gm 333'@»
Cause No. F-ZOlO-1896-D WHC-l
ry RECE|VED |N
` COURT OF CR|M|NAL APPEALS
E:X PARTE § IN THE DISTRICT coURT
§ NOV 3 0 2015
§ 362nd JUDICIAL DISTRICT
. §
BRANDON IsLAS § DENTON coUNTY, TEXAS
APPLICANT's REPLY To Sl'ATE's ANswER, Ab€lACCSfa. Ci€|'k
OBJECI'ION 'IO PROPOSED FAIDINGS AND CONCLUSI('X‘B'
AND SUPPLEMEN'RL MEDKFRANDUH OF LAW
This Reply is submitted pro se in response to the State's Answer (SHA)
and proposed findings and conclusions, received by me from the prison mailroom
on October 27, 2015. The State's Answer was postmarked on October 23, 2015,
presented in the Certificate of Service.
My Motion for Appointment of Counsel was submitted, via placement in
the prison mail system, on October 26, 2015, and file-stamped on October
29, 2015. That motion is made pursuant to TEX. CODE CRIM. PROC., art. ll.074
and is currently pending.
This Reply is dated and submitted, via the prison indigent mail systeml
on November _éL§_! 2015.
I. OBJECTION TO PROPOSED FINDINGS AND CONCLUSIONS
I generally object to the State's proposed findings and conclusions
as being made without adequate fact-finding by the habeas court. Further,
I specifically object to the failure to provide my former trial counsel and
l appellate counsel the opportunity to respond to my allegations of ineffective
assistance. Any such failure should require a remand to the habeas court
for further review. Ex parte Leos, (Crim. Ppp. 2006) WL 786873 (Lhrptd); Ex parte 'l‘atro,
(Crim. Dpp. 2006)(WL 826 7]l)(reremd required whm oomsel not affie%-D mc 1 page "5
RELIEF
The appropraite,relief would be to vacate this conviction, as I have
served a prison term that exceeds any term allowed for a misdemeanor offense.
Fletdier v. State, 214 S.W.3d at 9.
II. ADMISSION.OF BLOOD SAMPLE OONTRARY TO A NEW RULE OF LAW
During the pendancy of my appeal the U.S. Supreme Court established
a new rule of criminal procedural law, rendering Trans. Code Sec. 724.012(b)
unconstitutional as applied to the facts and circumstances of my conviction.
App. pp. 8~9; I>pp. Man. gm 6-10; P/tissouri v. M:Neely, __133 S.Ct. 1552 (2013)(decisicn date 4/17/13)
(oollecticn of eviSrrith v. State, No. l3-ll-694F(R, 2013 WL 5970400 ('It=_>x.7
l>pp. - Cbrpus G'u:isti 10/13/13, m pet.)(Men. Op. not p.b'd), withdraw and replaced by §_rl£h_
v. State, 2014 'Iex. Ppp. LEX[S 12372, decided 11/13/14 (omvictim reversed, case renarriled).
The reversal of the conviction in M was entirely the result of the application
of the Uly decision retroactively.
My appeal was filed in April, 2012, and the decision was rendered on
May 14, 2014. During‘that time period __D/ki_\l_ee£ was decided, and §r_t_i_thwas decided
and then reconsidered, and the State's PDR granted on February 11, 2015.
Islas Reply F-2010-1896-D V\HJ l Pag@ 7
Also, another appellate court decided that _N_bl\hel:__y_ applies retroactively as
noted in the State's habeas answer. SHA, p. 15: State v. Esher, 3315 'lex. Agp. LEX[S
772 ('Iex.` App. - Dallas 7/2'7/15, no pet.)(lvsn. Cp. mpub‘d).
As presented in Ground 4 herein and in my initial habeas submissions,
I was entitled to the application of the __p_l‘/H\le__e_l_y_decision to my conviction
for consideration on appeal. At least two other appeal courts retroactively
applied_Uly to cases on appeal. The State's assertion that it was "unclear"
whether _l`/ti__\lee_ly could be applied retroactively to cases on appeal is not supported
by the greater weight of precedent and the conduct of other Texas appeal
courts. See §rl;'_t_h_, 2014 'Iex. App. LEXIS 12372 (Cp. p. 15)(relevant c parte Nisvarger, 335 S.W.3d 611, 615.'(']lex. C‘rim. Ppp_.) 2011.).
`PRETRIAL OBJECTION TO ATTORNEY PERFORMANCE_
My pretrial objection to --the assistance of trial counsel is a matter
of record. FR'S: pp. 15-2!). At one point, the trial court terminated counsel's
appointment but reinstated the appointment when new counsel was noteximmediately
available.
DEFICIENT CONDUCT
'I'rial counsel rendered ineffective assistance by failing to develop
a firm command of lthe law and facts of this case through adequate independant
investigation resulting in an insufficient adversarial test of the State's
Islas Reply ~ F_2010-1896-D wpc 1 Page 9
case. This resulted in counsel's inability to provide any opening statement
and a rambling, incoherent, irrelevant closing statement; advice to stipulate
to a critically flawed judgment to establish a jurisdictional element; a
failure to object to law enforcement testinony that was obviously false;
and a failure to challenge the finality of a prior conviction used to establish
a felony intoxication offense.
The State incorrectlyassertsthat I am complaining of trial counsel's
conduct relevant to challenging the admissibility of the blood at trial.
SL H§m Ari,pi & ium\l. This was not stated in my habeas application. HIL
Ppp" pp.]f%ll. Because that was not part of my claim in Ground Three. I ask
that the Court disregard the State's argument presented in it's Answer. (Bzm
14 ga 84».
Likewise, the State has presented the same assertion in a different
manner by characterizing the claim as "Tampering." see S-lAi p. 13, item 8; oorpare
vdth.H;idzttmL pp.lO-UJ No claim of ineffective assistance, related to "tampering",
is expressed in Ground Three.
Because of the argument above, I specifically object to the State's
proposed Conclusion of Law No. 3. No attempt to re-litigate the issue of
admissability, based on "tampering" or other police misconduct has been made
in my habeas application. These are bad faith'smokeand mirror" representations
by the State and should be disregarded.
ITEM 2 - FAILURE 'I'O MAKE OPENING STATEMENT
Following the prosecutor's opening statement, my trial counseli Van~
zura, declined to provide an opening statement for my defense. RRh p.16
The State has argued that this may have been a strategic decision that does
not support an ineffective assistance clainn SB&'HA 9411 The several pre-
cedents cited by'the State addresses only a tactical decision to pass on
‘opening at the start of trial. Vanzura,however, passed on delivering an opening
Islas Rq>ly F-Z)lO-1896-D v\HC l ' Page 10
statement at the start of the defense case as well. RR7: pp. 168-69.
Although not making an opening statement alone may not be deficient
. conduct by itself, the complete lack of van opening statement may demonstrate
a lack of effort to provide.effective assistance. Stouffer v. Reymlcb, 168 F.3d
1155, 1163 (10th Cir. 1999). The opportunity to marshall evidence and provide
a blueprint of the upcoming defense case is a vital aspect of legal advocacy.
Jcnes v. Jc:nes, 988 F.Sipp. lGX), 1CD3 (E`..D. La. 1997); Perring v. NewYork, 422 U.S. 853, %2
(1975),.
Once the State has closed it's case presentation, defense counsel is
fully aware of the State's case removing any justifiable :str:'ateg§i:cr reason
to completely waive making an- opening statement. JoE, 988 E‘.Sug). at lCD3 N. 4.
By depriving.the jury of a roadmap of any defense theory, the jury had no
context to form reasonable doubt of guilt, which harms me by allowing the
jury to presume the lack of a~ viable defense. Stouffer v. Reynolds, 214 F.3d 1231,
1234-35 (lOth Cir. 2013).
ITEMS 3 & 4 - WITNESSES AND MEETINGS
The State incorrectly directs the Court to the appellate decision at
Opinion pages *13-14 to demonstrate that any claims regarding witnesses and
client meetings were resolved as issues. The State's assertion of disposition
of those issues is not accurate as the appeal court made no reference to
ineffective assistance in deciding appellate Issue Three. &]A Exh. Cat- *17-21;
SHA, p. 10 and N. 9.
'Ihe record reflects that two pre-trial hearing .were held, relevant to '
assistance of counsel. RR4 - Hearirgcn 2/7/12:’ FR‘S - [-Earirg cn 2/28/12. My lack
o'f contact with Vanzfir.ai was presented to the trial court. RR4: p. 8. The
lack of pre-trial investigation, regarding witnesses, was also presented
to’c:th`e trial court. RR4: p. 8. Nei'ther the trial or appeal court. made any
findings regarding those issues related to the effective assistance of counsel
isles Peply F-2010-1896-D nic-l Page ll
as claimed by the State.
ITEM 5 - INVESTIGATION
To provide effective representation, an attorney is required to develop
a firm command of the law and circumstances of the case through independant
investigation to allow the development of viable defense theories, provide
meaningful-5 assistnace regarding a decision to accept ~a plea offer, effectively
elicit testimony at trial, and generally subject the State's case to a meaningful
adversarial test. Giildress v. Jol'lnson,y 103 F.3d 1221, 1227 (5th Cir. 1997); bsynes v.
_St&£, 790 S.W.2d 824, 827 ('Iex. A;p. - Austin 1990); U.S. v. D:mes, 218 F.3d 496, 500 (5th
Cir. ZOCD); E.x parte Li_lly, 656 S.W.2d 490, 493 ('I\ex. C‘ri.m App. 1983); 'Eeist v. Soott, 885
F.Slpp. 927, 931 (E.D 'Iex. 1995); Ex parte langley, 833 S.W.2d 141, 143-44 ('Iex. Crim. App.
1992): Ex parte Chandler, 182 S.W.3d 350; 358 ('Iex. Crim. App. 2005). Vanzura's failure
to develop a firm command of the law and facts caused _him to advise me to
erroneously stipulate to a conviction for which finality was unproven; he
failed to even challenge the finality of a prior conviction used to satisfy
a jurisdictional element; he failed to recognize and correct the false testimony
. elicited by the prosecutor from a police officer/z and he failed to present
an opening statement laying out any viable defense, as well as providing"a
closing statement for the guilt phase of trial that essentially gave away
the case to the State. Further, his closing statement for the punishment
phase was rambling, incoherent, irrelevant anecdotal presentation.
ERRONEOUS STIPULATION AND FAILURE TO CHALLENGE FINALITY
In Ground One of the- instant application, original memorandum, and herein,
1 have presented the issue of non-finality of a prior conviction used to
satisfy an essential juridictional element". "".Vanz‘ura's failure to investigate
that conviction and recognize the defects, and apply the law to assert a
viable defense due to the defects was ineffective assistance. Ex parte Giardler,
182 S.W.3d at 358 (ignoranoe of well defined laws and legal ocnoepts); lang v. State, 764 S.W.2d
_ Islas Reply F-z)101896-D~ wmc-l Page 12
30, 31 ('Iex. PW. - San Antcnio 1%9) (a stipllaticn that destroys a viable defense is not strategy).
A failure to investigate a prior conviction is deficient conduct if a potential
defense is ignored. lVbore v. Jd'nscn, 185 F.3d 244; 265 (5th Cir. 1999), cert. denied
120 S.Ct. 522 (failure to investigate prior conviction is deficient die to pote'rtial ciafense);
Vasql.ez v. State, 830 S.W.2d `948,' 951 ('lec. G:im. Ag). 1992)(unreasorsble condlct for attorney mt
to advance defalse recognized by'courts and statutes); Bladdourn'v. Fbltz, 828 F.2d 1177, 1181-82
(6th Cir. 1%7 )(an error of law is not reasonable strategy).
By failing to recognize the potential defense of non-finality that would
result in a lack of jurisdiction, ?Vanzura's conduct was unreasonably deficient.
His failure allowed a felony prosecution and conviction when a misdemeanor
conviction and punishment may only have been possible. Pen.(bde§49AIXa);Vasmrz,
830 S.W.2d at 951 (harm is satisfied by ccnvictic:n if other result prdoable but for attorney
ardxi). Although the challenged felony conviction satisfies the Sziddani
prejudice prong¢ the State argues that the stipulations entered on the defective
advice of counsel bar any challenge to a lack of jurisdiction. SWN p.5;(komd
l daemi If the State's argument is persuasive, then TVanzura's advice harmed
me by preventing the later submission of a claim upon which relief could
be based, although a showing of specific harm may not be necessary. §ZE§
v. lockhart, 851 F.Zd 1115, 1117 (8th Cir. l988)(errcneo.ls stip.]lation pres,rres preju§ice).
But for his advice, I would not have stipulated to the 1993 DWI conviction.
'Manzura's defective advice to stipulate to flawed evidence required
for jurisdiction, in combination with the resulting conviction, felony punish#
menti and any barrier to a later challenge on appeal of that evidence, should
be sufficient as a single error to demonstrate ineffective assistance. Thoqxrn,
9 S.W.3d` at 813; U.S. v. go£, 104 S.Ct. 2039, 2016 N. 20 (1984).
*Nanzura sat silently while the prosecutor elicited false police testimony
regarding the authorization to collect the evidentiary blood used so extensively
against me. At first a police officer testified that the TPF-5l order was
. lslas Reply F-2010-1896-D wmc-l cage 13
a warrant. RR7: p. 108, lines 16-25; SD< 35 - Mandatory Q:der. The characterization
of a "warrant" was deceptively corrected to be a form bearing "... that judge's
signature." RR7: p. 109, lines 2-3. The prosecutor and police officer knew,
or should have lmown, that no judge's signature appeared on the form and
that no space for a judge's signature is provided. Van Zura should have
known that as well had'he conducted a sufficient investigation of the evidence.
"Vanzura's failure tov object or challenge the police officer on cross
examination allowed the jury to believe a judge authorized the collection
of the blood, which more than likely allowed greater weight to'i be given to
the evidence, as well as greater confidence'in the veracity of the police
officer' s1 testimony as a whole. FR7: pp. 111-114 (Va'lzirfa cross'exa¢m_i;'rstio'l, silent
as to document challenge). :_;Vanzura did nothing instead of seizing a valid opportunity
to create reasonable doubt in the case against me. l
The deficient conduct and harm described above flow from an overall
failure to investigate my case and develop a firm command of the relevant
law and facts allowingf.-adequate adversarial testing of the case against me.
ITEM 6 -,STIPULATION
The State complains of a lack of specificity regardng the stipulation.
That assertion is illogical. Only one stipulation of evidence was made.
The defective evidence and my claim was~adequately presented in Ground One
of the original application and memorandum. 1 have made a further presentation
of the claims herein. Based on the original submissions, the State was able
to connect the dots to address the issue but elected to argue lack of detail.
SiAl p. 12 andN. 10. The State's main argument should fail: due to it's obligation
to apply the doctrine of Libera-l construction. Guidrcz v. Lynatgh, 852 F.2d 832,
834 (5th Cir. 1989); Bledsoe v. Jd'n')So'), 1% F.3d 250, 255 (5th Cir. 1999).
ITEM 7 -' CLOSING ARGUMENT
The theory asserted as a defense by Vanzrira". was that I was not the
"c:
. 4Islas apply F-2010-1898-D mic-1 page 14
driver of the vehicle. At closing, Vanzura destroyed that theory due to
his commentary on the State's evidence and admission that my conduct acknowledged
guilt.
The judicious selection of closing arguments is a core exercise of attorney
discretion. Yarboro.)gh v. Centry, 541 U.S. 1, 8 (20)3). A closing statement should
clarify the issues to be resolved by a jury. ldu m:6. The argument should
not contain statements that explicitly-admit guilt. U.S. v. S'\ort, 181 F.3d 620,
624-25 (5th Cir. 1999).
During Vanzurajs closing, he favorable commented on the State's evidence
admitted as STX 37. HU:;L XB. Referring to the police car dash-cam video,
Vanzura stated, "That's real great evidence." .Rl Giving such favorable weight
to that evidence by the defense does nothing to create reasonable doubt.
Vanzura then stated, "Okay. ~He took off because it's a third DWI." BR7:5» ZX&
This essentially is an admission of guilt to the jury and was not based on
any prior interpretation of evidence presented to the jury. The statement
effectively destroyed the defense theory of another driver.
Vanzura made other incorrect assertions to the jury regarding evidence
presentation. RR7: ;p. 205-06 (SD( 37 irtrodlced‘throlgh ml'ic?:e officer testimony). The
dash-cam video was not introduced via police testimony, the video was published
to the jury during the blood evidence testimony. IEU HR 15%60
During the closing, for the punishment phase, Vanzura attempted a rambling,
disconnected, irrelevant, and incoherent plea for leniency that did nothing
but create an impression of weakness and no viable defense. Sulmier\h Fegrids}
168 F.3d 1155, 1162 (l(]:h Cir. 1999)»; 858 ;p. 186-88. He cited a work written by deToqueville
in 1835, stating that criminals are generally unfortunate people, and then
told a story about an off-duty police officer killed while walking along
some railroad tracks and struck by a train. Alcohol was not involved.
In a totality of representation review, the closing statements made
Islas apply F-2010-1896-D wmc-1 rape 15
by Vanzura serve to demonstrate a lack of effort to truly subject the State's
case to any adversarial testing. This complaint is not based merely on.a
difference in wordingi but rather on the substance. GIIer\h Jdmr£n,]lO FLH
1098, 1113 (5th Cir. 1997, cert.' granted, remerded), m remand 131 F.3d 452 (5th Cir. 1997).
I'I‘EM 8 - TAMPERING .,;.
The State has once again incorrectly stated that l am challenging blood
evidence admissability based on tampering and including that challenge as
part of the ineffective assistance claim. SBL p.l3 In supportl the State
directs the Court to the original Wbmorandum at page 9. That reference in
no way implicates an ineffective assistance claim and is contained as part
of my original argument for Ground Two. That is facially obvious and does
not support the State's disengenuine, bad faith representation related to
my ineffective assistance claim. This aspect of the State's defense to Ground
Three should be disregarded.
CONCLUSION
Vanzura's trial representation fell below the reasonableness presumed
for attorney performance. As demonstrated above, harm resulted or may be
presumed to have occurred. l once again request that Vanzura be ordered
to adress this allegation and that I be-providedcopiesof any affidavit or
other submissions at the time they are provided to the Court.
This conviction should be vacated due to the ineffective assistance
of trial counsell `.
IV. .APPEAL` CUJNSEL RH\IDHZED INEFFECI'IVE ASSISTANCE
Appellate counsel failed to identify and submit meritorious issues to
the Court, or advise me of the existence of any such issues for my consideration
or presentation later.
", t .'_":'_ . ',_ ’: '~_ " ` ' '.-'-~".r;
_ Islas Rq)ly ` F-2010-18%-D v\HZ-l Page 16
l' have previously requested that counsel be ordered to submit an affidavit
to address this issue. The State did not propose any findings or conclusions
regarding the effectiveness of appellate counsel's representation. (see St.
wsm ara apprised Finairps, c@rplusias, mrsiips ms 15, 16 ana capllsim-Ns. 4), Hab. ppgi
Ground 4.
STANDARD OF REVIEW
The denial of a meaningful appeal due to the ineffective assistance of
counsel is a cognizable habeas claim. Clivo v. State, 918 S.W.Zl 519, 522 N. 8 ('llex.
Crim. Agp. 1996). The two-prong S;rickland` test applies to this claim. M
Phi111ps, 210 F.3d 345, 348 (5th cir. 2000); Rsis v. csrtemsn, 522 F.3d 517, 531 (5th cir.
3108, cert. dei'd). The applicable standard of reasonableness requires that
while not every non-frivolous ground be raised, meritorious grounds solidly
based on law..and precedent should be presented.4 Phi]lips, 210 F.3d at 348; E'S_,
522 F.3d at 532; Arre`dor v. Quartermen, 458 F;3d 397, 410 (5th Cir. 206 cert. den'd): Mn;s_
v. Smith, 528 U.S. 259, 285 (20(!)).
The State incorrectly asserts that I must demonstrate that but for counsel's
failure, l would have prevailed on appeal. EHA, p. 14. Prejudice is demonstrated
by showing that, but for counsel's failure, the' probability of a".dif'ferent
result exists. Smith v. Robbirrs,v 528 U.S. 'at 285; Fhillips, 210 F.3d at 348; M, 458
F.3d at 411'.
RIGHT TO COUNSEL
l had the right to effective assistance of counsel for appeal. lrnbard
v. Lynaugh, 868 F.2d 1475; 1479, 1485 (5th Cir. 1989); league v. Scott, 60 F.3d 1167, 1170 (5th Cir.
1995).
ARGUMENT
ITEM l - FAlLURE TO RAISE LACK OF FINAL`ITY OF PRIOR CONVICTION
The 1993 conviction pled in indictment elevation paragraph one was necessary
element of the offense alleged as a felony. see Ag>licant'sm‘em. of law, G:omd 1;
Islas Feply F-2010-1896-D VsHC-l Fage 17
Pen. m 49.09(b)(2); State»v. Mewbolrn, 993 S.W.2d 771, 772 ("Dex. App. - 'lyler 1999); Barfield
'v. State, 999 S.W.2d 23, 24 (’Iex. Dpp. - Pbustcn [14th Dist.] 1999). Without proof of
the finality of that conviction, the trial court was deprived of jurisdiction
of the case. Code Crim. Proc. art. 4.057'1Vewbourn, 993 S.W.2d at 772; Barfield, 999 S.W.Zi
at 24N. 1. On appeal, the failure to prove two prior convictions requires
acquittal or a modification of the judgment and a new punishment trial. Barfield,
999 s.w.zd ar 26; Reyes v. State,~ 394-s.w.-3d 809i 812 ('iex. ppg - pnm-1110 2013); Lurdgren
v. Statei 436 S.W.3d 399, 400 ('Iex. App. - Et. Wo:'th 2014; Wbsquia v. State, 936 S.W.2d 714,
"m('Iex. ppg-Ft. mrth1996).
A lack of jurisdiction by the convicting court would render any punishment
imposed illegal as not being authorized'by law., Ex parte Pena, 71 S.W.3d 336, 339
(iex. crim p@. 2002)("111egel" defined es mt minimized by ls»); mizell v. state 119 sw.3d
804, 806 N. 7 ('Iex. Crim. App'. 2303). Relief from an illegal sentence may be obtained
by direct appeal or collateral attack. M, 119 S.W.3d at 806; _Pel;)a, 71 S.W.3d
at 339and N. 1. Jurisdictional claims are not waivable and a district court's
jurisdiction in the instant case is only had when the felony predicates are
satisfied. Miller v. State, 939 S.W.2d 586, 592 ('Iex. Ppp. - Austirr:1995)(jurisdictio'1a1
matters mt »eiveldle_); code crim Prec. art. 4.05; wewbdim, 993 sw.zd et 772.'
Appeal counsel failed to recognize the defective judgment the State
claims proves finality of a conviction required as a jurisdictional element.
The failure of counsel to present the issue was conduct that was not reasonable.
The issue is arguable in- statute and precedent and would require a different
result from the appeal court. Fletcher v. State, 214 S.W.3d 5 ('lex. Crim. P;p. 2007)(at
8 - no harmless error analysis.reqdired; at 9 - proper reredy is reversaland remand); M
v. Robbins, 528`U.S. .at 285. Counsel failed to adequately develop a command of
the law and precedent to properly apply that knowledge to the circumstances
supporting this issue and make an informed decision on its merits. _U.S._v.
Phillips, 210 F.3d at 348 (reaso'!ableness starr;lard); Eb<_parte Ybarra, 629 S.W.2d 943, 946 ('Iex.
isles Peply F-2010-1898-D wit-1 ' Pege 18
Crim. App.'. 1982) (effective assistance reqlires firm command of facts ard law, thcxolgh investigation
is fcundaticn of effective assistance); Elx parte Giandler, 182 S.W.3d 350, 358 ('I\ex. G:iln. App.
2005) (ignorance of mall-defined statutes, general laws, cr legal p:qacsitio"ls not excusable).
Counsel's failure '1 fha"s:- prejudiced me by failing to present a juris-
dictional error'upon which relief would be required if proven true. The felony
sentence imposed is illegal if the jurisdictional`§ error only allowed for
a misdemeanor sentence at the time of trial. l
ITEM 2 - FAILURE 'I‘O CHALLENGE ADMISSABILITY OF'BLOOD SAMPLE EVIDENCE BASED
ON MCNEELY
The U.S. Supreme Court rendered it's decision in D/ti\leely on April 17,
2013, during the pendancy of my appeal) which concluded on September 29, 2014,
over one year~later. Although the length of the appeal review period was
directly due to further proceedings regarding admissability of the blood
sample evidence due to police misconduct, counsel failed to also challenge
admissability based on the illegal seizure of the evidence. see Ag)licant's
P/En. cr law, G':oind 2.- This failure was unreasonable due to the extensive use
of the blood evidence at trial'. SIX'- 397 RR7 pp. 138-159. Further, the collection
of the blood sample was decep_.t?:i’v;e“ljy mischaracterized during testimony elicited
by the State from a police officer. P§plioant's Mem. of law, p. 7; RR7: pp. 107-109.
lt cannot be said beyond a.reasonable doubt that the use of the blood evidence
did not significantly contribute to the jury verdict. -Had my trial counsel
raised the constitutional claim allowed by ,I‘/bNeely, it is more than probable
that a new trial would be required.
The State claims that it is "unclear" whether or not MiNeely could have
been applied retroactively, citing only one case from a different state to
support this lack'of.clarity. see SHA,Jp. 15. The greater weight of precedent
relevant to a 'Dexas conviction clearly establishes that I was entitled to
the application of leNeely~ to the appellate review of my conviction. Danforth
isles Peply F-2010-1896-D mic-1 Pege 19
v. Minresota, 552 U.S. 264 128 S.Ct. 1029, 1032 (2£!)*); Wnartoi v. Bccking, 549 U.S. 4C6 127
S.Ct. 1173, 1180 (2(07); State v. Esher, No. 05-14-00694-CR, 2015 'Iex. App. LEX_`[S 7722 ('Iex.
Ppp. - Dallas 7/27/15, m pet. ); Allen v. leed, 427 F.3d 767 (10th Cir. 2CD5)(at 770 citing
Griffith v. I