Davis, Marcel

3/2 , '7@0?0/ ` "1N res zssru JuolclAL nlsrnlcr count ', Foa ‘ t nALLAs ccvwrv, rExAs HRlT NO. W09~57260*R(A) APPUCAM-'S OB‘JECTION 10 THE TRIAL C_CURT’S FINDINSS OF FAG¥ M|D CONCL'US]ON oF nAw ~ m »tr“ ' 1 RECEVE»IN COURT OF CR|M|NAL APPEALS FEB 17 2015 f Abe! Acosia, Clérk 45 B?ARTE IMRCEL DIW¥S * umw nve m ams M§J-¢!: § \'\ozl»\q‘ mm mm F.M. 3522 AB~!LE¢¢E. T:-:)'.As. mm _ _ WRIT 80» NOS-S?Z€O-R(A) _ _w ' ExPARIE ' ` . g 1a rue 2651" Junxc laL _ DlSTRl€T COURT FOR HARGEL DAVIS, DALLAS COUNTY, TEXAS" ‘APPLICANT's~oBJ£chou to rue IRlAL couar's Frnoluss or vast Ann coucLuslou "' oF uaw 10 1HE HONORABLE JUDGE OF SAlD €GURI: ` ucc come larccl navio¢ vro~sc¢ by way of objection to the Triai court°a tindinge of Fact and conclusion ct saw for the tollou1ng roaaonas ' ' ~'(l) The state Fact’e supporting Applicant'a plea to be knowingly and voluntaty¢ also that trial counaol rendered `e££ective assistance during the plea colloquy despite not .adv1eing Applicant ‘to_ plea guilty ao stat in counsel'o atfidavit. _ ' Appl1cant asserts that such facto should not be adopted :by the court, because they are unreasonable and contrary to ~Btrickland v. Haohington 466 U. S. 687, 694 (l984); Bernandez v. state 726 Sw ad. 53, (Tex. crim. App. 1986); esparza 9001.736 sw za-zas, 286 (rez;crim. App. 1937); 3111 v. toexhart 474 o.s. 52, (1935) ana aoytin v. Axavaaa_ : 395 0.8. 242 (1969)¢ because such plea wao.unknowingly and involuntary because trial counsel failed to fully appraiae_” Applicant of the nature o£ the charge against him and tho__ consequences-of ouch plea, which the.$tate (at 3) of it‘u'y findings admit that trial counsel never informed Applicant prior to the ontry_ot his guilty plea about the culpable mental state of recklessly in relation to the charge offense of injury to'a child or the effects of such culpable mental state during the punishment and centencing pheae. which the - lnnncmrscumnnm". gus c "_hu» 2` ,unxr se. noe~s?aee~n¢a) Tex. penal code Ann f 22.04 (e)~(g) provides that the rangev of punishment for Injury to a Child is determined by then mental state in which the offense was committed. ns stated in none v, state 102 sw 3a (zoos_)= she felony murder rule dispense with the necessity of proving menrea accompanying ~ 'the homicide itself¢ the under lying felony supplies the >;M culpable mental state. . _‘ ' 1 A person commits the offense of injury to a child it he intentionally¢ knowingly¢ recklessly¢ or with criminal ne gligence causes (l) serious bodily injury (2) serious 11 ' mental deficient¢ impairment or injury or (3) bodily injury to a child (Tex. Penal Code Ann § 22. 04 (A) v rnon 2003) While Tex. Penal Code Ann § 22. 04 (e)- (g) Vernon _2003’ provided that the range of punishment for injury to a child is determined by the mental state in which the offense was _‘ committed, the offense of felony murder under v!on. Penal case 'Ann 5 '10,02' ¢b)(a)`, vernon aeo_`a is a rican degree felony regardless of the culpable mental state tor'the underlying felony of injury to a child. 1 ln general¢ and indictment must plead every element which must be proven at trial, an allegation of an essential culpable_.l mental state is a element et the offense. Feilure to include a culpable mental state unually is a defect of substance¢ normally when there is a defect in substance there isa failure to charge a purported offense. l Under Te;. code crim Proc. Ann Art. 2l 19 (vernon l989) determining whether the indictment' s omission affected Applicant' s substantial right turns on the question of whether Applicant had notice¢ adequate.to prepare his defense. , ' !n general an indictment must plead every element which must be proven at trial ninkin v. State 894 sw 2d 330¢ 338, Tx. cr. App cert. denied¢ 516 0 8. 832, 133 L Bd 2d. 590 115 Sct 106 (1995), An allegation of an essential culpable 1 mccune means f had z WRIT HOo UBS*$?ZGG*R!&) MBNTAL STATE USUALL! 18 h DBFBCT 0? EUBSTANGB¢-Btuder V» score 799 sw `2a 263 (mox. crim npp. ieeo). capone wanton 549 sw 2d 751 (Tsx. crim. App. 197?) normally chen there is a detect in substance¢ there is a failure to charge a purported ottense. sees stetson v. State 713 sw 20 724, 725 (Tcr. €r. App. 1986).' I£ the omission of s culpable mental state for the underlying felony was a matter of torm» then article 21.19 provides the test for harmless error. The question is whether the omission is one of substance or form because the code of criminal croc. categorires errors in a charging instrument a either defects ct substance or defects of form, Tox. codo. crim noo. Ano. ne shoe vernon 102 sw 3a aaa mesa provides shoe ` there is no exception to the substance o£ an indictment or information except for the four matters listed. Applicant asserts that trial counsel performance was deficient because counsel was required to have firm command of the tow and roots of the case duparte Lilly 656 sw 26 490 (Ter. crim. App. 1983) and had trial counsel done so¢\ counsel would have been aware that the omitted culpable mental state of recklessly from the indictment by the state in it's amendment was a detect in substance and was a £ailure to charge a purported offense in relation to the offense of !njury to a child. ns cited in Floroo v..state 102 sw ad 328 (2003). 'theretore requiring an objection and the filing or a pretrial motion to quash the indictment under tor.code.erim prcc¢ Art 1.14 in light of Studcr vo Stltc 799 SW 26 263 (Ten. crim. App. 1990) due to a failure of the indictment of the indictment to plead every element oi the offense as set out in binkin v. state 697 sw 26 413, 415 (Tex. crim.'npp. 1985) as set out in Plores v. State. who trial court facts and finding in relation to trial counsel‘s eliciting extraneous offense or bad acts testimony mm mcmann w s ` nga 4 HRIT 80¢ 809¢57230.8(§) iron applicant during the punishment and sentence about thc manner of cuppocting himself by-duug doaling, which counsel believed it bettor for applicant to bo candid with the ooutt. Applicant asserts that tdc state court finding and dacta that cuppoct counmcl'n bclio£¢ that Applicant should bc candid with the Court and out of nowhere in£ccm the sentencing Court that he was a doug doalcu, ia unreasonable and could navor_bo considered plausablo basis in strategy or tactica_!or his actions aa cited in sxpactc turns 607 sw zd. 370¢ 372 (Tcx. crim; Appz 1950) s aspects canau¢ 423 Aza, sues Aao:ews v. state 159 stD 93, 102. ` Appiicant asserts that such testimony was highly prc - judice under 403 ct the ?x R. nolo ct Evidcnco, thc probative value of the evidence was substantially outweighed by thc danger of unfair prejudico. Also could novcc be trial stratogy in the absences of a properly filed and rulod on motion of noticc of intent to compel the statu_to aware Applicant of it'a intent to usc such extraneous o££onuo_or bad act during the punishment pnaaa¢ as act out undac !n. uddc-¢rim. Pcoc. Att. 37.07 § (A)(q) and ?ocd v. Stato 106 SW 36 765 (Tax; App. Toxackcna 2003). Ab§licant asserts that such plea could never be knowingly and voluntary_bocauco the Foct¥c¢`?indingc; and nf£idovit from trial counsel that the Btatc relies on ia unrcasonable and contrary to §oyhin v. alabamp 395 u,n._zdz (1959) becauaa Applicant oaa not fully appraised o£ the nature of thc charge or the culpable mental state of rocklaaa in relation to tnic offense of injury to a child and the consequences ct such culpnblc_mcntal state when sentencing Applicant¢-counaoi performance ucc deficient because ho was unauaca ms m'“¢u m ‘ nme 5 WRZT NC¢ WOW¢§?ZGG-R€A§ that the omitted culpable mental state of recklooo from the _ indictment by thc Stato ucc o detect of substance and £oilod to charge a purported o££on wherefore Applicant`aaoorto that had trial counsel gathered the facto of too case and governing law to protect thoirighto of the accused ao oct out in Baparto Lilly 656 Sw 2d 490 Tx. gr. npp. 1983, and counsel filed tho_motion under 37.07 of the Tox. Codo crim. Pcoo, Compolling the atata to notify Applioant nrior to too punishment phaoo to'noti£y Applicant of ita intent to ucc oxtranooun offenses or bad acts of Appliconts past conduct during tho punishment¢ instead of just eliciting highly inllamatory extraneous offense or bad acts ao to being a drug collar with no plauaablo basis in strategy as sat out in dupatte duane 601 sw 2d 379, 372 (Tox. crio. app. 1980} counaol would have also bean aware 'that on objection van necoooary to the Statos omitted culpable montal"" state of reckless from the indictment and thereafter filed a motion to quash due to`a defect of substanco in accordance with Tox. code cria. proc.rzv.OB and Studer v. duane 799 sw zd. 263 (Tx. cz. App. 1990) Trial counool aaa clearly ineffective in tva light duparte lilly 656 3d 2d 490 (1983) vernandea u. state 726 sw 2d 53 (1986) and strickland v. uaahington 466 u.s. 687 (1984) and had it not been found to novo commitad said offense rockland duo to testimony cf Applicanto actions of impulsively and out of frustration. tv marcel uavio¢ state that all the forgoing is truo and contact and tree of perjury. \ ‘ (oaw) cortez naviS/ { ooc.:~cxo 0 nom W.n°h nome°n ~- 13°71 PH 3532 Abilono¢ Toxao , vmi M¢om's common mo s