Autry, Bobby Drew

APPEAL NO. WR-81,972-04
BOBBY DRE~·J AUTRY IN THE COURT OF CRIMINAL
vs. APPEALS OF TEXAS AT
THE STATE OF TEXAS ;;,
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. RECEIVED IN
. _MO_T_I_O~_.J.:Q~~~~!:!~ __Q_~_t-1.:\.~~-·
DA.~g-~ COURT OF CRIMINAL APPEALS

TO THE HONORABLE COURT OF APPEALS~ JUN 05 2015
COMES NOW 1 Bobby Drew Autry 1 the Movant rierein, and files th-
·h Abel
291A"OC't~ ,..le!i''<
" ..,J.a,.:Jv. ~9 l
is, his motion for writ of mandamus, to compe 1 t1e . st uulC1a
District Court to produc2 exculpato~y evidence ahd to appoint the
M~vant with counsel for the ordered evidentiary inv8stigaticn, and
in suppcrt thereof would show the Court as follows:
I

The Movant~ by and through court appointed counsel, Gary D.
Unell, pled guilty to and was sentenced to five (5) years in the
Texas Department of Criminal Justice - ID for the offense of inde-
cency with a child by contact on April 13, 2004. The sentence be-
gan on April 13, 2004 and back time was granted to January 18~ 20-

03. The Movant was released from TDCJ - ID on January 18, 2008.

II
The Movant filed for Writ of Habeas Corpus on July 17, 2014.
The State filed its initial response on August 1; 2014. The Mova-
nt filed a supplemental memorandum on September 17~ 2014 all as t-
he record reflects. The State filed a supplemental response to M-
avant's writ of habeas corpus on May 29 1 2015. The Movant now fi-
les a rebuttal to State's supplemental response alleging that the
Reporter's non-tranccribcd notes ~rc ~issing and or destroyed. The
Reporter'·s Record is clearly altered and or manufactured. On page 3
line 3 the record clearly shows the Movant's name as being Bobby
1
Drew Autry~ and the Cause No. is F03-25657~ [The cur~ent cause no ..

i.s W03-25657-U(A)]. On page 6 line 24-25 the Movant's attorney is
recorded as saying the Movant's name is Bobby Gene Autry. The Mo-

vant's attorney did not say this in Court on April 13~ 2004. He

definitely knew what the Movant's name was. He wouldn't have sta-

ted Movant's name as being something other than what it was. On
page 7 lines 5-7 the Movant is recorded as saying his name is Bob-
by Gene Autry. The Movant submits that these are not simple typo

mistakes. The two words have very different sounding pronounciat-

ions. (Drew vs. Gene). On page 9 lines 19-21 the Court itself is
recorded as saying that Movant's name is Bobby Gene Autry after e-

arlier stating the Movant's name as being Bobby Drew Autry. On p-

age 10 lines 10-12 the Court goes off the record. On page 15 lin-
es 18-20 the Court again is recorded as saying Bobby Gene Autry.

Page 16 line 1 the Movant is again recorded as stating his name as

being Bobby Gene Autry. The Movant has never stated his name as

being Bobby Gene Autry. The~Movant asserts that these records are

a product of fabrication. And he further asserts that the Report-

er's non-transcribed notes are missing and or destroyed.

III

On October 6~ 2011 the Court of Appeals Fifth District of Te-

xas at Dallas ordered the 291st Judicial District Court to produce

missing Reporter's Records from April 13~ 2004. The Movant was n-

ever contacted as this order states he should be. The Movant wou-

ld have wanted to prosecute the appeal. On January 6, 2012 the C-

ourt of Appeals Fifth District of Texas at Dallas filed two (2) m-

ore orders to have the 291st Judicial District Court produce the

missing records .. The Mo~ant is not aware of the date the current

Reporter's Record was filed. The Movnat·submits that 'this Deriod

2
of time was sufficient to alter and fabricate this record~ The M-

ovant would request this Honorable Court to order the original no-

n-transcribed notes to be produced.
IV
The Movant submits that the A.D. A. Erin Hodge had exculpatory_:

evidence on April 13, 2004. The Complainant's had recanted:and t-
old the A.D.A. Erin Hodge that they wrote no statements against t-

he defendant. The Movant's attorney did not act on this evidence
or file for a directed verdicit_of not guilty. He simply did not
act on this evidence. He further went along with the State having

the Movant sign a Judicial Confession. If the .. State's only evide-
nce, the judicial confession, had been objected to by counsel, the

State would have no evidentiary support to convict.

A claim of no evidence is cognizable on habeas because where
there is no evidence to support .. a conviction, the Movant's due pr-

ocess rights are violated. See; Ex Parte Perales~ 215 s.w. 3d 418,

419-29 (Tex. Crim. App. 2007). However: a no-evidence challenge

is cognizable only where the record is "devoid" of evidentiary su-

pport for a conviction. See Id at 420. Without the Judici~l Conf-

ession the State held no evidence. Had the Movant's counsel obje-

cted to the judicial confession~ and the Judge overrule the objec-

tion~ .the Judge would have erred in that the Complainant's had re-

canted and maintained that they wrote no statements against the d-

efendant. Therefore there was no allegations of any crimes ever

taking place. The Movant now shows the Court that all parties pr-
esent knew of tne~juaicial confession prior to tne nearing. As w-

ell as all parties knowing of the recantations prior to the heari-

ng. The Movant submits this is prejudice and bias.

3
 v
The Movant would now request this Honorable Court to order t-

he 291st Judicial District Court to produce the exculpatory evide-
nce~ [The Complainant's RecantationsJ, or deposition of Erin Hodge
and Gary D. Unell, to record their knowledge of the Complainant's

Recantations. As well as why counsel did not object to the State-
's judicial confession. And why he did not act on the exculpatory
evidence of the recant~tions. 11
An exception to the preservation
of error requirement is a Constitutional Claim of Ineffective Ass-
istance of Counsel where proper investigation or objection would
have preserved the error and there is no proper reason why counsel

did not act. See; Ex Parte Harrington 1 310 s.w. 3d 452 (Tex. Crim.
App. 2010).

VI
The Movant maintains he is Actually Innocent of the crimes as
charged in the indictment as demonstrated by the Complainant's Re-
cantations. Complainant's Recantations are grounds for investiga-
tion: prayerfully with appointed counsel to Movant.
Federal due process is violated when an innocent J?erson is incar-

cerated: and the Court has held that this applies wiether the def-
endant has pled guilty or not guilty~ as ground for Writ of Habeas
Corpus, applies with no less force when the{ conviction is obtain-

ed by a bench trial or a guilty plea. See; Ex Parte Tuley, 109 S.
w. 3d 388 (Tex. Crim. App. 2002). Tex. Code of Crim. Proc. 64.03
(b) includes judicial confession~ In cases involving a recantati-
on by a Complainant mf witness, counsel should request a "live he-
aring'' because credibility is al~ays a key issue. The importance

of a Trial Court's finding on credibility is amply demonstrated by

4
the Court~s brief opinion granting relief in; Ex Parte Harmon, 116
S.W. 3d 778 (Tex. Crim. App. 2002), in Harmon~ the applicant alle-

ged that he was actually innocent, as demonstrated by the Complai-

nant's affidavit in which she stated that her trial testimony was

false. In another case regarding a recantation by the Complainan-
t's the Court granted relief on the basis of an involuntary plea;

Ex Parte Zapata~ 235 s.w. 3d 794 (Tex. Crim. App. 2007) 1 the Court

granted relief in the situation where the app1.icant was not aware,

at the time he entered his plea~ that the Complainant's had recan-
ted their accusations against him and would not have testified ag-

ainst him at trial. The applicant had learned of the recantations

after the entry of his plea. In this instant writ the Movant ass-
erts that he did not know of the recantations until after he had

already pled guilty and his fear of the Court and his being on he-
avy doses of psychotropic medications obstructed his ability to a-
ct and his counsel had the duty to act for the Movant.
VII

The Movant had absolutely no understanding of the proceedings
against him. The Movant cannot waive a right that he does not un-

derstand, and nowhere in the record available to the Court is the-

re any place that explains to the Movant what his right to a jury

trial entails. He is not informed that the State has the burden

of proof beyond a reasonable doubt on all elements of the offense.

He is not informed of his right not to be a witness against himse-

lf at the trial. He is not informed that he is presumed innocent

until the State proves each and every element beyond a reasonable

doubt to all 12 jurors. He is not informed that if one juror doe-

sn't find that he committed a crime beyond a reasonable doubt~ he

cannot be convicted. And nowhere in the record does it show that
5
the MoY~nt is informed that he has the right to confront and cross

examine anyone who says that he committed a crime against them.

The recantations of the Complainant's in this case are favorable

to the Movant and it is material to this case. Maryland v. Brady~

373 u.s. 83 (1963); Napue v. Illinois: 360 u.s. 264 (1959)~ the
State has the duty to disclose evidence favorable to the accused

~which is material to guilt or innocence or punishment~ Kyles v.

Whitley~ 514 u.s. 419 (1995) this document bears on the actual in-

nocence of the Movant, and it corroborates the Movant's assertion

that an innocent man pled guilty because he was in fear of the sy-

stem. This evidence is exculpatory~ and to deny the Movant evide-
nce that would show that he is unjustly incarcerated violates due

process of law. U.S. Const. Amend. V and XIV; Tex. Const. Ar~ 1 s-

ec. 19; See also; Oklahoma v. Ake, 470 u.s. 68:(1985) .

.t1.Q.v~IYJ~-~-X~~¥-F;.~
Wherefore, premises considered~ the Movant prays that this

Honorable Court will grant the Writ of Mandamus and order the 291

st Judicial District Court to produce the exculpatory evidence and

to order .. the production of the non-transcribed notes of the Court

Reporter. The Movant prays that this Honorable Court monitor the

291st Judicial District Court due to Movant's assertion that the

District Court is not following the Court of Criminal Appeals ord-

ers as directed. MOVANT SO PRAYS;

RE

'S-Oiso-y"'". --
. u- rymm:T9~
McConne Unit ·
3001 s. Emily Drive
Beeville:·Texas 78102

6
 INMATE'S DECLARATION
--·---·----·-----=------.---
~~ Bobby Drew Autry, the Movant herein, being incarcerated in the
Texas Department of Criminal Justice - ID, McConnell Unit, do ner-
eby dec~are under penalty of perjury that the above motion is true

and correct to the best of my knowledge.

Bobby D _ Autry #1701196

«1/J.ti_JJ-f..&2_lf_~-·-
~gned:

I, Bobby Drew Autry~ the Movant herein, being duly sworn abo-
ve, certify that a true and correct copy of the above motion was

pla~ed in the u.s. rnailbox"at the McConnell Unit in Beeville, Jex-
as and served on tne following: Court Clerk - Abel Acosta: Court
of Criminal Appeals~ P.O. Box 12308 Capitol Station~ Austin, Texas
78711.

7
 APPEAL NO. WR-81,972-04
TRIAL COURT CAUSE NO. WOJ-25657-U(A)
=================================================================
IN THE COURT OF CRIMINAL APPEALS
++++++++++++++++++++++++++++++++++++++++

BOBBY DREW AUTRY
APPLICANT
vs.

THE STATE OF TEXAS
TEXAS DEPARTMENT OF CRIMINAL JUSTICE - ID
WILLIAM STEPHENS, DIRECTOR THEREOF:
RESPONDENT
++++++++++++++++++++++++++++++++++++++++

REBUTTAL OF APPLICANT TO
STATE'S SUPPLEMENTAL RESPONSE
TO APPLICATION FOR WRIT OF HABEAS CORPUS
++++++++++++++++++++++++++++++++++++++++

Applicant Represented p:o Se
++++++++++++++++++++++++++++++++++++++++

IDENTITY OF THE APPLICANT
BOBBY DREW AUTRY #1701196
WILLIAM G. McCONNELL UNIT
3001 S. EMILY DRIVE
BEEVILLE, TEXAS 78102
++++++++++++++++++++++++++++++++++++++++

i
 ADDENDUM

The Applicant alleges that the Reporter's Record, (The origi-

nal non-transcribed notes), are missing.

The Applicant alleges that the records were destroyed or los-

t.
Applicant alleges that the current Reporter's Record is fabr-

icated and doctored.

The AppliC.~Bt alleges that there are in ~fact" recantations

from the Complainant's. And that the Complairiant's orally stated-

ed that they wrote no statements against the defendant.

The Applicant alleges that there was bias and prejudice with-

in the Court during his plea hearing, in that all parties knew of

the recantations prior to the hearing, and that all parties knew

the Judicial Confession was filed Febuary 5, 2003 and not signed

until~.April 13, 2004.

The Applicant alleges Malicious Prosecution"by the Court.

The Applicant alleges Ineffective Assistance of Cou::~nsel on a
compounded scale allegations herein.

The Applicant alleges Involuntary Plea in that he was never
\ .
informed of what his right to a jury trial entailed.

The Applicant alleges that he was never informed that he had

a right to confront and cross examine anyone who alleged he commi-

ttea a crime against tnem,

The Applicant maintains that there is nowhere in the record

where anyone testifies that the Applicant committed any offense.

ii
 A peu...\ 1\)o. w~- ~ t, 'i 7J -o Y
p WRIT NO. WOJ-25657-U(A)
Ex Parte § IN THE 291ST JUDICIAL
§ DISTRICT COURT OF
BOBBY DREW AUTRY § DALLAS COUNTY, TEXAS

APPLICANT'S RESPONSE TO
STATE'S SUPPLEMENTAL RESPONSE TO APPLICATION

FOR WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Bobby Drew Autry, the Applicant herein, and files
this, his reaponse to the State's Supplemental response to applic-
ation for writ of habeas corpus, and in support thereof would show
the Court as follows;
I

The Applicant, by and through court appointed counsel, (Gary
D. Unell), pled guilty to and was sentenced to five (5) years in
the Texas D~partment of Criminal Justice - ID, for indecenc¥with
a child by contact. The judgment ordered the Applicant to five (5

) years in prison. See State's Exhibit 4.
l'I

The State notes that Applicant had a previous conviction for
indecency with a child by contact under Section 21.11(a)(1) of the
Penal Code in cause number F94-26520-WU. The Applicant was requi-
red to register for 10 years. The record, which Applicant cannot
obtain due to indegence and the ~nability to hire counsel or inve-
stigator's to research the case and to obtain these documents for
the Applicant, will show that Applicant had only a post 10 year r-
egistration requirement. Not a life time registration as the Sta-
te so notes. See States Response page 2 foot note 3.
1
 III

The Applicant claims Actual Innocence as demonstrated by the

Complainant's Recantations that the State seems to be covering up.
The Reporter's Record is devoid of the A.D.A. Erin Hodge stating

in the Courtroom that the witnesses recanted. There is a void in

the Reporter's Record on page 10 line 10-12. The Applicant submi-
ts that this must be the point where the A.D.A. Erin Hodge said t-

he witnesses recanted. The Honorable Vickers Cunningham did in f-

act ask the A.D.A., What Evidence Do You Have? And her reply was,

NONE YOUR HONOR, THE WITNESSES RECANTED AND MAINTAIN THAT THEY WR-

OTE NO STATEMENTS AGAINST THE DEFENDANT. That is word for word e-

xactly as it was said in the Courtroom on April 13, 2004. Why is

this evidence missing from the records? The Complainant's did in

fact recant their earlier allegations.

IV

The Applicant submits that he is cognizant that there is the

"Judicial Confession" but maintains he has no knowledge of signing

a confession. He also understands, that reading the 18 page Repo-

rter's Record that the facts do not look so good, or in his favor.

He further submits that the Court proceeding he remembers is not

quite how this record reflects it.

v
The Applicant submits this Reporter's Record attached to the

State's response is doctored and or manufactured to suit the Cour-

t's legal foundation. The record clearly reflects that the Appli-

cant's name is Bobby Drew Autry. Applicant's appointed counsel,

here in the record, states the Applicant's name is Bobby Gene Aut-

ry, and the Applicant himself is recorded as saying his name is B-
2
abby Gene Autry. The Applicant's name is Bobby Drew Autry and for

the record, the difference between Drew and Gene are great pronou-

ciations. The Applicant submits and maintains that the Reporter's
Record is doctored and or manufactured in its entirety. See Repo-

rter's Record page 3 line 3, page 6 line 25, page 7 line 7, page 9

lines 20-21, page 15 lines 18c20, page 16 line 1. The Applicant
has never in his life stated his name as being Bobby Gene Autry.

The record clearly reflects that the Applicant's name was in fact
Bobby Drew Autry. The Applicant's attorney knew his name as well

and would have .never stated on the record that his client's name

was something other than it was. The Applicant claims this is not

a simple case of typo mistake. These words are very clear and co-

ncise. The Applicant maintains the Reporter's Record attached to

the State's Supplemental response are not true and now request the

Court to investigate this matter.

VI
The Complainant's did recant their allegations. The Applica-

nt request the Court to ask for discovery. The A.D.A. Erin Hodge

had in her possession recantations from the Complainant's and the

Applicant's attorney knew it as well as the Honorable Vickers Cun-

nignham knowing the recantations exsisted. The Applicant surely

cannot argue that it is not his signature on the Judicial Confess-

ions. The Applicant maintains that he was in a psychotropic medi-

cation drug induced state and this proceeding should have never h-

appened as it did. The Officer's of the Court wanted to attend a

funeral of a fellow Officer oi Lhe Court's, another A.D.A. who had

committed suicide to the Applicant's knowledge. This funeral was

to happen on April 13, 2004, and the ·Applicant's attorney told him

3

-- -~-- ------------ ··----·-·
that they wanted to go to this funeral so the Applicant should pl-

ead guilty as to resolve the case.

VII
The burden Qt proof is on the Applicant to allege and prove

the alleiations in which he supports. The Applicant does not have

internet access or access to a computer to aid in his fight for j-

ustice. The Applicant contends that he never "talked" with his a-

ttorney about the facts of this case, See RR page 7 lines 12-14 a-
nd he further submits that his attorney never once talked to any

of his family members about the case. Applicant's sister Jackie
Creel, [970-596-9205, 970-944-0326], [jkecreel@aol.com], tried on

numerous occasions to speak with A~plicant's attorney and he never
.....__,
returned any of her calls, and she never spoke to him about this

case. So, Applicant submits that his attorney was lying on the r-

ecord, or in tact these Reporter's Records are manufactured to lo-

ok as though all legal asspects were followed to a tee.

VIII
On October 6, 2011 the Court of Appeals Fifth District of Te-

xas at Dallas ordered the 291st Judicial District Court to produce

missing Reporter's Records from April 13, 2004. The Applicant was

never contacted as this order states he should be. The Applicant

would have wanted to prosecute the appeal. On January 6, 2012 the

Court of Appeals Fifth District of Texas at Dallas filed two (2)

more orders to have the 291st Judicial District Court produce the

missing Reporter's Record. The Appl~cant does not know the exact

date the current Reporter's Record was filed. The Applicant subm-

its that this period of time was sufficient to alter the record.

The Applicant request a hearing on the State's Exhibit 3, (Report-

4
er's Record), by Nancy Brewer, Official Court Reporter for the 292

nd Judicial District C?urt. Why the delay in responding to the C-

ourt of Appeals order, and exactly who helped prepare this docume-
nt. The Applicant submits that with proper in~estigation by a non

bias party will more than likely uncover conspiracy, document man-

ipulation, evidence manufacturing, evidence tampering, and even m-

ore corruption of Dallas County Officials. The Applicant is cogn-

izant that the above is merely rambling when he has no evidence or
documentation to back up his allegations. As stated above he has

no access to said documents or sufficient access to Court records

to research.

IX
It is clear by the Court of Appeals orders, and the length of

time required to produce the record, that the record was not filed

with the District Clerk as prescribed by Law. See;

Tex. R. App. Proc. 13.6 (When a defendant is granted deferred adj-

ucication for a felony other than a State Jail Felony, and no app-

eal is taken, the court reporter must file the non-transcribed no-

tes of original recording of the proceeding with the District Cle-

rk within 20 days after the expiration of the time for perfection

appeal; and the district clerk must retain the notes for fifteen

(15) years from that date.) The non-transcribed notes or the ori-

ginal recording seem to have been in the possession of the Court

Reporter herself. This is surely a violation of the Law, and in

more ways than one is effecting the Applicant.

5
 X
The Applicant should be afforded a hearing on the issues pre-

sented in this response and his Writ of Habeas Corpus as well as
his Supplemental Memorandum, for the Court to compel the producti-

on of exculpatory documents, (Complainant's Recantations), and to

have the Court to appoint an expert or counsel for the Applicant.
Having no hearing on these issues presented herein and of his pre-

vious documentation violates due process and due course of law pr-

ovisions in the United State's and Texas Constitution.

XI
The Applicant cannot waive a right that he does not understa-

nd, and no where in the record available to the Court is there any

place that explains to the Applicant what his right to a jury tri-

al entails. He is not informed that the State has the burden of

proof beyond a reasonable doubt on all elements of the offense.

He is not informed of his right not to be a witness against himse-

lf at the trial. He is not informed that he is presumed innocent

until the State proves each and every element beyond a reasonable

doubt to all 12 jurors. He is not informed that if one juror doe-

sn't find that he committed a crime beyond a reasonable doubt, he

cannot be convicted. And nowhere in the record does it show that

the Applicant is informed that he has the right to confront and c-

ross examine any one who says that he committed a crime against t-

hem.

XII
The recantations of the Complainant'~ in this case are favor-

able to the Applicant and it is material to this case. Maryland v.

6

~.'
Brady, 373 u.s. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959),

the State has a duty to disclose evidence favorable to the accused

which is material to guilt or innocence or punishment, Kyles v. W-

hitley, 514 u.s. 419 (1995) this document bears on the actual inn-

ocence of the Applicant, and it corroborates the Applicant's asse-

rtion that an innocent man pled guilty because he was in fear of

the system and the Court and this should clearly show_that the Ap-

plicant was under the influence of psychotropic medications.

This evidence is exculpatory, Maryland v. Brady 373 u.s. 83

(1963). To deny the Applicant evidence that would show that he is

unjustly incarcerated violates due process of Law. U.S. Canst. Am-

end. V and XIV; Tex. Canst. Art. 1 sec. 19; See also; Oklahoma v.

Ake, 470 u.s. 68 (1985).
XIII

The Applicant asserts that the Honorable Vickers Cunningham,

and Applicant's attorney, Gary D. Unell knew of the Complainant's

recantations prior to the hearing April 13, 2004. Unless the par-

ties involved are prepared to lie, then a deposition would be ans-

wered just as the Applicant has stated it. The Complainant's did

in fact recant their allegations against the Applicant. Every pr-

ocedure which would offer a possible temptation to the average ma-

n as a judge to forget the burden of proof required to convict th-

e defendant, or which might lead him not to hold the balance nice,

clear, and true between the State and the accused denies the latt-

er due process of Law. See; Tumey v. Ohio, 273 u.s. 510, 532, 47

S. Ct. 437, 71 L. Ed. 749 (1927, A claimant need not prove actual

bias to make out a due process violation. See; Johnson v. Mississ-

ippi, 403 U.S. 212, 215, 91 S. Ct. 1778, 29 L. Ed. 423 (1971).

7
 XIV
The Applicant maintains he is Actually Innocent of the crimes

within the indictment as demonstrated by the Complainant's Recan-

tations. Complainant Recantations are grounds for investigation.

Federal due process is violated when an innocent person is incarc-

erated, and the Court has held that this applies whether the defe-

ndant has pled guilty or not guilty, as ground for Writ of Habeas

Corpus, applies with no less force when the conviction is obtained
by a bench trial or guilty plea. See; Ex Parte Tuley, 109 s.w. 3d

388 (Tex. Crim. App. 2002) Texas Code of Criminal Procedure 64.03

(b) includes Judicial Confession. The Court extended the availab-

ility of actual innocence claims to guilty plea situations. This

opinion expanded the Court's actual innocence jurisprudence as set

out in; Ex Parte Elizondo, 947 s.w. 2d 202 (Tex. Crim. App. 1996).

In cases involving a Recantation by a Complainant or Witness, cou-

sel should request a "live hearing" bacause credibility is always

a key issue. The importance of a Trial Court's finding on credib-

ility is amply demonstrated by the Court's brief opinion granting

relief in; Ex parte Harmon, 116 S.W. 3d 778 (Tex. Crim. App. 2002)

In Harmon, the Applicant alleged that he was actually innocent, as

demonstrated by the Complainant's affidavit in which she stated t-

hat her trial testimony was false. Due Process violations in; Ex

Parte Carmona, 185 S.W. 3d 492 (Tex: Crim. App. 2006), the Applic-

ant was adjudicated guilty of sexual assault based entirely upon

perjured testimony. He filed a petition for habeas relief, claim-

ing his release to deferred adjudication was revoked without due

process of Law. The witnesses against the Applicant either recan-

ted their testimony, or their bias and lies had been exposed.

8
In an interesting case regarding a Recantation by the Complainant-

's, the Court granted relief on the basis of an involuntary plea;

Ex Parte Zapata, 235 s.w. 3d 794(Tex. Crim. App. 2007) the Court
granted relief in the situation where the Applicant was not aware,

at the time he entered his plea, that the,,Complainant's had recan-

ted their accusations and would not have testified against him at

trial. The Applicant had learned of the recantations after the e-

ntry of the plea but before sentencing.

No objection of this by Applicant's attorney failed to prese-

rve the error, although Applicant's attorney knew of the recantat-

ions prior to the hearing. "An exception to the preservation of

error requirement is a Constututional Cl~im 6f Ineffective Assist-

ance of Counsel where proper investigation or objection would have

preserved the error and there is no proper reason why counsel did

not act. See; Ex Parte Harrington, 310 S.W. 3d 452 (Tex. Crim. Ap-

P· 2010)." The VI·Amendment right to counsel in a criminal trial
includes "the right to the effective assistance of counsel. ,--See;

McMann v. Richardson, 397 u.s. 759, 771 n 14, 90 S. Ct. 1441, 25

L. Ed. 2d 763 (1970). The right extends to "all critical stages of

the criminal process," See; Iowa v. Tovar, 541 u.s. 77, 80-81, 124

S. Ct. 1379, 158 L. Ed. 2d 209 (2004), counsel has a duty to inve-

stigate all reasonable lines of a defense, or make reasonable det-

erminations that such investigations are not necessary, Strickland

[.] See Also; Fisher v. Gibson, 282 F. 3d 1283 (CA 10 2002).

XV
Defense counsel had a duty to file a motion to suppress the

Judicial Confession, or should have never let it come to fruition.

He also had a duty to file a motion for dismissal upon learning of

9
the Complainant's Recantations, or in the alternative asking for

a directed verdict of not guilty. This has to be judicial bias a-

nd Prejudice with all parties knowing of the recantations prior to
the hearing, simply because they wanted to attend a funeral of a

fellow officer of the Court. This should not be: allowed to stand

and in fact it appears that evidence is being covered up.

XVI
The Applicant asserts that if defense counsel had investigat-
ed the mental status of the Applicant, and the reason why the Com-

plainant's had recanted, and placed this documentation on the rec-

ord before the Court, the Court could have then considered every

issue on the merits. While it is unlikely that we can determine

with precision what the results of the proceeding would have been

if counsel had not erred, ihe breadth of evidence adduced at an o-

rdered evidentiary hearing would have been sufficient to undermine

our confidence that Applicant's attorney would have advised him to

plead not guilty rather than accept a plea bargain when the State

held no evidence other than a Judicial Confession which should of

been objected to. After the Recantations the State held no evide-

nee of any crime and would not have been able to substantiate a g-

uilty verdict at any type of trial.

Counsel's unwillingness to challenge the State's case to a f-

ull adverse testing prejudice him in the greatest of ways. See;

Fisher v. Gibson, 282 F. 3d 1283 (CA 10 2002).

XVII
The Applicant shows that the question in this appeal is whet-

her the Applicant's right to the effective assistance of counsel

was constructively denied is a mixed question of law and facts, s-

ubjected to de novo review. cf, Strickland, 466 u.s. at 698, 104
10
S. Ct. at 2070. The Applicant shows this Court that his claim sh-

ould not be reviewed under the Strickland analyzed, but under the

Cronic. He asserts, an ineffective assistance claim that proves

prejudice is analyzed as a structual error and cannot be waived.

See; Arizona v. Fulminate, 499 U.S. 279, 307-09 (1991). Trial er-

ror is error which occured during the presentation of this case to

the Court, and which its admission was not harmless beyond a reas-

onable doubt. Id. at 307-08. It is well extablished that a defen-

dant requires the guiding hand of counsel at every stage in the p-

roceedings against him. See; Powell v. Alabama, [omitted]. Moreo-

ver, critical stages of a defendant's trial undermine the fairness

of the ~roceeding, and therefcire re4uires a presumption that the

defendant wa~ prejudice by such deficiency. See; United States v.

Cronic, [466 U.S. at 659].

XVIII

The Applicant's attorney had a duty to present all evidence

favorable to the defense. The Recantations were favorable to the

defense as well as showing of the Applicant's mental history. The

evidence shown, by the current record, was worthy of adversarial

challenge. Counsel simply did not act. This shows prejudice.

XIX

The Applicant would now show this Honorable Court tht there

is nowhere within the record an~ type of Terroristic accusations

against the Applicant. There is no testimony or witness statemen-

ts to claim any form of Terroristic Activity. This is cause to o-

vercome the A.E.D.P.A. See; Martinez v. Ryan 132 S.Ct. 1309 (2012)

Counsel was not provided for the Antiterrorism Effective Death

Penalty Act.

11
 XX

The Applicant was never afforded counsel duriqg the process

of this evidentiary investigation. How is it that Applicant's due
process rights are being protected? If counsel was appointed, the

Applicant not once heard from such counsel. It is the Applicant's

understanding that on order of remand for evidentiary investigati-
on the Applicant is to have counsel appointed to confer with. Al-

so that Applicant's allegations can be investigated properly and

without bias.

XXI

Applicant reasserts that the Reporter's Record is not the or-

i5inal notes. The Reporter's Record which the Applicant received

is not a certified copy. There is no signature·on this document.

Applicant submits Law was not followed in that the Court Reporter

did not file the document· with the District Clerk an:i maintained

the original notes herself. This allegation is current and new.

The Applicant request a copy of the original transcribed notes or

to have counsel appointed as to .protect the Applicant's rights wh-

ich by all the investigations of corruption in the Frank Crowley

Courts Building and that of other City of Dallas Officials, inclu-

ding Susan Hawk, the current District Attorney, the Applicant is

sure to not receive impartial balance, and the bias will continue.

XXII

The Applicant cannot imagine the Court going to a Trial with

a jury with only a Judicial Confession. If this is the case then

counsel had the duty to motion to suppress this Judicial Confessi-

on. He surely was not adversed. The evidence within the current

12
Reporter's Record is truely worthy of adversarial challenge. A fa-
ilure to act on exculpatory evidence, and knowing of the recantat-
ions prior to the hearing, is surely prejudicial and bias. This
is structual defect as stated above. The Applicant surely cannot
be held accountable for not requesting a competency evaluation, w-

hen it is the duty of the appointed counsel to inform the defenda-
nt of the entire process against him. The Applicant had no idea

he could request anything outloud or even to his attorney. The A-
pplicant has and has always had a phobia toward authority. The A-
pplicant was in fear in the Courtroom and if not under the influe-
nce of psychotropic medications his bi-polar tendencies would have
been a2~earant. The Applicant has bo way of obtaining the records
from Parkland Jail Health, Mental Health Department due to his in-

degence. He would now request the Court to obtain copies of his
Mental Health Records during the period of January 18, 2003 and
April 13, 2004. These records should clearify the fa~t that the
Applicant was in fact in a psychotropic drug induced state of mind
whereas it would have been hard for the Applicant to totally unde-
rstand everything that actually did happen during this hearing.

The Applicant would show this Honorable Court, in his Mental Heal-
th Records, that he suffers from different phobias, bi-polar diso-
rder, schizophrenic tendencies, and hallucinations of spirits. T-

he Applicant is paranoid of conspiracies which is a fact he asser-
ts here in that the parties inv6lved all knew of the R~cantations

prior to the hearing on April 13, 2004. That would be conspiracy.
All three (3) parties, the Honorable Vickers Cunningham, the A.D.
A. Erin Hodge, and the Applicant's attorney Gary D. Unell. And

the Applicant would also show this Honorable Court that the same
13
parties as stated above also knew the Judicial Confession was fil-
ed on Febuary 5, 2003 and not signed until April 13, 2004. The A-

pplicant shows in this allegation that there was in fact conspira-

Cy involved in his conviction. The Trial Judge did ask the Appli-

cant's attorney, Is Your Client MHMR? Why this information is not

~n the current document, Reporter's Record, is unknown to the App-

licant. As well as the A.D.A. Erin Hodge answering the Judges qu-

estion of, What Evidence Do You Have? And her saying, NONE YOUR

HONOR, THE WITNESSES RECANTED AND MAINTAIN THAT THEY WROTE NO STA-

TEMENTS AGAINST THE DEFENDANT! All of this information was spoke
in the Courtroom on April 13, 2004. The Applicant can only assume

that i t was during the "off the record" time during the hearing.·

What would be the purpose of going off the record if everything w-

as really so legal? Again, the Applicant has no proof of this, he

can only pray that the Court will appoint a non-bias counsel to p-

rotect his rights for an evidentiary investigation. A claim of no

evidence is cognizable on habeas because where there is no eviden-

ce to support a conviction, the Applicant's due process rights are

violated. See; Ex Parte Perales, 215 S.W. 3d 418, 419-29 (Tex. Cr~

im. App. 2007). However, a no-evidence challenge is cognizable o-

nly where the record is "devoid" of evidentiary support for a con-

viction. See Id at 420. Without the Judicial Confession the State

held no evidence. Had counsel not erred, and suppressed the Judi-

cial Confession, the record would have been devoid of evidentiary

support. The Trial Judge would have erred in overruling couns-

el's motion to suppress due to the witness recantations alleging

no offense had taken place. An ordered evidentiary hearing with

depositions would show that the Applicant's attorney told him that

14
the State was not going to try the Hartman cases, the other two (2

)'cases mentioned in the record. He told the Applicant that they

wanted to attend the funeral of their friend and I shouldn't cause
any trouble for the Court. The Applicant's allegations are not i-

so lated incidents. The allegations compounded would result in a

de novo review of gll tbe evidence, not just the Judicial Confess-

ion. The Applicant seeks the Court_to order depositions for Gary

D. Unell and Erin Hodge to determine the merits of the allegation-

s. No guilty plea may be,accepted by the court unless it appears

that the defendant is mentally competent and the plea is free and

voluntary. See; Tex. Code Grim. Proc. Art. 26.13(b). If counsel

had investigated the Applicant's mental history the Court would h-

ave known that the Applicant was under the influence of psychotro-

pic medications. A declaration of guilt made under compulsion, d-

uress, or coercion is not a plea. See; George v. State, 20 s.w. 3d

130, 133 (Tex. App.--Houston[14th Dist.]2000, pet. filed).

The Applicant's attorney urged him to plead due to the Court Off1-

cer's wanting to attend said funeral. These facts are available

if the Court would just order an Evidentiary Hearing with deposit-

ions made under oath.

APPLICANT'S PRAYER

Wherefore, premises considered, Applicant prays that this

Honorable Court grant said actions and order a thurough evidentia-

ry investigation with depositions held under oath. Th~ Applicant

is confident that appointed counsel Gary D. Unell would not lie u-

itder oath and would show this Honorable Court that Recantations d-

id in fact exsist and were spoken about in the Courtroo~. The Ap-

plicant prays this Honorable Couit will grant any relief due as p-

15
rescribed by law and any £upreme Court presidence. The Applicant

prays that this Honorable Court grant the reiief listed above and
set aside the order which currently restrains his liberty. The A-
pplicant prays that this Honorable Court grant relief, at law or
in equity, general or specific, for which he is justly entitled.
APPLICANT SO PRAYS.

RE

#1701196
McConnell Unit
3001 S. Emily Drive
Beeville, Texas 78102
INMATE'S DECLARATION
I, Bobby Drew Autry, the Applicant herein, being incarcerated
in the Texas Department of Criminal Justice - ID, McConnell Unit,
do hereby declare under the penalty of perjury that the above res-
ponse to State's Supplemental response is true and correct to the
best of my knowledge.

CERTIFICATE OF SERVICE
I, Bobby Drew Autry, the Applicant.herein, being duly sworn
above, certify that a true and correct copy of the above response
was placed in the U.S. mailbox at the McConnell Unit in Beeville,
Texas and served on the following: Court Clerk - 291st Judicial
District Court, Frank Crowley Courts Building, 133 N. Riverfront

Blvd., Dallas, Texas 75207 and the Court Clerk- Abel Acosta,
Court of Criminal Appeals, P.O. Box 12308, Capitol Station, Austin
16
, Texas 78711, and file.

Bobby Drew utry #1701196

trkqJ l,~rs-
Date Signed:

17