Error Date of 03-23-2006 caused Great
Harm and Prejudice to Appellant during § 11.07 and § 2254 proceedings because
Appellant had to defend against said clerical error date and the Courts did not
consider appellant's grounds as having merit when presented to the Courts. Even
the trial court failed/never admonished appellant of any alleged dates of offe
nse during the Sentencing Phase. Had trial counsel asked appellant of any date
being alleged, appellant would have had the opportunity to correct All dates as
Not Alleged by the Alleged Victim and the Detectives' Police Report is erroneous
upon its face for misrepresentation of the facts alleged.
III.
Appellant avers that Det. Armstrong's Report is Erroneous in alleging the
Offense time frame as being from 01-01-2000 to 12-12-2002 when the Alleged
Victim's Police Affidavit stated a specific time frame "I was around the age of
13 years old...When my Dad first had sexual relations with me." Trial Counsel
failed to ask Appellant when was she 13 y.o.? A $10.00 question that could have
exonerated the Appellant because the answer is Sept. 4,2002. Clearly the inte
nded alleged date of offense was NOT Sept. 3,2000 when she was 9 y.o. nor Sept.
3,2001 when she was 10 y.o.. This proposition has a fundamental elemental appeal,
since the tenor did not allege those dates,as would the similar "proposition that
the Constitution Prohibits the imprisonment of one who is innocent of the crime
for which he was convicted." Ex Parte Elizondo, 947 S.W. 2d 202 - Tex: Court of
Criminal Appeals 1996. As stated in Menefee "a stipulation of evidence or jud
icial confession in support of a guilty plea that fails to establish every ele
ment of the offense charged will not authorize the trial court to convict."
Menefee v. State, 287 S.W. 3d 9 (Cr.of App. 2009). Even the Correct time frame
of offense from Dec. 31,2002 to Jan. 2,2003 is an impossible/improbable Date
because there were thousands of people at the Alamo Dome and NO one witnessed
any crime on Dec. 31,2002 New Years Eve Fireworks Celebration and Appellant has
7 sound alibi(s) for all these dates to include Dated Photo taken by the Alleged
victim's mother, Martha C. Flores.
IV.
Appellant avers that he has Newly Discovered/Available Material Evidence
Alibi from a credible third party, an alibi that trial counsel was aware of and
refused to even make the cursory investigation into Appellant's testimony that
his family was not in Texas on Sept. 3,2000 as evidenced by 11.07 Exhibit 88
which shows the alleged victim standing next to Retired Arizona Officer Steve
A. Costello Badge No. 8687 and 8564, photo taken by Martha C. Flores, allege
victim*s mother who own the digital camera. Appellant recieved Officer Costello's
affidavit on 12-29-2014 by JPay Mail from Karina Lares, wife, but she refuses
to send him the original to provide it to the court.
In discrediting Det. Armstrong's interpretation of allege's affidavit which
he stated "C - stated" resent E-Mail Correspondences between the Alleged Victim
and her step-mother. Karina Lares, stated that she(allege victim) did not know
where those Dates came from, in reference to the indictment dates. See Nunc
Pro Tunc Motion'-s Affidavit from Karina Lares.
V.
Appellant avers that his Plea Bargain was induced by the State's false
information and trial counsel's intense pressure for appellant to plea and trial
counsel knew that those'dates were false as Counsel Gonzales stated "Dates don't
matter"; dates are vital elements of a Penal Code making his statement false.
See Karina Lares Affidavit in 11.07 Supplement Argument and Traverse to States'
Response. Appellant believes that Rios case is analogeous to his in the since
that an agent of the State used false testimony to induce him into Plea Bargai
ning with the State, as stated in Justice's Jim Sharp Concuring statements " IF
our jurisprudence is to regard a Plea Agreement as a contract between the defe
ndant and State, 'there cannot be.permitted the slightest measure of fraudulent
inducement to that contract.'" Rios v. State,377 S.W. 3d 131(Tex;Court of App.
2012).
VI.
Appellant avers that the Honorable Court of Appeals should lold a hearing
develope these extraordinary exceptional circumstances and vital flaws that vio
late Appellant's substantial rights in the interest of justice: 1) the merits
of the factual dispute were not resolved in the state trial/hearing; 2) the
state factual determination is not fairly supported by the record as a whole;
3) the fact-finding procedure employed by the state court was not adequate to
afford a full and fair trial/hearing; 4) there is a substantial allegation of
Newly Discovered/Available Evidence; 5) the material facts were not adequately
developed at the state court hearing; 6 because the critcal elements in question
were not investigated by the state and trial counsel.
These are the Constitutional claims Appellant wishes to present to the
Court of Appeals and hopefully Appeals Counsel will incorperate these grounds.
PRAYER
WHEREFORE PRIMISES CONSIDERED, Appellant prays that the Honorable Court of
Appeals assumes jurisdiction because of this extraordinary exigent circumstances
in the interest of justice and holds a hearing with all parties present to take
live testimony and allow for discovery to resolve the issues with the aid of
appointed counsel and to Correct a miscariage of justice. Appellant further
prays that he be allowed Bail/Bond in order to gather material evidence for his
defensej and that the Appeals Court Grant any relief within its jucisdiction.
So Moved, So Prayed For.
CERTIFICATE OF SERVICE
L certify that I have read the pleadings and to the best of my knowledge and
belief, formed after reasonable inquiry, that the instrument is NOT Groundless,
or Brought in Bad Faith or Brought for the purpose of Harrassment, Unnecessary
Delay, or otherImproper purpose. I also certify that a true and correct copy
was sent to the Clerk of the Fourth Court of Appeal at Cadena-Reeves Justice
Center, 300 Dolorosa, Suite 3200, San Antonio, Texas 78205-3037 and Counsel
Barry P. Hitchings at Hitchings and Pollock, 645 S. Presa, San Antonio, Texas
Texas 78210 by U.S. Postal Mail on 4/25/2015.
Q*i n t > . Sincerely Submitted,
**< feci. | viwif- , . # J fl ~f
M%V*W4, 7X> 772 b? Richard Lares, Pro Se
NORTH HOUSTON TX 773;
27 APR 2015 PW 3 L
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Richard Lares v. State
Combined Opinion