WR-84,092-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/29/2015 10:06:52 AM
Accepted 10/29/2015 10:16:22 AM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
FOR THE STATE OF TEXAS
AUSTIN, TEXAS RECEIVED
COURT OF CRIMINAL APPEALS
10/29/2015
ABEL ACOSTA, CLERK
EX PARTE §
§
§ NO. WR-84,092-01
§
RICHARD HAMER §
APPLICANT’S OBJECTIONS TO FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
TO THE HONORABLE JUDGES OF SAID COURT:
NOW COMES the Applicant, RICHARD HAMER, and submits the following
objections to the Findings of Fact, Conclusions of Law and Order entered in this case and
would show the Court the following:
I.
The trial court failed to enter any independent findings or conclusions in this case.
Rather, the trial court simply signed an order adopting the state’s proposed findings. Art.
11.07, Tex. Code Crim. Proc. requires the Court to make its own findings, and not simply
rubberstamp what the state proposes.
II.
The trial court signed the state’s findings after the state obtained an affidavit from
defense counsel for Applicant in the trial court. Applicant was not given an opportunity to
respond to the affidavit. A response to the affidavit of defense counsel has been filed.
Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 1
III.
Moreover, an evidentiary hearing is necessary in this case. Applicant has raised issues
in this writ application regarding ineffective assistance of counsel. An affidavit from counsel
has been presented. However, Applicant requests an evidentiary hearing where he will have
an opportunity to cross-examine counsel for Applicant. Ex parte Byars, 176 S.W.3d 841
(Tex. Crim. App. 2005) (Presiding Judge Keller recognizing that the most effective way of
determining the reliability of witness testimony is through the crucible of cross-examination).
IV.
Additionally, Applicant objects on the basis that the Court has not seriously
considered, or adequately analyzed, his arguments.
Ground One alleged that Hamer received ineffective assistance of counsel. He was
involved in a vehicle accident that resulted in the death of another person. Defense counsel
advised Hamer to enter an open plea of guilty to manslaughter to the court and allow the
court to set punishment. The court set punishment at 15 years in prison. There was a
legitimate and meritorious defense to be presented to the manslaughter charge which defense
counsel did not present. This defense was that, if Hamer was guilty at all, it was of the
offense of criminally negligent homicide, rather than manslaughter.
Counsel was ineffective in advising Hamer to plead guilty to manslaughter and not
fully explaining his options to him. Had counsel fully explained the evidence and difference
between the charges of manslaughter and criminally negligent homicide, Hamer would not
have entered a plea to manslaughter. Had counsel fully explained the evidence in this case,
Hamer would have entered a not guilty plea and taken the case to trial. Under the facts of
Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 2
this case, Hamer would not have been found guilty of manslaughter or received 15 years in
prison.
Ground Two alleged that Hamer’s guilty plea was involuntary. In the case at bar,
Hamer entered a guilty plea without knowing what the State was required to prove and
without knowing that the evidence in fact showed that he was guilty only of the lesser
offense of criminally negligent homicide. He was clearly not aware of the full circumstances
concerning the law and facts of this case and therefore his plea should be set aside. Hamer
would not have entered the plea in this case had he been fully aware of all of the facts, law
and circumstances.
A guilty plea must be voluntarily and knowingly entered in order to be valid. When
a court entertains a plea agreement, it must assure itself that the plea is entered voluntarily
and knowingly. A defendant is required to be informed of all of the direct consequences of
the plea. See Fielder v. State, 834 S.W.2d 509 (Tex. App. - Ft. Worth 1992); Ex parte
Chandler, 684 S.W.2d 700 (Tex. Crim. App. 1985).
In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 (1970), the Court stated the
following:
“That a guilty plea is a grave and solemn act to be accepted only with care and
discernment has long been recognized. Central to the plea and the foundation for
entering judgment against the defendant is the defendant’s admission in open court
that he committed the acts charged in the indictment. He thus stands as a witness
against himself and he is shielded by the Fifth Amendment from being compelled to
do so--hence the minimum requirement that his plea be the voluntary expression of
his own choice. But the plea is more than an admission of past conduct; it is the
defendant’s consent that judgment of conviction may be entered without a trial--a
waiver of his right to trial before a jury or a judge. Waivers of constitutional rights
not only must be voluntary but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.”
Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 3
In the case at bar, Hamer was not aware of the full consequences of his plea and the
fact that, if he was guilty, it was only a lesser offense. Thus, his plea was involuntary.
V.
Based on the foregoing, Applicant prays that the Court reject the findings, conclusions
and order in this case.
Respectfully submitted,
/s/ Gary A. Udashen
GARY A. UDASHEN
Bar Card No. 20369590
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
214-468-8100
214-468-8104 fax
Attorney for Applicant
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing
Applicant’s Objections to Findings of Fact, Conclusions of Law and Order was mailed to the
Harris County District Attorney’s Office, 1201 Franklin Street, Suite 600, Houston, Texas
77002, on this the 29th day of October, 2015.
/s/ Gary A. Udashen
GARY A. UDASHEN
Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 4