WR-58,474-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
July 1, 2015
Transmitted 6/30/2015 4:38:57 PM
No. WR-58,474-02 Accepted 7/1/2015 8:10:31 AM
ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
Ex parte Alberto Rodriguez
Applicant
On Petition for Post-Conviction Writ of Habeas Corpus Pursuant
to Article 11.07 § 3, et seq., C.Cr.P., in Case No. 700071 in the
178th District Court of Harris County
Motion for Rehearing
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Alberto Rodriguez, Applicant, by and through
David A. Schulman and John G. Jasuta, his undersigned
attorneys of record, and respectfully files this motion for rehearing,
and would show the Court:
Procedural History
On April 5, 2011, Applicant filed his second application for
post-conviction writ of habeas corpus, alleging that: (1) the juvenile
and trial courts lacked jurisdiction due to inadequate service in
the juvenile certification proceeding; (2) trial counsel rendered
ineffective assistance; and, (3) appellate counsel rendered
ineffective assistance.
The State submitted a proposed order designating issues on
April 25, 2011. The habeas court timely entered its order
designating issues on May 19, 2012.
On September 21, 2012, the habeas court conducted an
evidentiary hearing on Applicant’s allegation of a jurisdictional
defect. During that hearing, the parties submitted a set of agreed
facts.
Applicant submitted his proposed findings of fact and
conclusions of law on October 25, 2012. The State did not submit
its proposed findings and conclusions until December 23, 2013
(HCR 125). Applicant filed objections to the State’s proposed
findings on February 3, 2014 (HCR 181).
On June 23, 2014, the habeas court adopted the statement
of agreed facts submitted by the parties during the hearing
conducted on September 21, 2012; made its own findings of fact
and conclusions of law; and ultimately recommended that this
Court grant relief on Applicant’s first and third grounds for relief,
and deny relief on Applicant’s second ground (HCR 189).
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On June 17, 2015, this Court issued its opinion. Ex parte
Rodriguez, _____ S.W.3d _____ (Tex.Cr.App. WR-58,474-02; June
17, 2015). Applicant would respectfully show the Court that it has
placed a burden on juvenile defendants and practitioners that has
never previously been found in the law, and has reached the
wrong result. Additionally, the Court failed to address Applicant’s
third ground for relief.
Arguments in Favor of Reconsideration
In its June 17th opinion, the Court correctly recites the fact
that the summons to the certification hearing of August 1, 1995,
was served afer the fact of the hearing and did not refer to any
other date. The Court correctly states that no record from these
hearings exist. Nevertheless, the Court states that the certification
issue was tried, without there being any support for that assertion
in the habeas record.
Ultimately, however, the Court’s decision rests on the
unspoken premise that the facts in this case show that the service
was essentially proper with only a “defect,” or two. This unspoken
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ruling is neither supported by the law nor the facts, and flies in
the face of decades of contrary case law.
The Court’s ruling acknowledges that the law of the area of
minors and waivers of their rights with regard to juvenile
proceedings was well defined, and yet the Court ignores those very
cases. The Court wrote, “we and our sister court have also held
that the juvenile cannot waive the service of the summons for the
transfer hearing, even if the juvenile attends the transfer hearing.
These holdings are in accordance with the common-law rule that
a minor does not possess the legal capacity to waive service of
summons, nor can anyone waive it for him.” Rodriguez, slip op.
at 6.
Service versus Defect In Service
An important part of the Court’s ruling is a re-writing of the
law to hold that the failure to comply with the absolute
requirements of Family Code § 54.02, such as the requirement for
service two days before the hearing, can be a mere defect of the
mechanics of service instead of an abrogation of a statutory
requirement. Rodriguez, slip op. at 8. When taking this “about
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face,” the Court ignores both its own holdings and those of its
sister Court, the Supreme Court of Texas, both of which have
routinely held that a deviation from the statutory requirements
deprived the juvenile court of personal jurisdiction over the
juvenile.
The facts of this or any other case are immutable. The law in
effect at the time of an offense, should, similarly, be immutable.
Between the time of the offense and the day immediately prior to
the Court’s June 17th opinion, the law was likewise immutable,
and correctly interpreted by the habeas court, but no more.
The failure to properly serve Applicant, as admitted by the
State and this Court, and as demonstrated in the record and
found by the convicting / habeas court, deprived the juvenile
court of jurisdiction from that point onward. The juvenile court
did not have the power to hold court on Tuesday, August 1, 1995
(“Tuesday”), without proper, and timely, service, and this did not,
and could not, have happened. Any order which this Court might
care to add to the list of its speculations as an action which might
have “continued” the hearing until Friday, August 4, 1995
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(“Friday”), would have been worthless, because it would have been
entered without any jurisdiction. In essence, there was no hearing
to continue.
This is not a case of proper service, as the timing was a part
of that equation, and the summons involved was not timely served.
There was never a hearing on Tuesday because Applicant was not
served with service complying with the statutory requirement of
two days notice, and the summons which was untimely served on
Tuesday did not and could not serve as notice to a Friday hearing.
Moreover, there is no showing of any other service of notice of a
hearing to be held on Friday. The defect was not in the failure to
serve the “notice” until almost two hours after the “hearing”
commenced, it was in the failure to give the required two days of
notice.
The habeas court’s findings and recommendation correctly
view the law in effect, the failures of the State in effecting
jurisdiction over the juvenile, and the consequences of those
failures under the law. Those findings are supported by both the
law and the facts and, according to its own long standing
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precedents, this Court should accept them and not re-write both
history and the facts to reach a contrary result.
The Burden
The Court holds that an applicant, in order to obtain relief
from a “defect of service” on collateral attack, the record must
affirmatively show the absence of jurisdiction. The Court then
neglects both the existing case law and the facts in deciding the
question and, specifically as to this case, creates an
insurmountable burden, heretofore unknown in the law. That
there is no record which can be produced by either Applicant or
the State is, in effect, being held against Applicant despite the fact
that the making, and keeping, of that record was entirely out of
his hands -- and that Applicant raised the “no jurisdiction” claim
at issue in this (“-02”) application years earlier, in his “-01”
application.
That the Courts or the State, either of which could have easily
secured the record when Applicant’s “-01” application was first
presented, are not assigned any burden or responsibility
whatsoever is clear. Given that the Court used the misplacement
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of the record as the basis for denying relief, it is unclear why the
Court has placed the burden entirely on the one person who had
no control over the record, when it was the State and its agencies
who exercised control over the record, and who had the earlier
opportunity to produce the record.
While requiring the record to affirmatively show lack of
jurisdiction, the Court ignores the facts of the case, when it fails
to acknowledge that any service which was had, defective or not,
was insufficient under the case law to confer jurisdiction over
Appellant in the juvenile court. The record affirmatively shows the
lack of jurisdiction under the law and nowhere in that record is
there any showing to contradict or alter that status. The Court
admits as much in the opinion. By any measure of the law prior
to the Court’s June 17th opinion, Applicant has met his burden.
By failing to properly address the failure of the service it
admits was inadequate to confer jurisdiction, and the failure of the
State to properly maintain records it was required to maintain, the
Court ignores its duty to respect the law and the facts. To require
Applicant to prove the negative, that the State did not at some
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point between Tuesday and Friday, properly serve Applicant in
such a manner as to acquire jurisdiction, a literal impossibility, or
that he properly waived service of proper and binding summons
service by re-labeling the defect such that a minor would be
capable of understanding the difference and make a proper waiver,
is an abdication of the Court’s duty to the law.
Instead of the record, upon which reliance cannot be had due
to no fault of Applicant whatsoever, the Court relies not only on a
complete abandonment of the law of service on a juvenile, but on
rank conjecture.
While service of the summons was defective, applicant might have waived
any defect in service on the record at the hearing on either August 1 or
August 4, and the reporter’s record showing a waiver may no longer exist.
Rodriguez, slip op. at 12 (emphases added). Any such waiver
had to meet strict guidelines under Family Code § 51.09, which
this Court seemingly accepts, the memorialization of which was
entirely the duty of the State and its agencies. Nevertheless, this
Court rejects any requirement of a record except as maintained by
Applicant, and faults Applicant for not being able to produce that
record to prove the negative, all in one surmise, without one fact
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upon which to rely. This Court is not applying the proven facts to
the law, as did the habeas court. It is, instead, applying
conjecture to re-written law in an effort to deny the requirements
of the law in existence at the time. The Court completes its
journey through fancy with its statement,
The possibility exists that applicant was served during the August 1 hearing
and waived the lateness of service on the record at that time. The more
likely scenario, however, appears to be a waiver on August 4, given the
docket-sheet entry for that date that any further notice was waived by
respondent. This entry may relate to a waiver on the record at the August
4 hearing of defects in service.
Rodriguez, slip op. at 13. These three sentences expose the very
basis of the Court’s decision as nothing more than speculation.
The Court states that the Tuesday, August 1 hearing was
reset, Rodriguez, slip op. at 13, but this does not accurately state
the record, nor does it accurately state the law.1 The event of
Tuesday, August 1, 1995, a proceeding without jurisdiction under
the law, has not been shown on the record to have been reset.
Rather, it was terminated so that proper service of summons could
be had. Succinctly stated, under the law as stated in the petition
1
This also seems to be contradictory to footnote 50, Rodriguez, slip op. at 14-
15, which states that the record does not establish why the hearing was
rescheduled.
10
and the briefs before this Court, there was ineffective service of
summons as to the August 1 event; that attempt did not give
notice as to August 1, there is no record “reset” of the August 1
hearing until August 4 -- even if there was a valid hearing to reset
-- and the record does not show any service whatsoever to the
hearing on August 4, 1995.
By its failure to grapple with the failure of any attempted
service to comply with the requirements of the law, and the failure
of the record to show any proper invocation of jurisdiction over
Applicant, the Court's attempt to avoid the law by
mis-characterizing the mistakes as mere defects in the service
ignores the law. Instead, the Court places the burden on the
Applicant to preserve a possibly non-existent record of proceedings
which were required by statute to be on the record, and to
demonstrate that the record would not show that which never
happened, proper service of summons or proper waiver of such
service.
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There is truly no way the Applicant can demonstrate that the
speculation engaged in by this Court is false, speculation in which
the Court engages after rejecting Applicant’s own speculation:
This surmise on applicant’s part is not sufficient to affirmatively show that
a proper waiver did not take place. Even with a waiver, the juvenile court
may have thought it prudent to satisfy the two-day notice rule by delaying
the hearing to August 4, or applicant or his attorney may have insisted on
the two days as a condition of executing the waiver. Or the hearing may
have been rescheduled to August 4 for reasons unrelated to the lateness of
service.
Rodriguez, slip op. at 14. The bottom line is that everyone is
speculating because the record cannot be produced, neither by
Applicant nor the State. Perhaps the Court should speculate as
to whether, had the State made an effort to find the record when
this contention was first raised in the “-01” application, and at a
time when the State had both an opportunity and duty to respond,
and prior to this Court’s dismissal of that application and the
jurisdictional issue, the record would have been now been
available.
The State, of course failed in its duty to respond in detail to
Applicant’s “-01” application, the habeas court failed to ensure a
complete record adequately supporting its recommendation to
deny relief accompanied that recommendation, and this Court
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chose to dismiss on a procedural point eschewing timely
resolution of an allegation questioning the jurisdiction of the Court
of conviction. If either the State or the habeas court had done its
duty under the law at the time of the “-01” writ application,
speculation might not be necessary, as the record would be in the
Archives. Instead, Applicant is made to pay for those failures, over
which he had no control.
The Court’s opinion of June 17th is rife with speculation and
assumption, as well as misplacement and misunderstanding of the
burden placed on Applicant. It was not he who was in charge of
the record, which the Court speculates was produced,2 but it is he
who must suffer. This despite his sworn statements that there
was no service and that he made no waiver. Only by producing
the record, over which Applicant has no power, and which the
State cannot produce despite its duty to preserve that record, can
Applicant overcome the speculation in which the Court engages.
2
See Rodriguez, slip op. at 14 (FN 47).
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The Court has truly set an impossible burden and, in so doing,
has itself denied Applicant due process of the law.3
The Court has held that the findings and recommendations
of the habeas court should be accepted when they are supported
by the law and facts developed. Ex parte Navarijo, 433 S.W.3d
558, 567 (Tex.Cr.App. 2014); Ex parte Weinstein, 421 S.W.3d
656, 664 (Tex.Cr.App. 2014). It is true that when an independent
review of the record reveals that the trial judge's findings and
conclusions are not supported by the record, the Court may
exercise its authority to make contrary or alternative findings and
3
Compare the burden imposed in this case with the outcome had the
jurisdictional issue been properly raised on appeal and any part of the record,
including the juvenile certification hearing, “gone missing” at the time of that
direct appeal. The Court, citing to Dunn v. State, 733 S.W.2d 212 (Tex.Cr.App.
1987), wrote:
It has long been the rule in this State that "[w]hen an appellant, through no fault
of his own or his counsel's, is deprived of a part of the statement of facts which
he diligently requested, the appellate court cannot affirm the conviction.
Austell v. State, 638 S.W.2d 888, 890 (Tex.Cr.App. 1982). See also Gamble v.
State, 590 S.W.2d 507 (Tex.Cr.App. 1979); Timmons, supra, at 512; Pierson v.
State, 147 Tex.Crim. R., 177 S.W.2d 975, 976 (1944); Navarro v. State, 141
Tex.Crim. 196, 147 S.W.2d 1081, 1085 (1941) (Opinion on motion for rehearing);
and now also Tex.R.App.Pro.Rules 210(a) and 50(e). Further, this rule has been
applied whether all or only a portion of the statement of facts was omitted. See
Austell, supra (voir dire examination); Gamble, supra (final arguments during
guilt and punishment before the jury); and, Hartgraves v. State, 374 S.W.2d 888,
890 (Tex.Cr.App. 1964) (hearing on motion for new trial).
Harris v. State, 790 S.W.2d 568, 574 (Tex.Cr.App. 1989).
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conclusions. Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim.
App. 2008). In the present case, the habeas court’s findings are
completely supported by the habeas record developed by Applicant
and the State. Only by re-writing the facts to amend the record to
encompass rank speculation can the Court reject those findings.
Unfortunately, the Court has done just that.
The habeas court heard the facts over a protracted period of
time and, after due consideration of the law and the facts, and
without resort to any speculation whatsoever, found that Applicant
was never served with summons, that the juvenile court lacked
jurisdiction, and that Applicant is entitled to relief. Only by
rejecting the facts as found, only by rejecting the law as it was in
effect and re-writing it to fit the situation at hand, and only by
engaging in absolute speculation about what might have been, can
the Court’s opinion be validated.
The Opinion Is Incomplete
The Court’s opinion of June 17th disposes of Applicant’s
jurisdictional arguments by re-casting the failure of summons as
a “defect in service,” as opposed to a failure of service. The point,
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not having been raised on direct appeal, was treated as a collateral
attack and the rules altered with regard to the review. The Court,
in so doing, avoided the third allegation raised by Applicant in his
application, for which the habeas court had recommended relief
be granted. The Court’s action, however, demonstrates the truth
both of the third allegation and the habeas court’s
recommendation to grant relief on that ground.
In that allegation Applicant contended that his appellate
counsel was deficient for failing to raise, as a point of error on
direct appeal, the juvenile and trial courts' lack of jurisdiction.
Applicant extensively argued the juvenile and trial courts' lack of
jurisdiction in the instant application and supporting
memorandum under his first ground for review and referred to
those points in the third ground for review, alleging ineffective
assistance of appellate counsel for this very failure.
The facts establishing this point of error are clearly reflected
in the record and were available to appellate counsel on direct
appeal. Further, appellate counsel would have been permitted,
under the law, to raise this point of error on direct appeal, despite
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the fact that it concerned a transfer from juvenile court. See In the
Matter of D.D., 938 S.W.2d172, 174 (Tex.App. - Fort Worth 1996),
wherein the Court of Appeals discusses the applicability of Article
44.47(d), C.Cr.P. The lack of a record would have had very
different ramifications, none of which would have subjected
Applicant to a requirement that he produce that record or waive
his error.
Those rules which require a timely and specific objection,
motion, or complaint, do not apply to “absolute systemic
requirements,” and failures of jurisdiction of the person and
jurisdiction of the subject matters are such errors do not require
an objection. See Alrich v. State, 104 S.W.3d 890, 895
(Tex.Cr.App.2003), citing Marin v. State, 851 S.W.2d 275, 280
(Tex.Cr.App.1993).
The third allegation raised within the application, and for
which the habeas court recommended relief, discussed prejudice,
even prior to this Court’s opinion in this case which absolutely
establishes the prejudice. While it could formerly have been
argued that appellate counsel’s failure to raise a jurisdictional
17
error, i.e., one which can be raised at any time, even during
habeas review, demonstrated that counsel’s failure was harmless
due to the lack of waiver, that argument can no longer be
supported. The harm flowing from the ineffective assistance of
appellate counsel is easily seen in the reflection of this Court’s
opinion.
Following this Court’s opinion, it is clear that appellate
counsel’s failure condemned Applicant to a life of incarceration.
But for appellate counsel’s error in failing to raise jurisdictional
grounds on appeal, there is a reasonable probability that the
appellate court would have vacated the judgment and remanded
the case to juvenile court. See Light v. State, 993 S.W.2d 740,
750 (Tex.App - Austin 1999).
The Court’s opinion of June 17th makes it abundantly clear
that the failure to raise the jurisdictional issue, which this Court
plainly recognizes, in a timely manner resulted in rejection of the
claim on habeas corpus. In doing so, this Court has accepted that
harm flowed from counsel’s failure. This Court should re-hear the
case, in a complete manner, and dispose of each of the habeas
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court’s bases for its recommendation to grant relief. The failure to
do so denies Applicant a full and complete review of the
application he filed as well as the rulings, findings and
recommendation of the habeas court, and, in so doing, denies
Applicant due process of law.
Conclusion
The habeas court’s findings and conclusions are more than
adequately supported by the record, unless one re-writes both the
law and the facts to include speculation, and imposes an
impossible burden on the Applicant. The habeas court’s findings
and recommendation do not rely on the placement of an
impossible burden on the Applicant of proving a negative by
production of a record in the care of the State which the State
admits it cannot produce. The habeas court’s findings rely on the
record produced during the habeas proceedings during which the
State had ample opportunity to rebut the sworn allegation of
Applicant, and they should be followed.
Additionally, the habeas court’s recommendation to grant
relief is still before the Court without resolution, albeit acceptance
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of the allegation of ineffective assistance of counsel. This Court
should rehear and/or reconsider the merits of the case and fully
consider all of the bases for the habeas court’s recommendation
to grant relief.
Prayer
WHEREFORE, PREMISES CONSIDERED, Applicant and the
undersigned respectfully pray that the Court will reconsider its
action of June 17, 2015, vacate its written Opinion of that date,
and accord Applicant the relief recommended by the habeas court
and which the habeas record reflects is appropriate.
Respectfully submitted,
_______________________________ ________________________________
John G. Jasuta David A. Schulman
Attorney at Law Attorney at Law
lawyer1@johngjasuta.com zdrdavida@davidschulman.com
State Bar No. 10592300 State Bar Card No. 17833400
1801 East 51st Street, Suite 365-474
Austin, Texas 78767-0783
Tel. 512-474-4747
Fax: 512-532-6282
Attorneys for Alberto Rodriguez
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Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 3,836 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
June 30, 2015, a true and correct copy of the above and foregoing
“Motion for Rehearing” was transmitted to Lori DeAngelo
(deangelo_lori@dao.hctx.net), counsel of record for the State of
Texas, via the eService function on the State’s eFiling portal.
_____________________________________
John G. Jasuta
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